More from "Judge blasts county for firing worker"

Online bonus from article in the Feb. 1, 2006, issue of Canadian Employment Law Today

The following article expands on “Judge blasts county for firing worker,” an article that appeared in the Feb. 1, 2005, issue of Canadian Employment Law Today. It’s essentially a collection of odds and ends from the case that did not fit in the print issue.

The case involved William Downham, a county worker who was fired after trying to help Barry Holmes, a convicted pedophile, get housing. The court blasted the county’s handling of the case, awarding the worker $270,000 in damages — including $100,000 in punitive damages. The court also came up with a unique way to calculate Wallace damages. To view the original article, click on the related articles link at the bottom of this article.

The termination letter

The full text of the termination letter was not in the court transcripts. But here’s part of the termination letter given to Downham:

The County has now completed its investigation with respect to concerns arising out of the use of your position as Manager, Non-Profit Housing, in an effort to secure non-profit housing for a friend.

As a public servant you have a responsibility to conduct yourself in accordance with basic principles of integrity, honest, impartiality and common sense. The County is satisfied that you used your position as Manager, Non-Profit Housing, in an effort to secure preferred treatment and accommodation for Barry Holmes.

Your actions amount to a breach of trust such that the County no longer has
confidence in your ability to carry out your duties and responsibilities in an impartial fashion.

Wallace damages: Aggravating factors

The court outlined a number of aggravating factors in its decision to award Wallace damages:

•There was no effort to contact Downham at the outset to ascertain his position and to minimize the damage.

•The investigation was biased, shoddy and substantially undocumented (despite the direction to create a paper trail). The information allegedly obtained from the property manager and the parole officer was the underpinning of the report but was not recorded. The absence of such a record resulted in false and distorted information being included in the report and the inability of Downham to respond to it.

•Downham was left for a long period in ignorance of what was happening which would foreseeably increase his anxiety.

•Downham was treated unfairly by not being informed of the details of the allegations against him so he could give his version.

•The report of Williams was recklessly prepared and contained numerous statements of fact and conclusions which were unfounded and which would have been discovered to be false if the property manager had been carefully interviewed.

•There was no consideration given to assisting Downham as an employee. The only focus was on minimizing political fall-out and in justifying his dismissal.

•The letter exaggerated the grounds for dismissal set out in the report.

•The letter contains extremely serious findings which are essentially groundless.

•The letter was intended to cause Downham personal distress and to destroy his professional career. It accomplished its purpose. He was not able to find any full-time job until October 2003 and was never able to find comparable employment and finally left the social service field.

•When the appeal letter of Downham disclosed information at odds with the content of Williams' report, none of the senior management staff involved in the appeal made any further investigation. Williams knew that the contrary information in the report was not well-founded.

•The report was circulated to politicians whose knowledge would inevitably lead to problems in a small community.

•Downham has had to live with the consequences of the county's unfounded allegations from March 2002 until December 2005. This has affected all areas of his life including his social life, his volunteer activites, his employment and his having to deal with and feel responsible for the effects on his wife.

•At trial the county maintained its position and contended that the errors they acknowledged in Williams' report were inconsequential.

•At trial the county maintained its position on the basis of facts and conclusions which they knew or should have known before trial would be contradicted by the property manager who was the primary source of the information. The property manager was the county's witness. The county could not reasonably proceed to trial without interviewing her before trial.

Court critical of parole officer

The Ontario Superior Court of Justice was critical of the role of Ms. Stebbins, the parole officer, in this case. When the property manager at Harmony Home told the parole officer about Holmes’ application for housing, she was angry that he had not consulted her first.

She telephoned the property manager and Sandra Storring, the county’s social housing co-ordinator, and told them in strong terms that she found two residences that Holmes had proposed as unacceptable.

“She was also very critical of Mr. Holmes and Mr. Downham,” the court said. “She expressed her views using terms like ‘lack of judgment,’ ‘inappropriate behaviour,’ ‘abuse of position.’ She was so frank that Ms. Storring testified spontaneously that she was surprised that an employee of government would be so outspoken.

Stebbins said her prime concern throughout was the protection of potential victims of Holmes. But the court didn’t accept that.

“Her actions and her demeanour at the trial satisfy me that she was motivated by anger and animosity toward both Mr. Holmes and Mr. Downham and was trying to convince others that they had acted improperly. She succeeded,” the court said. “This was unfortunate because most of what she conveyed was factually wrong.”

The court said Stebbins formed a number of false impressions which she then passed on in exaggerated form to Storring and Rick Williams, the county’s director of social services.

The court said she was hostile to Downham and Holmes then and at trial and gave her testimony in a biased manner. Therefore, the court said it couldn’t rely on her testimony or her notes.

It said her misrepresentation of events and her hostility towards Holmes and Downham were two of the principal reasons the county’s attitude and investigation into Downham were so inappropriate.

The court pointed out the following example as something that highlighted her bias and dishonesty.

When she was questioned at trial about the restrictions placed on Holmes as part of his probation, she said repeatedly that he was under “house arrest” and contended that the restriction required him to obtain her prior approval of any outing outside the Downham house even if he was to be accompanied by Downham.

“Even though she read the restriction several times to herself in the witness box and was asked several times about this by (Downham’s) counsel, she persisted in that position,” the court said. “Only after I asked her several times to read the restriction and to explain it, did she finally concede that it did not say that.”

Stebbins then said she told Holmes that this was an additional rule she had imposed on top of the parole board’s restrictions.

“Then she retreated further when it became clear that rule could not possibly have been in place and claimed that there was a qualification to the unwritten rule in that Mr. Holmes and Mr. Downham did not always have to ask but rather had to use their judgment as to when to ask in advance for permission to go on an outing,” the court said. “That concession means there was no rule at all.”

The court said the parole officer allowed her dislike of Holmes and Downham and her anger about the housing application to affect her judgment.

The director of social services

The court also had very strong words for Williams, the county’s director of social services.

“He was perhaps the most unresponsive and adversarial lay witness I have seen during my 13 years on the court,” the court said. “In cross-examination, he repeatedly refused to answer any question directly if he perceived that the answer might assist (Downham.)”

The court said the two had a poor history. About six months before being fired, Downham told Williams he was upset with him because he had disagreed with some of Williams’ personnel decisions. Williams told Downham he wanted him to be a “yes” man and that he was on thin ice. At the staff Christmas party in December, before the dismissal, he had joked in a speech about Downham being a knucklehead.

The court said his background of poor relations with Downham, his total lack of regard for the interests of Downham as his staff member, his shoddy and unfair investigation, his biased and unfounded statements in his report, the extravagant terms used in his letter of termination, his communications with the representatives of the United Way and Quinte and his lame explanations for them and his demeanour and testimony in the witness stand convinced it that Williams acted with bias and malice throughout this “unfortunate story.”

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