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HomeMy WebLinkAbout1990-2250.Basso.93-08-06 Decision Part 225 bar, had no place at work. Moreover, counsel argued that the evidence established that the grievor knew, or should have known, that his advances and comments to Ms. R. were unwelcome, inappropriate and threatening. Counsel argued that even if the Board simply accepted the grievor's admitted conduct it would find sufficient cause for discipline. Counsel suggested that asking Ms. R., a person he has never met before, if she was married, winking and repeatedly asking her out, not to mention suggesting that she sleep over, when each and every invitation was rejected and the information consistently conveyed that she was unavailable and otherwise committed, would support the discipline imposed given the fact that she was young college student on a training assignment in a subordinate employment relationship. When that evidence was considered alongside MS. R's testimony, which counsel urged the Board to prefer to that of the grievor, the concl'usion was, according to counsel, inescapable that discipline had been justly applied. Counsel suggested there were a number of reasons to prefer Ms. R's evidence to that of the grievor. He noted that after the very first shift, Ms. R. raised her concerns with Mr. Natale, who promised to do something about them. This fact, counsel suggested, was generally corroborative of her version of events. Counsel argued that whether the grievor was referring to Ms. Korkiakowski or Ms. R. when he called out "sweetpea" was ultimately immaterial. What mattered, in counsel's view, was that the residents heard what he was saying and started calling Ms. R. "sweetpea," thereby undermining her authority and position in the cottage. i 26 Counsel referred to some of the other allegations in this case, including the unwanted hand touching, the grabbing from behind, the kiss blowing, the brushing of his lips on her neck, the questions about whether Ms. R. was a virgin, and the suggestions that she join him in the bathroom as part of her duties as well as to "fix her up", and argued that this evidence should not just be believed, but that it more than supported the discipline that was imposed. Very simply, in counsel's view, there was a well-established pattern of misconduct present in this case, and the pattern did not significantly differ whether it involved Ms. R., Ms. Leduc or Ms. Cardinale. The grievor, in counsel's view, is someone who cannot take no for an answer, and someone who does not give up. Counsel urged the Board not to make anything out of the fact that Ms. R. left with the grievor at the end of the shift on May 25th. Counsel pointed out that Ms. R. was locked in the cottage without a key, and all she did was leave at the first opportunity. Counsel noted that the young offender who testified, as well as Ms. Korkiakowski, independently confirmed that Ms. R. was upset with the grievor, and these independent confirmations were another reason to prefer Ms. R's evidence to that of the grievor. Counsel also argued that as a college student on placement, wanting to leave a good impression, Ms. R. was acutely aware of everything that was taking place. Counsel argued that this evidence should be contrasted with that of the grievor, who testified that he did not know that Ms. R. was upset, and he was surprised when the charges against him were filed. All the grievor could recall, counsel pointed out, was that he is a crude and flirty guy. Counsel suggested that this crude and flirty approach explained a lot, including the fact that he does not remember most of the things that Ms. R. recalls. It was noteworthy in this respect, counsel suggested, that the 27 grievor testified to being surprised to learn at this hearing that neither Ms. Leduc nor Ms. Cardinale appreciated his advances. Counsel argued that Ms. R. has no interest in fabricating events, while the grievor clearly has an interest in denial, especially given his history of prior and consistent misconduct. Counsel urged the Board to exercise caution in relying on Ms. Korkiakowski's evidence that she did not hear or see anything out of the ordinary on May 25th. Counsel pointed out that Ms. Korkiakowski has reasons to be reticent in testifying against the grievor, given the treatment she received from him after the last time she reported him. It was also noteworthy, counsel suggested, that Ms. Korkiakowski did not receive an invitation out on the Friday night, while the grievor testified that he asked everyone out. In counsel's view, when all of this evidence was considered, it was absolutely clear that the grievor knew, or should have known, that his words and actions were unwelcome, inappropriate and harassing. Counsel referred to the Ministry's sexual harassment policy and to the clear statement found therein that discipline may result from behaviour of this kind. Counsel pointed out that the grievor was warned in his last two performance evaluations that management would not tolerate this type of conduct, and submitted that his continued misbehaviour demonstrated a complete disregard for female employees. Counsel argued that this behaviour should not and could not be tolerated. In conclusion, counsel argued that the evidence clearly established that the grievor had sexually harassed Ms. R. Counsel referred the Board to four authorities: Re University of Manitoba and Canadian Industrial, Mechanical 28 & Allied Workers. Local 9, 6 L.A.C. (4th) 182 (Chapman), Re Canada Post Cora and Canadian Union of Postal Workers, 27 L.A.C. (3d) 27 (Swan), Canadian Union of Public Employees and Office and Professional Employees' International Union. Local 491, 4 L.A.C. (3d) 385 (Swinton), and Re Treasury Board (Employment and lmmigration Canada) and Broomfield, 6 L.A.C. (4th) 353 (Young), and argued that the conduct complained of in this case fell squarely within the established and accepted arbitral definitions of sexual harassment. Counsel argued there was clear evidence in this case, on an objective standard, that the grievor engaged in a pattern of coercive conduct involving unwanted workplace touching and unwelcome comments and suggestions directed at pressing his repeatedly rebuffed sexually oriented remarks and requests. Counsel suggested discharge would have been an appropriate penalty in this case, and given that only a three-day suspension was imposed, counsel urged that the grievance be dismissed. Union Argument Mr. Bevan began his submissions by taking issue with some of the factual assertions made by the employer in presenting final argument in this case. These matters aside, the union pointed out that the grievor had clearly admitted some things, and denied others. In Mr. Bevan's view, none of the things the grievor admitted presented a sufficient basis for the imposition of discipline. Mr. Bevan argued that while it may be crude to ask someone if he or she is married before being introduced to that person, asking that question alone did not and could not constitute, in the union's submission, sexual harassment. Mr. Bevan pointed out that the grievor unequivocally denied all of the other serious allegations made against him, and he suggested that on balance the 29 Board should prefer the grievor's evidence to that of Ms. R. Mr. Bevan suggested that Ms. R's evidence was both questionable and selective, and he pointed out that she did not mention in her statement to the Ministry's sexual harassment investigator that she left early with the grievor - the person who had supposedly spent the better part of two shifts sexually harassing her. Mr. Bevan pointed out that several witnesses, with no axe to grind, testified that Ms. R. said, "Al wait up," or "Wait up Al," or some statement of this kind, while Ms. R. denied under oath ever having said anything like this. Mr. Bevan urged the Board not to discount Ms. Korkiakowski's evidence. He noted that she testified to seeing and hearing nothing out of the ordinary on May 25th and he suggested that there was no reason to believe otherwise.- Ms. Korkiakowski had reported the grievor before and, Mr. Bevan suggested, the evidence suggested that if she had cause she would do so again. What was material, in the union's submission, was that instead of waiting to assist Ms. Korkiakowski in the completion of her job, Ms. R. rushed to leave with the man who had allegedly harassed her. Mr. Bevan urged the Board to disbelieve Ms. R's account of events. Mr. Bevan made some submissions about a number of other matters in dispute, including the "sweetpea'' incident, and suggested that this incident also indicated that Ms. R's account of events, for whatever reason, was not one that should be believed. Moreover, Mr. Bevan pointed out that the other correctional officer who was present, Mr. Pen heard and saw nothing remarkable during the course of his shift. Mr. Bevan suggested that the young offender's evidence, which was contrary to his almost contemporaneous written statement, should be ignored, for it certainly 30 could not be believed. In that regard, Mr. Bevan noted that the employer could have, but did not, bring in any other young offender who supposedly called Ms. R. sweetpea or who conceivably witnessed any of the other issues in dispute. Indeed, counsel pointed out that none of the serious allegations in this case were witnessed by anyone. Arguably, what happened, Mr. Bevan suggested, was that Ms. R. read much more into the suggestions that were made than was actually present or that actually took place. The "sweetpea" incident and the invitation out on Friday night were two possible examples of this. Mr. Bevan also suggested that the Board not make too much out of the evidence of Ms. Leduc and Ms. Cardinale. The incidents they described took place years ago, and both women decided to handle the matter in their own' way. Mr. Bevan also observed that the employer shares some responsibility in this case, because it knew of these incidents and did nothing about them. Given that the employer knew about the grievor's flirty and crude style, and did nothing about it, Mr. Bevan suggested that an element of condonation could be said to be present. In that regard, the union pointed out that the employer was supposedly informed by Ms. R. of her concerns on May 24th, and it did nothing. Had the employer acted when advised, most of the incidents complained of might never have occurred. Mr. Bevan forthrightly conceded that if the grievor invited Ms. R. to join him in the washroom, or if he asked her if she was a virgin, then discipline would be justified. The grievor denied these allegations, and Mr. Bevan out that there was no independent evidence establishing that anv many years and did nothing, the union requested that the grievance be upheld. many years and did nothing, the union requested that the grievance be upheld. Employer Reply In reply, employer counsel rejected the assertion that the employer had somehow condoned the grievor's behaviour. In counsel's submission, the evidence was to the exact opposite effect, and he pointed out that the grievor's misconduct was brought to his attention in two successive performance evaluations. The fact that neither Ms. Leduc nor Ms. Cardinale chose to make formal complaints against the grievor did not mean that the employer condoned the grievor's conduct. The grievor knew, or ought to have known, in counsel's submission, that it is wrong to approach a perfect stranger at work and ask her if she is married as a prelude to inviting her out. Likewise, the grievor knew, or should have known, not to blow kisses and wink at co-workers in the workplace. Counsel argued that blaming Mr. Natale for not taking action right away was akin to a captured bank robber blaming the police for not capturing him or her before he or she robbed more banks. One of the main points of this case, in counsel's submission, was the grievor's total inability to accept responsibility for his misbehaviour. In counsel's view, as soon as the employer received Ms. R's complaint, it acted quickly and properly, and it could hardly be said that in suspending the grievor for three days, in the face of its investigation results, the penalty was in any way excessive. Counsel pointed out that the grievor was not disciplined for his actions with respect to Ms. Leduc and Ms. Cardinale. He was disciplined because of how he behaved towards Ms. R. And whether Ms. R. said on that Friday night, "Wait up Al," or "Al let me out," was really, counsel argued, beside the 32 point, which was that she wanted to get out and get away from the grievor as quickly as possible. Counsel also urged the Board not to readily discount the evidence of the young offender. While there was some discrepancy between the young offender's initial statement and his evidence before the Board, what was significant, and consistent, was that the grievor touched Ms. R., and she reacted to it in a way that made the young offender take note. Counsel recalled Ms. R's evidence that she sometimes smiles when she is nervous. Counsel suggested that Ms. R. had ample reason to be nervous around the grievor because he began to "hit on her" as soon as he saw her. In conclusion, counsel argued that the only reasonable conclusion to reach in this case was that sexual harassment occurred and that the discipline was imposed with just cause. Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that the evidence establishes just cause for discipline, and that in all of the circumstances of this case, there is no reason to interfere with the relatively minor penalty management has imposed. We are satisfied after bearing and carefully considering all of the evidence that it establishes a pattern of conduct that fits squarely within accepted definitions of sexual harassment such as that provided by Chief Justice Dickson (as he then was) in Janzen v. Platy Enterprises Ltd. (1 989), 59 D.L.R. (4th) 352 at page 375: "I am of the view that sexual harassment in the 33 workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment." It may be true that the grievor had nothing to do with the preparation of Ms. R's performance evaluation, but that fact does not affect the result we have reached, for we are ultimately satisfied that the grievor's actions, both admitted and denied, were such so as to detrimentally affect the work environment. While it may be appropriate for the grievor to act "flirty and crude" in his private life, that "style" has no place at work. However, if the sole issue in this case had been whether the grievor asked Ms. R. whether she was married prior to being introduced, we would have likely considered the question inappropriate but insufficient to support discipline. Likewise, if the "sweetpea incident" and the rescinding of the demerit points that Ms. R. had imposed were the only issues before the Board, we would have upheld the grievance. While calling a female co-worker "sweetpea" in the workplace and rescinding the penalty imposed by another female co-worker are arguably suggestive of a certain attitude towards women, we would not have found that these actions, considered alone, were at all sufficient to merit this disciplinary response. These are not, however, the only allegations before us. While the grievor may have had appropriate reasons for rescinding the penalty, and while it may be that the relationship between the grievor and Ms. Korkiakowski is such that they affectionately exchange pet names (although the words used in the undressing incident suggest otherwise) the grievor also admits in this case to asking Ms. R. out several times after being advised in no uncertain terms that she was not interested and was otherwise committed. 34 The grievor also admits to making certain suggestions, we find inappropriate in that context, such as the invitation to sleep over, when he knew, or should have known, that this behaviour and these suggestions, were inappropriate. The grievor also admits to regularly engaging in flirtatious behaviour, including winking in the workplace, although he could not recall winking at Ms. R. The grievor testified that he might have put his hand on Ms. R's shoulder. We find that the grievor should have known that behaviour of this kind is unacceptable because it is obvious and because he was told as much in his two previous performance evaluations. He also received a letter of counselling in connection with the undressing in the office incident. The grievor was given ample warning that his behaviour was unacceptable, and- the fact that two of his co-workers decided to deal with that behaviour in their own way and did not complain formally to management does not, in our view, establish any employer condonation of the grievor's misconduct. While it is extremely difficult to make findings about credibility, in this case it would be irresponsible not to do so. We find that the evidence of Ms. R. must be preferred. Ms. R. had no reason to fabricate any allegation against the grievor, and her behaviour following the events on May 22nd and May 25th is almost fully consistent with the complaint she subsequently filed. After her first day of working with the grievor, Ms. R. complained about him to her supervisor, Mr. Natale. While it was unfortunate that Mr. Natale forgot about the complaint and did not immediately follow up with respect to it, that is certainly understandable in the context of this case. First of all, Ms. R. did not initially provide a lot of details to him, and given the fact that she was new on the job, she testified that she wanted to make i 35 a good impression. Second, Mr. Natale was advised of this concern at the end of his shift, and then he forgot. People forget things all of the time, and given that the complaint against the grievor was, at this point, relatively vague, there was no demand for immediate action. Other actions on Ms. R's part are also fully consistent with the veracity of her claim. On May 25th she complained about the grievor to Ms. Korkiakowski, who gave her some practical advice about how to deal with him. She also complained about the grievor to one of the other correctional officers on staff, Mr. Levesque, and she specifically advised him that the grievor was "hitting on her" and had "rubbed himself against her." Following the May 25th shift, she contacted the placement coordinator to discuss her concerns, and she did so as soon as practicable. The following Monday, she- formally raised her concerns with Mr. Natale, and thus began the process leading to the formal filing of her complaint. The evidence supporting Ms. R's version of events is much stronger than that in support of the grievor. It is true enough that Ms. Korkiakowski, Mr. Levesque, and Mr. Pen all testified to witnessing nothing out of the ordinary on May 25th. This is hardly surprising. It is quite uncommon for sexually harassing acts and statements to be made in front of witnesses. In addition, the grievor's own evidence of his crude and flirty style does not weigh in his favour, while his response to the testimony of Ms. Leduc and Ms. Cardinale that he had no idea anything was wrong until they testified is remarkably similar to his expression of surprise when the complaint leading to the discipline in this case was filed. The grievor has no apparent appreciation of the fact that his crude and flirty style is unwelcome in the workplace, and that it has the effect of generally poisoning the workplace 36 environment. While the union made a lot out of the fact that Ms. R. volunteered on May 25th to leave early with the grievor, that behaviour must also be understood in context. It was either an impulsive thoughtless act, or it reflected her desire to get away from the grievor as quickly as possible. In either case, it does not impugn her credibility in any respect. On balance, and at the end of the day, we find sufficient evidence to establish that the grievor engaged in conduct that he knew, or ought to have known, was sexual harassment. His flirty and crude style has no place at work, and there is no basis, in this case, to find a three-day suspension excessive in any respect. Accordingly, and for the foregoing reasons, the grievance is dismissed. DATED at Toronto this 6th day of August, 1993. William Kaplan Vice-Chairperson D Wintermute Member Member