School custodian returned to work drunk, sexually assaulted co-worker

But Ottawa-Carleton District School Board wasn't justified in firing him, says Ontario Arbitration board
|employmentlawtoday.com

The Ottawa-Carleton District School Board wasn’t justified in firing a custodian who returned to work drunk after hours and sexually assaulted a female co-worker, an Ontario Arbitration Board has ruled.

The board awarded Franco D’Angelo, who was chief custodian at a school, his job back, albeit at a different school than the one where the victim worked.

What happened the night of the assault

The alleged assault took place on Feb. 3, 2004, at about 8 p.m. D’Angelo left work a few hours earlier, at the end of his shift, and returned to the school in a drunken state, having spent the intervening time at a local bar.

He used his keys to get into the school, where he sought out a colleague — a regular part-time custodian, described in the arbitration decision as “petite,” who had been employed by the school board since 2000.

It is alleged that D’Angelo, who stood six foot two and weighed 225 pounds, engaged in a “frightening sexual assault” in an isolated area of the school, in the course of which he lifted up the victim and hugged and kissed her.

Following an investigation, D’Angelo was suspended and his employment was terminated.

D’Angelo said he had no recollection of the assault on his co-worker. He said he had been taking prescription medications which, combined with the alcohol, had had an unexpected affect on him.

D’Angelo had been with the school board since 1988. His employment had been free of discipline. His normal workday was from 6:30 a.m. to 3 p.m.

At the time of the assault, he had several health problems. In addition to hypertension and sleep apnea, he had degenerative disk disease for which he took pain medication and a muscle relaxant. He had been warned he would become drowsy if he took the muscle relaxant and alcohol at the same time, but said he had done so frequently and had been able to cope with the effects.

His degenerative disk disease got worse when he shoveled snow, he said, and Feb. 3 was a snowy day. It was snowing when he started work, and he took the muscle relaxant (Flexeril) three times during the day. It was a busier than usual day, because of the snowfall and because some additional preventive maintenance was being performed at the school.

Lack of recollection ‘too convenient’

The board rejected the idea that D’Angelo had no recollection of the assault. It said it was “too convenient” that he remembered almost everything else that night, but had a blackout during the critical part. It cited a case involving Air Canada in which an arbitrator cautioned against accepting a worker’s explanation that he was in an “alcoholic blackout” at the time of his misconduct:

“Given the ready convenience of this kind of ‘blackout’ defence, one has to be circumspect in simply taking the transgressing employee’s word for it,” the arbitrator said in the

Air Canada

case. “It is significant to have other independent evidence that would provide corroboration of the employee’s capacity at the time in question.”

The board said there was some evidence D’Angelo did remember the assault — his wife testified that when he came home, he told her that he had spoken with the victim privately that evening to tell her what a good job she had been doing, and that he had given her a hug and a kiss.

The board was also critical of D’Angelo for not offering an apology to the victim. While he did apologize to her for the possible use of foul language on the night in question, he did not offer an apology for the assault. D’Angelo said that was because he didn’t remember the assault, something the board had already discounted.

“In our view, an apology was due for his drunken assault on her immediately (after) he sobered up,” the board said. “His apology to her on Feb. 5 cannot be regarded as a true apology since, even according to his evidence, it only related to the question of the possible use of bad language.”

It attached no weight to an apology conveyed by union counsel on D’Angelo’s behalf to a staff review panel because it was not addressed to the victim and was sent more than a month after the assault and after he had been suspended.

A serious act of misconduct, fuelled by alcohol

The board said it accepted the fact D’Angelo had a lot to drink during the afternoon and evening of Feb. 3, and that his behaviour that night was influenced by the alcohol and possibly aggravated by the prescription medication.

It said the assault was “quite out of character” for D’Angelo. It said several arbitration decisions have examined how a worker’s intoxication at the time of serious misconduct should be taken into account by arbitrators.

“Unlike the situations in many of those awards, there is no suggestion here that (D’Angelo) was suffering from alcoholism,” the board said. “There is also no room for doubt here about a causal relationship between the drinking and the misconduct.”

But the fact he was drunk did not distract at all from the seriousness of the misconduct, it said.

“Employees at work are entitled to be protected from sexual assaults,” the board said. “It is obviously unacceptable that an employee, even drunk, returns to his workplace after hours, lets himself into the building with his own keys, and assaults one of his subordinates.”

Why the board ordered reinstatement

The board said its decision should not be taken as minimizing the seriousness of the behavior. So why, then, did the board order his reinstatement?

The board said it was satisfied that intoxication giving rise to serious misconduct should be viewed as a mitigating factor. In the earlier mentioned

Air Canada

decision, the arbitrator reduced the penalty of an employee from a discharge to a lengthy suspension after he had stolen company property during a alcoholic blackout. After reviewing expert evidence on alcoholism and blackouts and various earlier awards, the arbitrator in the

Air Canada

case concluded:

“I am satisfied that the condition and behaviour of the grievor at his workplace on April 15 was in fact an aberration, wholly uncharacteristic of the grievor as an employee, and a direct result of the unusual circumstances of that day that led him to drink excessively before his shift. The grievor appreciates that intoxication at work can never be a complete justification, and claims no back pay in the matter. He has been off work from Air Canada for almost three years — eight months without income, and since then at a lesser rate (as well as benefit package.) That, I am satisfied, constitutes an appropriate penalty … as opposed to discharge.”

In D’Angelo’s case, the board said it was worth nothing that, unlike in

Air Canada

, he did not show up to work intoxicated.

“He returned to the workplace intoxicated after the end of his shift, at a time when it was not unreasonable for him to be drinking, as he was not due to work for another 10 hours or so,” the board said. “In our view, this element adds greater strengths to the mitigating factor.”

It summed up the case as follows:

•a worker with 16 years of unblemished service;

•a single episode of very serious misconduct;

•no apology; and

•D’Angelo’s intoxication at the time, when he was not due to be at work for another 10 hours.

It said discharge in this case simply wasn’t warranted. It said there was no basis to conclude that the school board could not trust D’Angelo to behave appropriately in the future, but it did emphasize that it was troubled by the lack of apology.

“We accept that denunciation, protection of other staff and deterrence are legitimate objectives of discipline in a case like this, but we feel that a lengthy suspension can accomplish those goals,” the board said.

But it also said it would be “unacceptable” for D’Angelo to go back to a position where he would be supervising or working with the victim.

“She is the innocent party in this matter and should not be forced with daily reminders of her terrifying experience,” the board said.

Therefore it:

•set aside the discharge;

•said D’Angelo was to be considered a surplus employee, entitled to recall, except that he is not entitled to bump any other employee and will not be assigned to the school where the victim is working; and

•ordered that D’Angelo was not entitled to any compensation for lost earnings.

For more information see:

Ottawa-Carleton District School Board v. O.S.S.T.F.

, 2005 CarswellOnt 5056, [2005] L.V.I. 3592-2 (Ont. Arb. Bd.)

I.A.M.A.W., Local 2323 v. Air Canada

, 2000 CarswellNat 1300, [2000] L.V.I. 3113-6, (

sub nom.

Air Canada v. I.A.M., Loc. 2323

) 89 L.A.C. (4th) 97 (Can. Arb. Bd.)

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