Compelled to ground his decision based on his assessment of the credibility of the testimony of the two principals in a classic “he said, she said” dispute, the Arbitrator preferred “her” testimony and “he” was fired.
The “he” in this case was T.D., a housing counsellor employed for 17 years by a municipally funded, not-for-profit social services agency that provides temporary shelter and settlement assistance to female refugee claimants.
The clients of the agency are a vulnerable group, many from the horn of Africa and many who are fleeing violence and abuse.
As a housing counsellor, it was T.D.’s job to arrange housing for clients. The job conferred a significant level of trust upon T.D. in view of the level of influence his job gave him over a highly vulnerable client base.
While there was some evidence of conflict between T.D. and management at the agency — T.D. filed a human rights complaint against the employer — there was no record of discipline.
In April 2006, the agency was informed by its shelter manager that one of the clients was alleging that T.D. had persisted in trying to establish an inappropriate relationship with her. The agency engaged a lawyer to investigate the charges and T.D. was later fired for misconduct. The union grieved the termination.
Sexual propositions
Among her allegations, the complainant charged that T.D. had first tried to place her in housing that he owned. There were also after hours visits, she said, where he attempted to kiss her. On many occasions she said T.D. made after-hours phone calls where he attempted to arrange meetings with her. In addition, there was an incident that took place in his car where she alleged that T.D. had made explicit sexual propositions, attempted to kiss her and then, when rebuffed, grabbed her hand and placed it in his lap.
T.D. vehemently denied charges, countering with allegations that the complainant was a needy client, a drunk and a woman of questionable virtue whose testimony should not be accepted over his own.
The Arbitrator said that the evidence established that there was more than the usual professional relationship between T.D. and the complainant. In the end, though, the Arbitrator was left to make his findings on the evidence of the two “protagonists.”
While the complainant’s delay in making the claims was cause of some concern for the Arbitrator, he nevertheless found her consistency persuasive. Her testimony, which was unshakeable, was consistent with the statements she had made previously. Moreover the Arbitrator noted the way the complainant conveyed her testimony — with a lack of enthusiasm and gravity that suggested she felt compelled to come forward to protect others despite a personal reluctance to come out against someone who had helped her.
“Completely rebarbative”
In contrast, T.D.’s testimony was “completely rebarbative” said the Arbitrator, embodying the principle that the best defense is a good offense. To that end, T.D. attacked the character of the complainant as well as the integrity and professionalism of the agency’s executive.
Nevertheless there were inconsistencies, evasions and contradictions in T.D.’s testimony such that the Arbitrator concluded, “In short, I did not find the grievor to be a credible witness.”
Based on the evidence he had, the Arbitrator said he was bound to uphold the termination; however, he held out the possibility that there was a companion narrative to the story:
“Before leaving this matter it seems necessary to observe that it is at least conceivable that there was more to the relationship between the complainant and the grievor than was conveyed in either of their evidence. Indeed, it is possible that there was a story to be told that might have painted the grievor’s actions in a somewhat more sympathetic light — at least from a human perspective. However, no such story was presented to me and I must determine the matter based on the evidence before me.”
