FPSLREB Decisions

[1]    This matter deals with the indefinite suspension and subsequent termination of employment of Howard Yarmolinsky (the "grievor"), an auditor (AU-02) at the Toronto North Tax Services Office of the Canada Customs and Revenue Agency (CCRA) (as it was then known) for having allegedly committed a sexual assault while he was conducting a GST audit. As a result of the government reorganization announced on December 12, 2003, the CCRA changed its name to the Canada Revenue Agency (CRA).

[2]    By letter dated December 12, 2003, signed by Diane C. Emmett, Acting Director, Toronto North Tax Services Office, CCRA, the grievor was advised that his employment was terminated, effective that day (Exhibit E-1, tab 14):

This letter is further to the meeting held with you on December 8, 2003, wherein you were advised that a decision would be made regarding the status of your employment with the Canada Customs and Revenue Agency.

On October 22, 2003 the Canada Customs and Revenue Agency received information regarding an allegation that you had sexually assaulted a female employee at a taxpayer's place of business while conducting a GST audit.

On October 23, 2003 the Internal Affairs Division (IAD) was contacted to conduct an investigation into these allegations. You were interviewed on October 31, 2003. The IAD investigation determined that you had in fact sexually assaulted a female employee at the taxpayer's place of business, while conducting a GST audit. During the course of the interview, you admitted to having done so. It is my understanding that as a result of your actions, criminal charges have been laid.

Your actions are unacceptable and have brought the reputation of the CCRA, its employees, and the Canadian Public Service into disrepute. It is management's position that your behaviour clearly demonstrates that you have contravened the Code of Ethics and Conduct and irreparably damaged the employer-employee relationship.

Therefore, in view of the foregoing, by virtue of the authority delegated to me, and in accordance with Section 51(1)(f) of the Canada Customs and Revenue Agency Act, you are herewith given notice of the decision to terminate your employment with the Agency for reason of misconduct. Your termination takes effect at the close of business on December 12, 2003.

In accordance with your collective agreement, you have the right to grieve this decision at the final level of the grievance procedure no later than 25 days after receipt of this notification.

Details concerning any benefits, to which you may be entitled in regards to the termination of your employment will be forwarded to you at a later date.

[3]    Both counsel made brief opening remarks. Counsel for the employer raised an objection to my jurisdiction to hear the indefinite suspension grievance, stating that it was an administrative action rather than a disciplinary one and I therefore did not have jurisdiction. I made note of counsel's objection but decided to proceed to hear the merits of the case.

[4]    Counsel for the employer filed four exhibits and called five witnesses. The grievor's counsel filed eight exhibits and called one witness, the grievor's spouse; the grievor testified on his own behalf. A request was made, and granted, for the exclusion of witnesses. However, it was brought to my attention at the close of the hearing that Mrs. Yarmolinsky had sat through the testimony of a number of the employer's witnesses. I will address this in my reasons for decision.

[5]    Due to the sensitive nature of the allegation, both counsel agreed that I identify the person who reported the sexual assault as Ms. "X". As well, the location of the assault will be referred to simply as "a sun tanning salon".

Evidence

[6]    Diane Emmett has been the Assistant Director, Verification and Enforcement (Audit Division), at the Toronto North Tax Services Office, CCRA, since June 1996. At the time of the alleged incident, in October 2003, she was Acting Director.

[7]    The witness explained that the CCRA's mission is to enforce and promote compliance with the Income Tax Act and the Excise Tax Act and to provide responsible quality services by its auditors to Canadian taxpayers. As part of his duties as an auditor, the grievor met with taxpayers to apprise them of their obligations with respect to the various acts, to assist them in the event of non-compliance and to explain to them the reasons for an assessment (i.e. tax that they might owe to the government or a rebate to which they might be entitled).

[8]    The auditors who are sent out into the field have broad legislative powers. In fact, on the back of their government identification card, those powers are noted (Exhibit E-1, tab 15):

The bearer is authorized by law to administer and enforce the program legislation relating to revenue, and therefore can:

-	enter a place of business;
-	enter a personal residence, with the occupant's consent, where legally required;
-	require any person on the premises to give assistance and answer questions;
-	require a responsible person to accompany him or her where legally provided;
-	examine and copy documents; and
-	examine property.

[...]

[9]    As well as being provided with extensive technical training, the auditors are asked to familiarize themselves with the CCRA's "Trust and Integrity Policy" (Exhibit E-2). Ms. Emmett drew particular attention to the "Our vision" statement of the Policy, which states:

The Canada Customs and Revenue Agency (CCRA) will be recognized and respected by clients for its integrity, fairness, and innovation in administering high-quality, affordable programs.

Our progressive stance will encourage new intergovernmental and international partnerships, fostering greater government efficiency and stronger economic union.

[10]    The four enduring values that guide the CCRA are as follows:

• Integrity is the cornerstone of our administration. It means treating people fairly and applying the law fairly.

• Professionalism is the key to success in achieving our mission. It means being committed to the highest standards of achievement.

• Respect is the basis for our dealings with colleagues and clients. It means being sensitive and responsive to the rights of individuals.

• Co-operation is the foundation for meeting the challenges of the future. It means building partnerships and working together toward common goals.

[11]    Ms. Emmett stated that the tax system is based on voluntary compliance, which is approximately 95% overall. If the taxpayers trust the government, they comply. It is the key to the CCRA's success.

[12]    The witness reviewed the CCRA's "Code of Ethics and Conduct" (Exhibit E-1, tab 2), which states, in part:

[...]

The Code is designed to help you know what standard of conduct is expected of you as an employee when you serve at a customs post, carry out compliance activities, provide client services, respond to appeals, provide service to other employees, manage programs and resources, or carry out other important aspects of the CCRA's Mission. It calls upon you to fulfill your responsibilities in an ethical manner. The objective is to ensure that our tradition of integrity and professionalism is carried on and enhanced, to reinforce the CCRA's commitment to serve the public responsively, while supporting a work environment in which people are respected.

[...]

[13]    In the section entitled "Contact with the Public - Sensitivity and Responsiveness", it states:

The importance of courteous, prompt, sensitive and professional service to the public, in your official capacity, cannot be over-emphasized. In the eyes of many clients, you represent not only the CCRA but the entire Canadian Public Service.

[...]

[14]    Under "Possible Disciplinary Action If There is Misconduct", it notes:

[...]

Despite preventive measures by the CCRA and its employees, a few employees will contravene this Code of Ethics and Conduct, either explicitly or implicitly, and will engage in misconduct up to and including criminal activity. This could seriously disrupt public confidence in the integrity of the CCRA and its employees, and the Canadian Public Service. It will not be tolerated.

[...]

If you contravene the CCRA's Code of Ethics and Conduct, you could be subject to disciplinary action up to and including termination of employment. Any disciplinary measure taken against you would be based on the seriousness of the breach of conduct, and in accordance with the CCRA's Discipline Policy.

[15]    Ms. Emmett confirmed that the grievor had received a copy of the Discipline Policy; as well, it is posted on the CCRA's Website.

[16]    The witness stated that on October 22, 2003, she received a telephone call from a Mr. Don Renaud, of the CCRA's Investigations Unit, advising her that an officer from the North York Regional Police was alleging that an employee of the CCRA (the grievor) had sexually assaulted a taxpayer (Ms. "X") while conducting an audit.

[17]    A meeting was called to discuss the allegation and it was determined that a fact-finding exercise needed to be conducted. Present at the meeting along with the witness were Ann Mayo (Acting Assistant Director), John Tepelenas (Acting Section Manager), Al McCaie (Staff Relations Consultant) and Peter Delis (Communications Manager).

[18]    The witness directed Mr. Tepelenas to establish where the grievor had conducted his field audit on October 20 and 21, 2003, and to whom he had spoken. Ms. Mayo was directed to liaise with the officer in charge of the file, Detective Constable Brent Stitt. Ms. Mayo, however, was unable to speak with Detective Constable Stitt that day.

[19]    The next day, on October 23, 2003, at approximately 7:20 a.m., Ms. Emmett reached Detective Constable Stitt by telephone. She testified that he informed her that the grievor had allegedly sexually assaulted an employee of a sun tanning salon. He requested that she contact the grievor to have him report as soon as possible to the North York Regional Police Station. The grievor was a teleworker and only reported occasionally to the head office located at 5001 Yonge Street. Thus, she advised Mr. Tepelenas to contact the grievor at home to inform him of Detective Constable Stitt's request. When contacted, the grievor assured Mr. Tepelenas that he would comply.

[20]    Ms. Emmett convened another meeting that same day with Messrs. McCaie and Tepelenas, Ms. Mayo and John Boyce, a staff relations officer. At that meeting, it was decided that until more information was available, the grievor would not be assigned any more field audits, but he could continue performing his other duties from home. Field audits account for approximately one-third of an auditor's duties; duties such as conducting waiving exercises and file reviews account for the remainder. Ms. Emmett stated that she based her decision on the advice of the others present at the meeting and in large part because of the grievor's 27 years of employment without any prior discipline and good performance reports.

[21]    At approximately 1:20 p.m., Mr. Tepelenas contacted the grievor to advise him of this decision. As well, the grievor was asked to produce the sun tanning salon file so that Mr. Tepelenas could reassign it to another auditor.

[22]    Ms. Emmett stated that the following day, on October 24, 2003, she received a telephone call from Detective Constable Stitt advising her that after being interviewed, the grievor had been charged with sexual assault. He also informed her that the grievor had not been forthcoming during the interview and had denied that he sexually assaulted Ms. "X". Detective Constable Stitt subsequently decided that there was cause to arrest the grievor; he was later released on a promise to appear for a pre-trial hearing.

[23]    Ms. Emmett testified that in accordance with the CCRA's Discipline Policy, on October 24, 2003, she sent a memorandum to André St-Laurent, the Director of the CCRA's Internal Affairs Division, requesting an investigation into the alleged sexual assault (Exhibit E-1, tab 8). Later that day, she was advised by Adrian Sander, Regional Staff Relations, and by her immediate supervisor (whom she did not identify) that the grievor was to be suspended without pay because of the serious nature of the alleged misconduct, and pending the results of the Internal Affairs investigation.

[24]    John Tepelenas, who was Acting Section Manager at the time, testified that late in the day on October 24, 2003, he telephoned the grievor at home to request that he attend a meeting at 1:00 p.m. on October 27, 2003, at 5001 Yonge Street. The grievor was advised that he could be accompanied by a union representative. The grievor indicated that he would be present at the meeting.

[25]    Ann Mayo, the Acting Assistant Director, testified that although the grievor attended the meeting alone on October 27, 2003, Steve Eadie, of the Professional Institute of the Public Service of Canada (PIPSC), participated by teleconference. Messrs. McCaie and Tepelenas were also present. Ms. Mayo read out loud to the grievor a letter informing him that an internal investigation would be conducted in the near future (Exhibit G-1, tab G). He was advised that he was immediately suspended without pay and that further disciplinary action, up to and including termination of employment, was possible depending on the results of the Internal Affairs investigation. As well, the grievor was informed that Mr. Tepelenas would accompany him home to retrieve items that belonged to the CCRA. Those items included a computer and files. The grievor was then asked to sign the letter, and he did so.

[26]    Mr. Tepelenas stated that he did not accompany the grievor home but rather met up with him later in the day, about a block away from his house, and retrieved the said items.

[27]    Jim Cameron is a senior investigator with the CCRA's Internal Affairs Division. The witness testified that he was assigned this case on October 24, 2003, and on that same day, he met with Detective Constable Stitt. He ascertained that the grievor had been questioned and subsequently charged with sexual assault pursuant to section 271 of the Criminal Code of Canada, but was released on a "conditional release". Between October 24 and 31, 2003, Mr. Cameron interviewed a number of witnesses, which included Detective Constable Stitt, Ms. "X", Seta Cavdar, A/Team Leader, CCRA, a receptionist at a fitness centre located near the sun tanning salon, the general manager of the sun tanning salon and the grievor. Mr. Cameron stated that he advised the witnesses of the reason for the interviews and that they could be accompanied by an observer. During the interviews, they were again advised of the reason for the interviews, as well as the purpose of the investigation. They were reminded that they could be accompanied by an observer if one was not already present. As well, Mr. Cameron reviewed the CCRA's policy on "Internal Investigations into Alleged or Suspected Employee Misconduct" and advised the witnesses:

1. of the investigator's responsibilities;

2. that any notes taken during their interview would form the basis for the investigation report;

3. that they would have an opportunity to review the notes taken during their interview and, if required, make amendments for clarification purposes;

4. that they would be asked to initial the bottom of each page and sign the last page; and

5. that any information provided might be included in the investigation report and used by management for disciplinary purposes.

[28]    Mr. Cameron stated that the grievor contacted him on three different occasions prior to his interview, which was scheduled for October 31, 2003. He was undecided as to whether he should be accompanied by a union representative, a lawyer or his brother. In the end, the grievor's brother served as his observer, as his lawyer was unavailable.

[29]    Mr. Cameron summarized the events leading up to the sexual assault. During the afternoon of October 20, 2003, the grievor entered the premises of the sun tanning salon. Ms. "X" was the receptionist and as instructed by her employer, she assisted the grievor while he conducted his business. The grievor began by asking her questions about the operations of the sun tanning salon. She explained to him that of the six tanning beds on the premises, there were two distinct types of beds: a horizontal model, where a client would lie down, and a vertical model, in which the client would stand between two sections of tanning lights. While showing him the six tanning beds, Ms. "X" was asked several questions, which she found strange and inappropriate. One question asked was how many persons could lie down on the horizontal bed at the same time. Another question was whether the sun tanning salon was a front for massages and/or prostitution services.

[30]    Later that day, Ms. "X" was informed by her employer that the grievor would be meeting with the business's accountant the next day and would not be returning to the sun tanning salon.

[31]    The following day, however, at approximately 1:30 p.m., the grievor returned to the sun tanning salon and informed Ms. "X" that he had to revisit the tanning rooms to verify that the serial numbers on the beds matched those listed on the invoice that he had obtained that morning from the accountant. In the process of matching the serial numbers, the grievor sexually assaulted Ms. "X" by placing his hands on her breasts and attempting to kiss her. Ms. "X" retreated from the room and went behind the counter at the front entrance of the sun tanning salon. She asked the grievor if there was anything else he wanted and he said something to the effect of "nothing that you are prepared to do." He then stated that he was finished with the audit and would not be returning. After he left, Ms. "X" ran to a fitness centre located nearby and confided to the receptionist what had happened. A few minutes later, the general manager of the sun tanning salon was contacted. Ms. "X" recounted the assault and he advised her to tell her family, but that she should first report the assault to the police.

[32]    Mr. Cameron testified that, as a result of the sexual assault, Ms. "X" had to obtain professional help and received psychological counselling on a regular basis.

[33]    Mr. Cameron summarized his interview with the grievor as follows.

[34]    The interview began at 9:15 a.m., on October 31, 2003, with the grievor's brother, Larry Yarmolinsky, in attendance. The grievor adamantly denied that a sexual assault had taken place or that he had asked Ms. "X" if the sun tanning salon was a front for massage and/or prostitution services. After approximately two and one-half hours of questioning, he finally admitted his improper conduct. The grievor also admitted that he had set up the second visit, as there was no need for him to return to the sun tanning salon. Mr. Cameron stated that the grievor had not contacted the owner of the sun tanning salon, who had provided him with his cellular number in the event that the grievor needed more information or if his presence was required. He also stated: "This conflicted with bad judgement. It demonstrated that [the grievor] took a role in seeing that [Ms. "X"] was alone at the salon on his return visit."

[35]    Mr. Cameron stated that the grievor was stressed during his interview and expressed concern as to the impact that his misconduct would have on his wife, his children and his co-workers. The grievor also stated that he would seek professional counselling and that this type of misconduct would not happen again.

[36]    Mr. Cameron testified that the grievor asked him on several occasions if he would be making recommendations as to any disciplinary action that should be taken. Mr. Cameron advised him that senior management and staff relations would receive his investigation report and they would decide on any disciplinary action. The grievor reviewed the handwritten notes taken by Mr. Cameron during the interview (Exhibit E-1, tab 11) and initialled each page.

[37]    Mr. Cameron stated that he was concerned about the grievor's emotional state, so a request was made to have Mr. McCaie attend. Mr. McCaie provided the grievor with information concerning the types of assistance provided by the Employee Assistance Program (EAP) and with an EAP contact list.

[38]    In conclusion, Mr. Cameron stated that the final investigation report, which was absolutely confidential, was sent to Ms. Emmett on November 24, 2003.

[39]    In cross-examination, the witness agreed that the grievor's brother had only been present for half of the interview, but stated that it was the brother's choice. He noted that before the grievor's brother left the interview room, his last words to the grievor were: "Just tell the truth."

[40]    Mr. Cameron agreed that he told the grievor that when a person in his situation tells the truth, the decision-makers of whether or not disciplinary action is warranted take the admission of guilt into consideration. He stressed, however, that he informed the grievor that any decision regarding disciplinary action was not his to make.

[41]    In conclusion, the witness stated that the grievor shook his hand after the interview and stated that he was glad to have gotten this off his chest.

[42]    In reply, Mr. Cameron stated that he was comfortable as an investigator and as a person and that Exhibit E-3 was a true and fair account of his interview with the grievor held on October 31, 2003.

[43]    Ms. Emmett testified that on November 24, 2003, she received the investigation report from Mr. Cameron. She then met with the CCRA's human resources staff, as well as Ms. Mayo and Mr. Tepelenas, to discuss its contents. After review, the report was sent to the Privacy Commission for vetting.

[44]    Mr. Tepelenas testified that he met with the grievor during the afternoon of December 5, 2003, to provide him with a copy of the vetted investigation report (Exhibit E-1, tab 13). He advised the grievor that he, as well as Ms. Mayo and Mr. McCaie, wished to meet with him on December 9, 2003. The grievor, however, indicated that he was unable to meet with them on December 9, 2003, or the next day. An agreement was subsequently reached to meet on December 8, 2003, with the grievor's brother attending as his observer. The grievor was informed that the purpose of the meeting was to discuss the report and that it was an opportunity for him to provide further information, if he so wished.

[45]    Ms. Mayo testified that the grievor attended the scheduled meeting alone on December 8, 2003, at 5001 Yonge Street. The investigation report was discussed and the grievor acknowledged the sexual assault. He agreed in principle with his and Ms. "X"'s remarks, as noted by Mr. Cameron. He did not, however, agree with the remark that he had "grabbed" Ms. "X"'s breasts; he preferred the word "touched".

[46]    Although the grievor expressed remorse and stated that he was under a lot of stress, he acknowledged that it did not excuse his actions. He stated that the stress was caused by a number of reasons, which included his cellulitis (a skin rash), for which he was being treated with antibiotics, as well as dealing with a sexual assault suffered by a close family member (whom I will not specifically identify out of respect for that individual's privacy concerns). The grievor again admitted that these were not excuses. He assured Ms. Mayo and the others present at the meeting that he would not do this again. He advised them that he intended to plead guilty to the charge of sexual assault so that Ms. "X" would not have to testify in court, and with the hope that he would receive a conditional discharge.

[47]    Ms. Mayo testified that the grievor noted that because he was on antibiotics (at times, intravenously), he was unable to participate in sports that had the ability to relieve the stress that he was under. He also indicated that he was prepared to seek psychological counselling and undergo physical tests in order to determine why he had committed this act. She also testified that the grievor stated that, although Ms. "X's" attire was revealing, it was not an excuse for his misconduct.

[48]    Ms. Mayo testified that she asked the grievor if the medication he was taking might have contributed to his lack of judgement, to which he replied: "I am not sure."

[49]    She also stated that at the meeting on December 8, 2003, her role, as well as Mr. Tepelenas' and Mr. McCaie's, was to obtain the grievor's account of the events surrounding the alleged sexual assault. It was also an opportunity for the grievor to provide any other pertinent information that would assist Ms. Emmett, who was the delegated authority, to decide what disciplinary action to take. Ms. Mayo testified that she verbally reiterated the grievor's account to Ms. Emmett.

[50]    It was Mr. Tepelenas' testimony that he advised Ms. Emmett that the grievor's misconduct warranted termination of employment. He stated that because of the nature of the CCRA's business and an auditor's duties (i.e. contact with taxpayers), trust is an essential component. Misconduct of this magnitude brings disrepute to the CCRA.

[51]    When asked if during the meeting of December 8, 2003, the grievor had provided or offered to provide medical evidence with regard to his cellulitis condition, the witness stated that he had not.

[52]    Ms. Emmett testified that her decision to terminate the grievor's employment was based on the administrative investigation report, information conveyed to her by her direct reports after their December 8, 2003, meeting with him and advice she received from staff relations. As well, she consulted the CCRA's Discipline Policy, and the section entitled "Mitigating Circumstances (Guidelines)" (Exhibit E-1, tab 1, table 3), to evaluate those factors and to determine to what extent they should be considered:

b) Mitigating Circumstances (Guidelines: B. Table 3)

Delegated managers must give consideration to circumstances that might lessen the effect of a possible disciplinary measure. These might include, but are not limited to, the employee's length of service, past record and the seriousness of the misconduct.

Mitigating circumstances may require management to adjust its response to seemingly similar misconduct by different employees. Managers must make it clear to all employees that disciplinary measures depend on the nature of the misconduct and the accompanying circumstances, including personal circumstances, that may have influenced the employee's behaviour.

Depending on an employee's behaviour and or related factors, in some cases the employee should be referred to an Employee Assistance Program representative and encouraged to seek professional advice or treatment.

[...]

Table 3 - Examples of Mitigating Factors

There are many factors which must be considered when determining the severity of the disciplinary measure. Some of these mitigating factors are:

• a good employment record;

• long service;

• the isolated nature of the incident in an otherwise blameless employment history;

• the existence of provocation;

• the fact that the offence was a spur of the moment aberration of behaviour resulting from a strong personal impulse;

• the lack of premeditation;

• the inconsistent application by the employer of written or posted rules of conduct, resulting in discriminatory disciplinary action;

• the failure of the employer to clearly communicate an instruction to an employee;

• the relative seriousness of the offence in relation to the organization's policies, mandate and obligations;

• the absence of rules pertaining to the offence when the act(s) occurred (employee ignorance of CCRA expectations does not excuse an employee from engaging in conduct that any reasonable person would understand to be inappropriate and is not a valid excuse for misconduct);

• the failure of the employer to provide adequate opportunity for the employee to explain or rebut the allegation;

• the failure of the employer to act after the misconduct occurred or failure to investigate and determine what action to take within a reasonable period of time (which could be seen as condoning the behaviour);

• the rehabilitative potential of the employee, as evidenced by how forthcoming the employee was with information about the misconduct; and by the acknowledgement of remorse for the misconduct; and

• behaviour outside the employee's control such as unacceptable behaviour due to a medical condition.

Note:

It is up to the employee to report any factors that might cause a disciplinary measure to be reduced or waived.

[53]    Ms. Emmett noted that it is her belief that the sexual assault on Ms. "X" while the grievor was conducting official government business was premeditated. As well, she noted that it was not until October 31, 2003, one week later, that the grievor admitted his misconduct. Although he had an unblemished record of some 27 years of service, he committed a serious act of misconduct. Even though he ultimately expressed remorse, his actions damaged the trust and integrity required of auditors while conducting their duties. Termination of employment was the appropriate action to take in the circumstances. The reputation of the CCRA was at stake.

[54]    Ms. Emmett stated that the CCRA does not have a crystal ball; it cannot look into the future to ascertain that the grievor will not commit such serious misconduct again. She stated that the CCRA cannot take that risk.

[55]    In conclusion, the witness confirmed that Ms. Mayo met with the grievor on December 12, 2003, and read him the letter of termination that she (Ms. Emmett) had prepared (Exhibit E-1, tab 14).

[56]    In cross-examination, Ms. Emmett stated that although the grievor was a teleworker, she could not risk having him perform field audits, where he might come into contact with female taxpayers, or working with female co-workers at the head office. It is her belief that this type of misconduct is so serious that alternate work arrangements are not an option.

[57]    As far as the possibility that the grievor's medication might have affected his conduct, the witness noted that the grievor did not bring this to Mr. Cameron's attention during his interview.

[58]    Ms. Emmett agreed that there was no evidence to suggest that the grievor tried to solicit sexual favours from Ms. "X" in exchange for certifying the audit.

[59]    The witness admitted that she was unaware that the grievor had taken stress leave on September 3, 4, 5 and 8, 2003. She noted that that information was not brought forward by the grievor during his interviews. She stated that as far as she knew, he was not on stress leave the day he sexually assaulted Ms. "X".

[60]    When asked by counsel why the grievor had not received severance pay, Ms. Emmett replied that it was not a requirement under the collective agreement. She also stated that a reference letter was not provided, following advice that she received from staff relations. Ms. Emmett was unaware as to whether the grievor was eligible for Employment Insurance.

[61]    In cross-examination, Ms. Mayo stated that following her meeting with the grievor on December 8, 2003, she relayed to Ms. Emmett what had been discussed (i.e. the stress that he was under; his expression of remorse; his willingness to seek counselling and undergo tests; and the medication that he was taking at the time). Ms. Mayo noted that he never mentioned any side effects caused by the medication.

[62]    When asked if the grievor could be assigned other duties to enable him to work from home and that would not require being in contact with females, Ms. Mayo acknowledged that it was a possibility.

[63]    In cross-examination, Mr. Tepelenas agreed that it was not unusual for auditors to take several days to conduct an audit. As well, it was quite possible that the grievor returned to the sun tanning salon to ensure that the serial numbers on the tanning beds matched those on the invoice that he had received from the accountant.

[64]    The witness agreed that it was possible that the grievor had a medical condition. However, Mr. Tepelenas stated that the grievor made no concrete statement to that effect; he provided no medical evidence. Mr. Tepelenas noted: "To assume he had a medical condition would only be mere speculation on our part. I had no opinion, as I was only recording his statement. He simply stated: 'I don't know why I did it.' This was the message that management was left with." When asked if the grievor should be reinstated, the witness stated: "I would be apprehensive, especially if there was a repeat of this misconduct, as it would seriously undermine the CCRA's credibility. It is the fact that he said 'I don't know why I did it' that gives me great discomfort."

[65]    Detective Constable Brent Stitt testified that during the past five years, he has investigated over 100 sexual assaults. It was on October 22, 2003, that he interviewed Ms. "X". She alleged that she had been sexually assaulted by an employee of the CCRA. Her interview was videotaped.

[66]    The next day, on October 23, 2003, at 10:30 a.m., the grievor reported to the precinct and was interviewed in the Crime Investigations Section. His interview was also videotaped. He was asked if he wanted to make a statement. He stated that he did not need a lawyer and went on to describe the location of the audit (the sun tanning salon) and said it was nothing short of a regular audit. According to Detective Constable Stitt, although the grievor gave an account of the audit, he did not mention the alleged sexual assault. He was later charged with sexual assault, placed under arrest and read his rights. He was photographed and fingerprinted and a court date was set. He was subsequently released on his own recognizance with a promise to appear. He was also ordered not to contact Ms. "X" or enter the premises of the sun tanning salon.

[67]    Detective Constable Stitt went on to state that the grievor showed little emotion. He did not deny or display outrage at the accusation, which would have been the normal reaction for someone charged with this type of offence. The witness stated that his experience led him to believe that this was due to the impact that the sexual assault charge would have on the grievor's family.

[68]    In cross-examination, the witness stated that although there are varying degrees of severity in a sexual assault, this type of assault falls under section 271 of the Criminal Code of Canada. When asked if he had any concerns as to whether the grievor might repeat this type of offence, Detective Constable Stitt replied that he did.

[69]    The grievor's spouse, Agnteszka Yarmolinsky, testified on his behalf. She stated that they have been married for approximately 18 years and have two sons: a 14-year-old and a 17-year-old. Mrs. Yarmolinsky noted that her sons adore their father and he, in turn, is a very devoted father. As well, he is a good husband whom she respects and holds in the highest regard.

[70]    The witness stated that before her husband's employment was terminated, they lived a pretty comfortable life financially. He was the majority income earner, while she worked part-time as a language teacher.

[71]    Mrs. Yarmolinsky detailed a number of issues that contributed to the stress in their lives prior to this incident. They bought a new house, their dream home, and, as a result, their mortgage went from $50,000 to $130,000. Their oldest son had become somewhat hostile and unruly. A close family member was sexually assaulted in April 2002, by someone who had befriended the family. The grievor blamed himself and had many nightmares as a result. The sexual assault affected them in many ways: they blamed themselves; they were not sleeping well; they attended weekly family counselling sessions and the close family member attended individual counselling sessions. They were too ashamed to inform other family members and/or friends of the incident. Due to the family's involvement in the criminal trial of the person accused of assaulting their family member, the planning for the youngest son's bar mitzvah, which would normally take up to one year, was completed within three months, which caused additional stress.

[72]    As well, Mrs. Yarmolinsky noted that in January 2002, her youngest son dislocated his hip while skiing, which required that he undergo several surgeries. Then in August 2003, while on holidays in Vancouver, her husband developed a skin rash (cellulitis). As a result, one of his legs became very swollen to the point that he was put on antibiotics (at times, intravenously) and had to sleep in the basement in order to keep his leg elevated.

[73]    Mrs. Yarmolinsky also stated that she accompanied the family member who suffered the sexual assault to Cuba for one week to get away from the stress associated with the assault. Her husband could not accompany them, which added to the stress that he was already under.

[74]    Mrs. Yarmolinsky said that it was on October 26, 2003, that her husband informed her of the allegation of sexual assault against him. Her reaction was one of shock and disbelief, as he had never done anything like this in their 18 years of marriage. She stated that at no time did she ever consider separating from her husband; together, they sought professional help from physicians and psychologists. She noted that since March 2004, he has been seeing a psychiatrist in an effort to understand why he did what he did.

[75]    When asked by counsel her views as to the possibility that her husband might re-offend, Mrs. Yarmolinsky responded that she feels strongly that he will not, as he has been rehabilitated. He is no longer taking medication, he does not have a life threatening illness and he is surrounded by a close and loving family that supports him. He is not a threat to society.

[76]    Mrs. Yarmolinsky stated that as a result of her husband's termination of employment, they have had to borrow money and readjust their lifestyle. They are in debt and are barely making ends meets. She also stated that dismissing her husband on December 12, 2003, shortly before Christmas, was a heartless act.

[77]    In cross-examination, the witness clarified that it was on October 26, 2003, that her husband informed her that he had been accused of touching a woman's breasts while conducting an audit. It was not until October 31, 2003, that he told her the truth, the whole truth.

[78]    When asked by counsel for the employer if she remembered mentioning, on several occasions, to Seta Cavdar, the grievor's Team Leader, that she was thinking of separating from her husband, Mrs. Yarmolinsky replied: "I don't remember. I have no recollection of that."

[79]    When asked about the possibility that the grievor might have engaged in this type of behaviour before but that no one had ever filed a complaint, she agreed that it was a possibility.

[80]    She concluded by stating that no one can be sure of anything in life, but the chances that her husband would re-offend are "extremely minimal".

[81]    In reply, Mrs. Yarmolinsky stated that her husband had never done anything like this before. He lost his judgement one day; this behaviour was totally out of character for him. He has been punished; he has lost his job and "his identity has been taken away". "He has been extremely punished."

[82]    Prior to the termination of his employment, Howard Yarmolinsky was a Senior Excise Tax Auditor (AU-02) at the Toronto North Tax Services Office of the CCRA. He is 55 years old and holds a Bachelor's degree from the University of Toronto.

[83]    The grievor's testimony can be summarized as follows.

[84]    He has held many positions within the CCRA during the past 27 years. He has conducted about 1,000 audits, of which approximately 500 have been field audits. He began teleworking from home in 1992, with one-third of his duties consisting of desk audits, one-third the waiving of credit returns and the remainder field audits. His timesheets were sent electronically to the head office on a daily basis and on a weekly basis he visited the head office to drop off files and pick up new ones. Twice a month, he attended meetings.

[85]    The grievor testified that the sun tanning salon was a new business, a new filing (first GST filing), that had never been audited. Typically, an audit would take him 15 hours, or two days, as he worked 7.5 hours per day.

[86]    On October 20, 2003, at approximately 4:00 p.m., he entered the sun tanning salon. He picked up a business card and asked the receptionist (Ms. "X") her name. She gave him her first name only and he wrote it on the back of the business card (Exhibit G-7). He mentioned that he had never been to a sun tanning salon before. Ms. "X" gave him a tour of the sun tanning salon and showed him the tanning beds. (The grievor stated that the exact number escaped him; some were vertical, some horizontal). He admitted that he asked several "stupid" questions, such as could a husband and wife use one bed at the same time and if so, would they pay only one price.

[87]    The grievor noted that earlier in the day, on October 20, 2003, he had had a confrontational telephone call with the owner of the sun tanning salon concerning some irregularities that the grievor had noted. The owner had yelled at him over the telephone and this had upset him.

[88]    The grievor testified that the sun tanning salon was located in a small plaza, which seemed to have little business, and he was suspicious. He stated that his job is to be a bloodhound, like a detective. He asked Ms. "X" if there were any prostitution services offered on site. He again admitted that it was a "stupid" question and stated that he had never asked those types of questions before. When he looked inside the back rooms, he saw sun tanning products (lotions, etc.) and knew that it was a legitimate business. He left at approximately 5:00 p.m. After he left, he realized that he had asked inappropriate questions and made some unprofessional comments.

[89]    The next day, on October 21, 2003, at approximately noon, he met with the business's accountant. As requested, he received an invoice (Exhibit G-6) listing the name of the manufacturer of the tanning beds, as well as their corresponding serial numbers. He stated that the reason he returned to the sun tanning salon was to check the serial numbers on the beds; as well, he was concerned about $100,000 listed in the company's books and the possibility that there could be a scam involving the tanning beds - that beds were given to other businesses or put in personal residences and replaced with other beds that were perhaps stolen, etc.

[90]    When he returned to the sun tanning salon later that day, he informed Ms. "X" that he had to recheck the serial numbers of the beds. They chatted for a few minutes and at one point, Ms. "X" mentioned the difficulty she was having renewing her driver's licence. They went from room to room to validate the serial numbers. It was in the last room, the one located furthest from the reception area (Room #6), that the assault took place. They were standing close together and he commented to Ms. "X": "You have beautiful breasts." He asked her if he could touch them and she said no. He then asked her if he could kiss her and again she said no. Despite twice being told no, he touched her breasts and attempted to kiss her.

[91]    The grievor stated that it was all over very quickly; "the touch only lasted a second". He stated that it was an open hand touch; he did not grab her breasts, as alleged by management. Ms. "X" backed away and on her way out of the room, she bumped into him. He did not chase after her. He was stunned by what he had just done. He did not look at her as he left the sun tanning salon. On his way out, she asked if there was anything else that she could do and he replied: "Nothing that you're willing to do."

[92]    The grievor stated that he was tired from the effects of the medication that he was taking, as he had not been getting a proper amount of sleep, but acknowledged that it was not an excuse for his inappropriate conduct.

[93]    The grievor noted that Ms. "X" seemed to be a friendly person. He stated that he never thinks of himself as someone in authority. To him, she was his equal. He testified that he could not explain the state of his mind at the time; he does not recognize "who that person was". He also stated that Ms. "X" did the right thing by reporting the assault and stated: "Hopefully, I wouldn't do it again."

[94]    When asked by his counsel whether in the end he gave the sun tanning salon a bad audit, the grievor responded: "No, I did not take it out on anybody."

[95]    On October 23, 2003, at 10:00 a.m., Mr. Tepelenas called him and asked him to report to Detective Constable Stitt of the North York Regional Police. He did not confide to Mr. Tepelenas what had happened.

[96]    He testified that while being questioned at the police station, he stated that he did not know why he was there and denied that he sexually assaulted Ms. "X". He testified that the timing was not right; it was his brother's 50th birthday, he did not have a lawyer present, although he was advised that he could call one, and he had never been to a police station before. Later that day, he received a telephone call from Mr. Tepelenas advising him that until further notice, he could continue to work from home, but he was not to conduct any more field audits.

[97]    On October 27, 2003, he called Steve Eadie, a PIPSC union representative from Ottawa. Mr. Eadie could not be present at the meeting scheduled for that day but participated by teleconference. Ms. Mayo and Messrs. Tepelenas and McCaie were present. The grievor testified that no one advised him to be truthful. He was given a letter dated October 27, 2003 (Exhibit G-1, tab G), signed by Ms. Emmet advising him that an internal investigation would be conducted in the near future and that he was immediately suspended without pay until further notice. He turned in his identification card and made arrangements for Mr. Tepelenas to retrieve other items that belonged to the CCRA.

[98]    On October 30, 2003, he received a call from Mr. Cameron asking to meet with him the next day. The grievor testified that he was happy that things were moving fast.

[99]    During his interview with Mr. Cameron on October 31, 2003, he initially did not admit the sexual assault, as he had not yet told his wife, he did not have a lawyer and he was in a poor state of mind. He eventually admitted the truth to Mr. Cameron and later that evening, he confessed to his wife what, in fact, had actually happened. He stated that his wife was mad, upset, and in "total disbelief".

[100]    The grievor stated that he believed that he would be punished, but not be terminated from his employment with the CCRA.

[101]    After meeting with Ms. Mayo on December 8, 2003, the grievor apologized to his senior managers and assured them that it would not happen again. He advised them that he was going to seek professional counselling and undergo medical tests. He also stated that the stress he was under might have contributed to his misconduct (i.e. problems with his eldest son; the antibiotics that he was taking for his cellulitis; the sexual assault suffered by a close family member). He mentioned that he intended to plead guilty to the sexual assault charge and was hoping to receive a conditional discharge.

[102]    The grievor testified that he believes that senior management had already made up its mind to terminate his employment before meeting with him on December 8, 2003. He also believes that other meaningful work was an option that the employer chose to ignore.

[103]    With regard to his application for Employment Benefits, the grievor noted that it was not a struggle to obtain them. As far as cashing out his unused vacation leave, he stated that it relieved his financial hardship, but only temporarily. As a result of losing his job, he had to use his credit card to purchase food, he put his home renovations on hold and he discontinued driving the family car.

[104]    The grievor stated that he received no severance pay for his 27 years of service. As well, with no reference letter, he has had a difficult time trying to obtain employment. He is currently working as a telemarketer at a rate of $9.00 per hour.

[105]    With respect to the criminal proceedings, the grievor stated that he decided to plead guilty so that Ms. "X" and the employer would not receive any negative publicity. He stated: "I made it easy. I could have really rubbed it in."

[106]    The grievor testified that due to the conditions imposed by the court, it was not until March 8, 2004, that he was able to write a letter of apology to Ms. "X" (Exhibit G-1, tab L). He stated that he had met all of the conditions imposed by Justice R. Bogusky on April 6, 2004 (Exhibit G-1, tab N).

[107]    In re-examination, in reply to a question by his counsel as to the possibility that this type of incident might happen again, the grievor stated that he has been seeing a psychiatrist since March 2004, and his psychiatrist has concluded that the chances of his ever committing such an act again are minimal (Exhibit G-5).

[108]    In closing, the grievor stated that people make mistakes. He has paid the price; he has suffered humiliation. He is different today from the person he was in 2003. He is able to do a good job for the CCRA and is asking to be trusted. He stated that if he could put up a bond of one million dollars to show that he can be trusted, he would do so.

[109]    In cross-examination, the grievor agreed that he was familiar with the "Code of Ethics and Conduct" and understood his responsibilities as an auditor. He stated, however, that he was not familiar with the Discipline Policy. He also agreed that he had a duty to contact the employer if he was involved in an illegal act.

[110]    He agreed that the side effects from the antibiotics were diarrhoea and thrombosis, as stated in a letter dated November 14, 2004, from Dr. R. Atwall (Exhibit G-4). He stated, however, that his cellulitis was so painful that he thought he was going to die. When asked if it was not a mental condition, the grievor responded: "I am not a doctor. It is physical."

[111]    The grievor also admitted that on his second visit to the sun tanning salon, he requested that Ms. "X" assist him in matching the serial numbers on the tanning beds with those on the invoice.

[112]    He agreed that although he regretted his actions, he did not return to apologize to Ms. "X". He noted, however, that it was because he was scared and ashamed. "It was like a crime scene, so I left for the security of my home." When counsel for the employer suggested that the letter of apology he wrote to Ms. "X" on March 8, 2004, was a ruse in an attempt to lessen his sentence at trial, the grievor stated that he had been advised by his lawyer to write the letter, although it was always his intention to do so. However, he had to respect the conditions set by the court.

[113]    The grievor noted that he has applied for 82 jobs during the past year, but has received no replies (Exhibit G-8). He stated that since he was working as an auditor at the CCRA using a logbook system, for all intents and purposes he considers himself illiterate in terms of the advances that have been made in the private sector in terms of technology today. He has minimal computer knowledge, which limits his opportunities to seek work as an auditor in the private sector.

[114]    When asked if this was the only incident of this kind or the only time that someone had filed a complaint, the grievor responded that it was the only such incident.

[115]    The grievor referred to an assessment (Exhibit G-1, tab J) prepared on January 9, 2004, by R. Langevin, Ph.D., a professor of psychiatry who administered a battery of tests designed to examine the grievor's personal history, sexual history and preferences, mental illness and personality, tendency towards violence, etc. He stated that the result of those tests, which at times were intrusive, was that the assault was out of character and the risk of his sexually assaulting someone in the future was in the lowest category of risk.

Arguments

For the Employer

[116]    Counsel for the employer argued that that I did not have jurisdiction to hear the suspension grievance, as it was an administrative action rather than disciplinary in nature.

[117]    Counsel proceeded to argue that terminating the grievor's employment was appropriate, as it serves to protect the interests of the CCRA, its employees and its clients. Sexual assault on a Canadian citizen by an auditor while conducting government business is unprecedented at the CCRA.

[118]    The sexual assault appears to have been premeditated. Although Dr. Langevin's report states that the grievor is unlikely to re-offend, this, in itself, is not reassuring for the employer. Even though the grievor has since expressed remorse, albeit self-serving, he did not do so at the time of the incident or shortly thereafter. He did not admit his misconduct to the employer until October 31, 2003. The bond of trust between the employer and the employee has been broken.

[119]    The medical reports presented at this hearing were never shared with the police and/or Mr. Cameron. The possible side effects of the antibiotics that the grievor was taking at the time were not an issue that he brought forward during his interviews with the police and/or Mr. Cameron. As well, there is no evidence, no basis, to conclude that the sexual assault was motivated by the stress the grievor claims that he was under. There has been no established evidence to support a medical defence.

[120]    The grievor has a criminal record, which has consequences for him to renew his security clearance. He has lost the employer's trust; it has no confidence in him. As for combining job duties that would not include field audits, counsel argued that this would be unfair to other employees at the AU-02 level who receive the same rate of pay.

[121]    In support of his arguments, counsel cited the following case law: Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (FCA) (QL); Copp v. Canada Customs and Revenue Agency, 2003 PSSRB 8; Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) (QL); Gale v. Treasury Board (Solicitor General Canada - Correctional Service) , 2001 PSSRB 85; Gonsalves v. Catholic Church Extension Society of Canada, [1998] O.J. No. 3404 (Ont. C.A.) (QL); Kahlon v. Treasury Board (Solicitor General), PSSRB File No.: 166-2-20871 (1991) (QL); Re Phillips Cables Ltd. and United Steel Workers, Local 7276 (1974), 5 L.A.C. (2d) 274 (QL); Scott v. Treasury Board (Revenue Canada - Customs and Excise) , PSSRB File Nos. 166-2-26268 and 166-2-26269 (1998) (QL); and Taylor v. Treasury Board (Solicitor General - Correctional Service Canada) , PSSRB File No. 166-2-26318 (1996) (QL).

For the Grievor

[122]    The grievor has 27 years of service with this employer and a clean record. He has performed approximately 1,000 audits without incident. Counsel stated that rather than throwing the baby out with the bath water, the grievor could be accommodated and assigned work other than conducting field audits.

[123]    The termination of employment is not progressive in nature and does not focus on the potential for rehabilitation. The employer has to consider the mitigating factors that led to the sexual assault. The onus is on the employer. Ms. Emmett never met the grievor and she testified that she was not aware that he took stress leave before the incident. She stated that she had no idea of the stress he was under when she made her decision to terminate his employment, although Ms. Mayo and Mr. Tepelenas brought those factors to her attention.

[124]    As an auditor, the grievor was trained to have a healthy degree of scepticism and it was good practice to revisit the sun tanning salon to verify that the serial numbers on the tanning beds matched those on the invoice. The grievor was not sure that Ms. "X" was going to be there alone on his second visit.

[125]    There is no evidence that the grievor cannot be rehabilitated. In fact, the grievor has provided medical evidence that concludes that he can be. He has undergone tests, has sought counselling and, with the support of his family, he is capable of resuming his duties as an auditor at the CCRA.

[126]    Counsel argued that the grievor's behaviour on the day of the sexual assault was the result of the stress that he was under and therefore constitutes a medical condition.

[127]    The grievor has paid the price for his misconduct, as he has been discharged from his employment with the CCRA and has lost significant income. He has also suffered through a criminal proceeding. His family and friends have suffered, as well.

[128]    Counsel for the grievor cited the following cases: Hewes v. Etobicoke (City) , [1993] O.J. No. 553 (Ont. C.A.) (QL); Ditchburn v. Landis & Gyr Powers, Ltd. , [1995] O.J. No. 2882 (Ont. C.J.) (QL); Dell v. Treasury Board (Solicitor General Canada - Correctional Service) , PSSRB File Nos. 166-2-25124 to 26 and 166-2-25189 to 91 (1994) (QL); Veer v. Dover Corp. (Canada) Ltd. , [1997] O.J. No. 3821 (Ont. C.J.) (QL); De Lisa v. Treasury Board (Solicitor General Canada - Correctional Service) , 2002 PSSRB 57; Brick v. Bell Communications Systems Inc. , [1989] O.J. No. 2830 (S.C.O.) (QL); Séguin v. House of Commons, 2001 PSSRB 37; Kahlon (supra); Taylor (supra); Reininger v. Unique Personnel Canada Inc. , [2002] O.J. No. 2826 (S.C.O.) (QL); Bardal v. The Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.) (QL); McKay v. Eaton Yale Ltd. , [1996] O.J. No. 3982 (Ont. C.J.) (QL); Bohemier v. Storwal International Inc. (1982), 40 O.R. (2d) 264 (Ont. C.J.) (QL); and Orlando v. Essroc Canada Inc. , [1995] O.J. No. 4056 (Ont. C.J.) (QL).

Reasons for Decision

[129]    At the beginning of the hearing, counsel for the employer raised an objection to my jurisdiction to hear the suspension grievance, stating that it was an administrative action rather than disciplinary in nature. In order to establish that I do not have jurisdiction, the employer has to prove that the grievor was not subject to "disciplinary action resulting in a financial penalty", as contemplated by paragraph 92(1)(b)(i) of the Public Service Staff Relations Act (PSSRA).

[130]    Based on the evidence before me, I find that the grievor did suffer a financial penalty when he was suspended without pay on October 27, 2003. The employer knew, at the relevant time, that an alleged sexual assault had taken place and that the police were involved and charges against the grievor had been laid. Ms. Emmett requested an Internal Affairs investigation that might or might not have resulted in disciplinary action being taken depending if there was a violation of the CCRA's "Code of Ethics and Conduct."

[131]    On October 23, 2003, the grievor was instructed by Mr. Tepelenas to continue working from home but not to conduct any more field audits until further notice. Ms. Emmett, however, testified that she was later directed to suspend the grievor without pay pending the results of the Internal Affairs investigation. I also note that the letter dated October 27, 2003 (Exhibit G-1, tab G) from Ms. Emmett to the grievor states: "Please be advised that further disciplinary action may be taken up to and including termination of employment...." (Emphasis added). I therefore find that the context of the grievor's suspension was disciplinary in nature. From that point on, the grievor was without income, which resulted in a financial penalty. Therefore, I find that this grievance is properly before me.

[132]    As stated earlier, the grievor was charged with sexual assault following an incident on October 21, 2003, while he was conducting a GST audit. The employer was advised by the police of his misconduct on October 22, 2003. Although the grievor was interviewed by the police and spoke with his manager, Mr. Tepelenas, on October 23, 2003, he did not admit to the assault of Ms. "X". It was only on October 31, 2003, after two and one-half hours of questioning during an interview with Mr. Cameron that he finally admitted that he had, in fact, committed the misconduct of which he was being accused.

[133]    After considering the statements made by the grievor on December 8, 2003, Ms. Emmett, as the employer's delegated authority, terminated his employment, effective December 12, 2003.

[134]    The grievor pled guilty to the sexual assault charge in April 2004 and received a conditional discharge.

[135]    The employer justified its decision to terminate his employment by stating, in the letter of termination (Exhibit E-1, tab 14), that his actions brought the reputation of the CCRA, its employees and the Canadian public into disrepute, and that his behaviour contravened the "Code of Ethics and Conduct" and irreparably damaged the employer-employee relationship.

[136]    The grievor has to be held accountable for his actions. He testified that he was aware of the CCRA's "Code of Ethics and Conduct". Yet, it did not deter him, even though through his actions he faced the possibility of dismissal.

[137]    In my opinion, the sexual assault alone was reason enough for the employer to terminate the grievor's employment. But when coupled with the grievor's dishonesty, by lying to Detective Constable Stitt, and not immediately informing his employer, this justifies it even more.

[138]    The grievor admitted that he made several inappropriate comments and asked Ms. "X" "stupid" questions. In my opinion, these questions and/or comments were an attempt by him to "test the waters". This conduct was not healthy scepticism on the part of an experienced auditor conducting official government business. This, in itself, was suggestive language. After years of conducting audits, the grievor knew or ought to have known the impropriety of his questions and/or comments. As the very least, he could have apologized to Ms. "X" on the same day, but he did not.

[139]    I find it difficult to believe the grievor's testimony that the confrontational telephone call that he had with the owner of the sun tanning salon upset him to the point that he could not call the owner back prior to his second visit. In his position, with his authority, the grievor should have been able to convince even the most irate taxpayer to calm down and cooperate with an audit. It was his profession. He could have used his legislative powers or informed his Team Leader of his concerns; however, he did not. The grievor manipulated the events in an attempt to be alone with Ms. "X" at the sun tanning salon. It was premeditated.

[140]    The grievor enlisted Ms. "X"'s help to match the serial numbers on the tanning beds against those listed on the invoice that he had obtained from the business's accountant. He stated that it was to positively identify the beds, to ensure that they were one and the same. If I were to believe his testimony, that he returned to the sun tanning salon to verify the serial numbers, it is nullified by the fact that while in the midst of conducting this fact-finding charade, he sexually assaulted Ms. "X". It does not jive. In fact, it is the coincidence of these events that is striking and hard to believe.

[141]    The grievor admitted that he remarked to Ms. "X" that she had beautiful breasts and asked her if he could touch them. Although she said no, he then asked her if he could kiss her and she again said no. Despite twice being told no, he nevertheless touched her breasts and attempted to kiss her. No means no! The grievor chose to ignore this simple word.

[142]    The grievor stated that he considered Ms. "X" to be his equal. I do not subscribe to that premise. Ms. "X" is a receptionist, while the grievor was a GST auditor with broad legislative powers. His request that she help him find the serial numbers on the tanning beds, to which she complied, was, in my view, a calculated move on his part. I find his actions leading up to and including the sexual assault manipulative and premeditated. The impact of the sexual assault on Ms. "X" was so traumatic that she had to obtain professional help and continued to receive psychological counselling on a regular basis. If anyone should understand the trauma caused by such an assault, it should be the grievor. Both he and his wife testified to the pain and suffering that they endured as a result of the sexual assault suffered by their close family member.

[143]    The employer has lost all trust in the grievor. The employer justifiably was left to wonder whether this was the first time that he had assaulted a person while conducting CCRA business or whether it was the first time that a person actually filed a complaint. One can also wonder what type of audit would have been filed had Ms. "X" complied with his sexual advances. Conversely, what type of audit would have been filed if she refused his sexual advances but did not file a complaint? What are the chances that the grievor will repeat this misconduct if he should be reinstated? These are all valid concerns. Ms. Emmett stated that the CCRA does not have a crystal ball to look into the future to ascertain that he will not commit such an act again.

[144]    It is impossible to know the answers to these questions. The grievor himself stated: "Hopefully, I wouldn't do it again." I find that there is enough legitimate concern to support the employer's contention that the employer-employee bond of trust has been irreparably broken.

[145]    Counsel for the grievor argued that the grievor's misconduct was the result of the stress that he was under and that his behaviour was related to the medication that he was taking for his cellulitis. In order for me to believe this (and I do not), I would have to conclude that the grievor's behaviour was the result of a bona fide medical condition. In other words, his misconduct resulted from a medical condition and it was not purely culpable behaviour. It was incumbent upon the grievor to provide clear and cogent evidence that the sexual assault resulted from a pre-existing medical condition, that a medical prognosis of that condition has been identified and that it has been alleviated by treatment that will ensure such misconduct will not recur.

[146]    As cited in Re Canada Safeway Ltd. and Retail, Wholesale and Department Store Union (1999), 82 L.A.C. (4th) 1, "extrapolating from past jurisprudence the elements that must be established before an arbitrator may consider reinstatement in a case where there has been a serious wrongdoing...attributed to illness, would appear to include the following: (1) it must be established that there was an illness, or condition, or situation being experienced by the grievor...; (2) once an illness or condition has been established, then a linkage or nexus must be drawn between the illness or condition and the aberrant conduct...; (3) if a linkage between aberrant conduct and the illness or condition is established, an (arbitrator) must still be persuaded that there was a sufficient displacement of responsibility from the grievor to render the grievor's conduct less culpable...; and (4) ...the (arbitrator) must be satisfied that the grievor has been rehabilitated...there must be a sufficient degree of confidence that the employee can return to the workplace as a fruitful employee and the underlying problems that led to the improper behaviour in the first place have been resolved so the risk of that behaviour, or similar behaviour, occurring in the future is minimized."

[147]    There was no evidence put before me to establish that, at the time of the sexual assault, the grievor suffered from an illness or condition that affected his behaviour. Exhibits G-2, G-4 and G-5 are all post-dismissal evidence and show no link between the grievor's medical condition (cellulitis) and his behaviour. Although he may have been suffering from stress, that, in itself, was not established as the nexus to his behaviour. I see no link between the grievor's psychological condition and his sexual assault on Ms. "X". The subsequent testing and psychotherapy that he underwent in no way establish that the sexual assault on Ms. "X" resulted from a medical condition. Neither do they completely satisfy me that the prognosis is favourable. I would note, however, that his seeking professional counselling establishes that he is committed to helping himself and progressing in the right direction.

[148]    I am cognizant of Mrs. Yarmolinsky's testimony. I commend her for supporting her husband. However, weighed against his serious misconduct, her testimony does not convince me that he should be reinstated.

[149]    With respect to the fact that Mrs. Yarmolinsky sat through the testimony of a number of the employer's witnesses, as stated at the beginning of this decision, I would note that her testimony served more as a character reference.

[150]    The grievor's actions were offensive and reprehensible. Society does not tolerate sexual assault of any kind and in my opinion it is sufficient ground for termination of employment in today's climate of equality between the sexes and human rights. The grievor has breached the CCRA's "Trust and Integrity Policy" and its "Code of Ethics and Conduct".

[151]    Canadian public service employees are expected to have a set of values and ethics that portray honesty, respect and integrity in the performance of their duties. The grievor has failed miserably on all counts.

[152]    I would note that it is a very sad and difficult task to have to inform an employee with an unblemished long service record that he has to be dismissed, especially when the re-employment potential is questionable. However, in this case, the grievor's actions justified such a decision.

[153]    With respect to the suspension, I find that the employer had sufficient cause to suspend the grievor. They had been contacted by the police and advised that the grievor had allegedly sexually assaulted a member of the public who was an employee of a place of business where he was conducting an audit. Given the grievor's duties, his position of trust within the organization, the seriousness of the alleged misconduct and the fact that the grievor was facing criminal charges, the employer was within its rights to suspend the grievor pending the results of the investigation.

[154]    For all the reasons outlined above, I see no reason to reinstate the grievor in the Canadian public service. This grievance is, therefore, denied.

D.R. Quigley,
Board Member

OTTAWA, January 17, 2005.