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HomeMy WebLinkAbout1990-1855.Sidney.92-08-24 i'i'' .~ ~i~'?J~''' "~ ;';:' '. ONTAR;O EMP&O¥£$ DE LA COURONNE ,~..¥~,~.,~, ,~ .,~ ~ CROWN EMPLOYEE~ DE L'ONTAR/O REGLEMENT BOARD DES GRIEFS ~80, RUE O~AS OUEST, BUREAU 2~O0, TORONTO (O~TARIO~. MS~ ~Z8 ,' · ~ '' . ~AC~/MILE/T~L~COPIE ~ {4t~ 326-r396 ~855/90' ,. IN THE ~TTER OF ~ ARBIT~TION Under THE CRO~ EMPLOYEES COLLECTIVE ~ARGAiNING ACT' Before THE~ GRIEV~CE SETTLEMENT BOARD B~T~EN -- ;~. ' 0PSEU '(Sidney) · - - Grlevor -- " ~'; ,. ~'~ " ' ~ aa~ - -. " The Crown '-= = ~ -~n~n~s~r~ of Transportation) ~ .. ..... '~.- Employer BEFORE: J. McCamus Vice-Chai~erson · -'. S. ,Urbain "-Me. er H. Roberts Me. er FOR THE : K.' Wh:i.taker G~IEVOR' Counsel : ' - ';' Ryd~r;.'Whitaker, wright & 'Chapman Barristers & So'licito~s FOR THE R. Filion' EMPLOYER Counsel .... :' ' ~-;--' ' Wi-nkler;; Filion~ & Wakely " ' "- Barristers & Solicitors HEARING ' ' August 7, ~1991': October 29, 30, 1991 This grievance arises from an incident involving the Grievor, a Driver Examiner Supervisor located in the Employer's Simcoe office, and the only other employee.in that office, an Inside Examiner named Candace Swarts. The incident gave rise to an allegation by Ms. Swarts that she had been sexually harassed by the Grievor. The incident was investigated by both the Union and by the Employer and, indeed, gave rise to a grievance on the part of Ms. Swarts. Having satisfied itself that the allegations made by Ms. Swarts were true, the Employer imposed a suspension of ten days upon the G~ievor. In the present grievance, the Grievor challenges that suspension as having been imposed Without just cause. As will be indicated further below, the incident in question caused Ms. Swarts a considerable amount of distress and anxiety with the result that she did not wish to return to work under the supervision of the Grievor in the isolated circumstance~L of the Simcoe office. In the grievance brought by Ms. Swarts, therefore, the Union took the position that the grievance could not be settled unless the Grievor was moved by the Employer to a new location. The Employer acceded to this view and transferred the Grievor. to the Cambridge Driver Examination Centre, In the present grievance, the Union now takes the position that the Grievor's transfer to Cambridge constitutes a further and improper disciplinary sanction imposed upon the Grievor. The position taken' by. th~ Employer in this grievance is that .the ten day 'susp~n~i.on' co~i~utes 'an appropriate disciplinary response'to'a serio~s-'a6t o'f.'misdonduc%, albeit one undertaken by .. an emp~oYee who has a ~eng~hy a~d ~roblem~free track record with the Employer. The gravity of the misconduct, is exaggerated in the Emp10Yer_,s:view, by' the fact that the Griev0r was, at the time in question,- 'acting- i~ a supervisory capa¢it~-'' With respect to the transfer to Cambridge, the Employer has argued ~that the tYahsfer is'~hot- a 'disCiplinary' Sanction 'but, rather, represents;an attempt on-the Employer's part t~:dfscharge i't~ obligations under the'~oliiective'Agreement to ~rovide'empl.~yees with :an' environment 'inl .~h~, wbrkplace, which~ is 'free of sexual harhssment.--That obligat'iSn'-of-th~ Employer'-iD Set ou% in Article 27.t0.1'of the'C~llec{i~e A~?eemen~-in the foil. owing.terms: "27.10.1 :~A~l:'.emplo~ees 'c6ve~ed~by thiS'Agreement have a right to freedom from harassment -in the wOrkplace'beCaUSe of%ex by his or her employer or .agent of the employer or .. '- ' -by another employee. 'HaraSsment means engaging in a course of vexatious comment or'~onduct that is know~ or ought reasonably to be known to be unwelcome. Th~- c°ncept-.6f' sexual haras'sme;nt i's 'fu~ther~-def'ined ~n--A~%icle 27.10.~2, in~a.nguage~'evidently-drawn- from the~defiSition 6f t~is concept to be 'found in the Ontario Human Right~. Code in the following manner: '.- .. "27.10.2 Every employee covered by this Collective Agreement has a right to be free from, (a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to employee where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome;. or (b) a reprisal or a threat of reprisal for the rejection of a sex%~al solicitation or advance where the reprisal is made or · threatened by a person in a position to confer, grant or deny a benefit or advancement to the em~loyee. Although the submissions made by the parties to the present dispute focused on the language of these Articles, we note in passing that it is not obvious to us that the Employer's responsibility to deal with matters of sexual harassment is solely the creature of this Article of the Collective Agreement ~r, indeed, of the recently enacted and parallel provisions of the. Ontario Human Rights Code. At least some forms of what are now referred to as sexual harassment coul~ give rise to successful complaints under the unamended version of the Human Rights Code and could give rise to discipline in an appropriate case. Moreover, there are no doubt some types of consensual social interaction in the workplace between supervisors and employees which though perhaps not technically "sexual harassment" under the Human Rights Code, might nonetheless constitute improper conduct on the part of a supervisor which might give rise to the imposition of discipline. In the present case, however, the parties have confined themselves to a consideration of whether the incident in question constituted 4 sexual hara~smen~ within the above Articles of the C~llective 'Agreement and we ha~e therefore similarly limited %he scoPe 'of our own inquiry'.' " The incident' gi~ing rise'to' this grievance o6~u~red on May 30, 1990 in the Simco&' office· -~%'lthough the evidence~ of 'th'~_' Gri~0r . ~.; ~. . - -;.. ~ ' , and Ms. Swarts is in agreement on some aspects of what occ~rred"0n that af't~rho'On,- thei~' eviaence also differs in materia¥' respects. Although' p~e~enting 'that ~v'idenc~ · was '6bVio~s~ly a painful experience fo~r ~oth ~ndividuai~' And though, its recounting in ~he present c~ntext will' ~'~ doubt be a' source °f-furth~r ~d~k~omfo~', it ~s un'fortunately ne~e'ssar~ t~ consider the incident' in Some 'detail. -The Griever's position, essentially, is"~hat the parties were 'in some .s'e~se equail~ ~'e~onSib'ie for what occurred and accordihgly, that the discipli'ne-'i~posed on him is. ~ithout'-~6u~dation. Ms. 'S-Wa~ts, on the other h~and, v~ews the incident as being {;irtu~ly '~.'1~ exclusive res~ohsibili'ty o~ the~ ~rievo~. As ~he Employer appears t° 'have accepted Ms Swarts' '~e~si~n of'the · ~nc~dent as the more accurate one, it is necessary to consider 'the episode, and the respective' impressions 6f the Grievor'ahd Ms. Swarts at some length. The Griever was 61 years of a~e at the time of~ the inCiden~t. He began his work with' th~'Empioyer 'in AugUst .of 1962 and be-~an working as a supervisor in 1967. Only one other el~ploy0e ~rorked in the Simcoe °ffi~e. ~s. Swarts wa~ ap~oi~ed' one a~d one-half yea~s $ before the incident occurred. Ms:. Swarts is much younger than the Grievor, being 32 years of age at the time of the hearing concerning this matter. Prior to the incident on May' 30th, the Grievor and Ms. Swarts appeared to have a satisfactory working relationship. Both are married with children and it would appear that it was .a not infrequent pastime for them to discuss their respective family circumstances in a friendly fashion. Although Ms. Swarts felt that the Grievor had made remarks that belied a sexist attitude from time to time, she evidently did not consider this to be a serious problem and neither commented on such remarks nor drew them to the attention of anyone else. There were also a few occasions when Ms. Swarts thought that the Grievor manoeuvred circumstances in order to stand close to her in a way which she did not like. Nonetheless, it was her evidence that she did not feel threatened by such incidents and simply moved away. It was also the evidence, both of the Grievor and Ms. Swarts that the Grievor had the practice of inviting his female co-workers or other female visitors to the office to "have a hug". The Grievor would allegedly stick out his hand and wiggle his fingers when extending such invitations. Ms. Swarts alleged, and the Grievor denied, that such overtures had been made by him to Ms. Swarts from time to time. Certainly, we are persuaded by the evidence led by the parties that the Grievor did engage in this practice to some extent. Again, however, it would appear that none of the employees found this a threate~in~ situation and ~hat such incidents were shrugged off, perhaps as .they.were intended to be, 'in humorous fashion.. In summary, Ms. Swarts described her reiationship with the Griever prior to May 30th as a "pretty g~od working r~l~ionship". On' the afterno;n of May 3-0%ff, however, the relationship substan%iali~ aeteriorated. The ~rievor and Ms. Swarts were alone, as was-normally the case, in the Simcoe office, at approximately 4 o'clock in the afternoon. What happened next was' acknowledged by th~ Griever to constitute inappropriate c~nduc~ on his part' In hi~' view, however, the incident could be described simply as an inappropriate "hug" with respect to which Ms. Swarts was a willing particiPant. The 'in~nt should ~ot, in his view, be considered to be a major act of misconduct or, indeed, an appropriate subject for 'discipline. From Ms. ~warts, perspective, however, the incident was one which bordere~ on the traumatic. The incident caused her considerable anxiety which led her to seek medical and Counselling assistance and further, on ~he advice of her counsellors, to take many ~eeks away from'~work. The incident beg~n at the initiative of th~ Griever. Ms. Swarts testified that the Gri~or stuck out his arm and wiggled his fingers and'said "How about a snuggle~,,' The Griev6r's version of this aspect of the 'episod~ is tha~ he said, as he had said to others in t~e past, "Would you like a.hug?". A~cording ~to the Griever, 'Ms. 'Swart~ then said'"I th~nk you would"', came over t© him ? and embraced him. Ms. Swarts' evidence on this point was that, although she made no verbal response, .she did reach out and grab the Grievor's fingers...The Grievor then "pulled her" over to him and began to embrace her. Although it will be necessary to consider further the subsequent aspects of this incident, we observe at this point that it is our view that by this' stage of the incident, the Grievor had already engaged, in conduct that is an appropriate subject for discipline. It is simply inappropriate for a supervisor to make a pass at a female employee subject to his supervision. The Grievor certainly had every reason to believe that such an overture would be unwelcome. We accept Ms. Swarts' evidence that such overtures have been rejected by her and by others in past. The implications of Article 24 of the Collective Agreement and, indeed, of common sense are that female employees should not be placed in the awkward po, sition of having to reject overtures of this kind from their male supervisors. The Grievor has attempted to excuse if not justify this type of overture on the basis that it is just "joking" and on the basis that he is a person who is inclined to hug others as indeed occurs very frequently at his church. We find this to be a very unpersuasive feature of the Grievor's 'explanation for this incident. Hugging as an expression of'greeting or friendship at church is a very different matter from a senior male supervisor asking a junior female employee for a hug in the workplace and in the absence of other employees. Moreover, the ~rievor's suggestion that what he had in mind was an innocent or social hug is belied by the evidence of what subsequently occurred. It is evident that the Griever had in mind a more serious embrace. On his own evidence, the Griever placed his hand on Ms. Swarts' hip and invited her to come closer. On Ms. Swarts' evidence the Griever was more aggressive than this. In her words the Griever grabbed her ass and tried to pull her closer to him. We have ~ no difficuity Characterizing ~the Griever's'initiative as an "advance". Nor do we consider it to be of any assistance to the Griever, that Ms. Swarts responded to some extent positively to his overture. 'On her own evidence, Ms. Swarts grabbed the Griever's fingers, a move which he not unreasonably understood to be an expression of agreement or interest. There are two reasons for our conclusion that Ms. Swarts' reaction is not of assistance to th~ Griever. First, we repeat the point that the Grievor'~ first act of misconduct was in making the overture. Female employees are ~entitled to be free from the burden of dealing with such overtures from their supervisors. The Griever had no reasonable basis to presume that it was a welcome overture. ~Indeed, in his own -testimony he claimed to be surprised at what he understood to be her response. Secondly, it is evident that from the ~ntiretY of the evidence concerning this incident that Ms. Swarts was reluctant to offend the Grievor, and indeed, it is not surprising that employees are reluctant to Offend their supervisors. Accordingly, the fact that a particular overture may elicit compliance or a reaction which is to some degree positive will not, in itself, serve to vitiate the inappropriateness, of the initial overture. Thirdly, it is the Grievor's'own evidence that hugging can occur in a friendly or, one might say, non-serious or non-sexual fashion. If Ms. Swarts did signal a willingness to embrace, there was no reason to assume, as he apparently did, that it would be appropriate for him to try to escalate the embrace into a more serious encounter. The pattern thus revealed at the initial ~tage of this incident was repeated as the incident unfolded. From the Grievor's perspective, the failure of Ms. Swarts to flatly indicate that the incident should come to an end was taken by him as an indication of her willingness to continue. From Ms. Swarts' perspective, the Grievor, in prolonging the espisode, ignored her signals of her lack of enthusiasm or, ~ndeed, unwillingness to continue. It is, however, common ground in the evidence of the two witnesses that Ms. Swarts, having rejected the Grievor's overture to "come closer" said something like "someone might (or will) see us". Ms. Swarts explains this as an attempt to withdraw from the situation without hurting the Grievor's feelings. The Grievor responded by suggesting that they move into the lunch room where they could not be seen. The Grievor suggests that Ms. Swarts voluntarily walked arm in arm with him into the lunch room. Ms. Swarts' view was that she had little, if any choice in the matter. She was, in her words, "dumbfounded". She "couldn't believe this was happening' ". Once .in the lunch ~o°m~ the Grievor initiated a fUrther 'embra6e. Again, t~e Grievor describes it as a consensuai situation. Ms. Swarts describes the embraCe as somewhat aggressive. At an early point,J'however~' Ms. Swar~sl accordin~ to both witnesses, plainly · .- ~ ~' . instructed the Grievor to stop and termi'nated the 'incident ~y duckin~ under his arm and mbving back.into the general area. ~ As with h~r testimony"c0ncerning the 'commencement of this episode, i% is quit'& possible that 'the evidence of Ms'. Swarts ~ightly overstates th~ aggressiveness of the Grievor's'conduct. Nonetheless, we ~rej'ect the Griev°r's su~gesti°n that he and Ms. swarts' were equally responsible for the 'episode as ~t Unfolded~ While Ms. Swarts' suggestion that ".someone might see us" might be considered to be somewhat ambiguous, iwe think there"were clearer signals Of her lack~f-enthusiasm 'which th~ .Gri~vor Chos~ to ignor6. FUrther, even if Ms'.' swarts did not Signal as clea~ly as 's~e might hage d6ne that she Wished the episode ~'o stbp, we do hot think ~hi's' 'is of' ~uch a's~is'tance t0"the ~rievorl~ The Grievor placed M~. Swarts in. a Position where she ~as, according' to h~r 'evidence, "d~mbfo~nd~d"~ h~rdfy able to beiie~e What was ~appening to her~, reluctant t6 hurt the Grievor'~ feelings', 'flustered, 'frightened,' upset,."try~g to th'ink'of ~'~Y bu~ of ~he sit6ati6n calmly" and assuming the' Grie~0r would stop.. She was unfa'i~ly placed in a situatioh bY her supervisor,' the Griever, where such a reaction would be perfectly normal and understandable. If 'it led her to be less thah clear in demanding that'the episode end, we do not think that the Grievor, having created this situation, 'can justify his conduct or ameliorate its 'wrongfulness on this basis. In summary, then, if the Grievor's theory of this incident may be described as one in which the Grievor and Ms. Swarts shared equal responsibility for what occurred, whereas the Employer's theory is that the Grievor alone bears such responsibility, we share the Employer's view of the matter that the Grievor, by initiating the episode and by taking the initiative in its prolongment, engaged in activity which is highly inappropriate for one in a supervisory position and rendered himself, in our view, subject to.the imposition of a significant, disciplinary sanction. Before turning to consider the appropriateness of the sanction ultimately imposed, brief mention need be made of the rather substantial evidence led in this proceeding concerning subsequent events. This evidence falls essentially into either one of two categories. FirSt, considerable evidence was led to show the level and nature of the anxiety and distress Suffered by Ms. Swarts as a result of this incident. We think it unnecessary to provide a detailed account of this evidence. We are satisfied that Ms. Swarts-' anxiety was genuine. She sought and obtained medical advice and a regimen of counselling, during which period she was absent from work, in order to cope with the stress caused by this episode. It may be that other individuals might respond to such problems in other ways. Be that as it may, there is no question in our view~that Ms.~ swarts', reaction is a'genuine one .which'.has'-~ed ~er to :believe ~ery. firmly that ~she ~c0uld not feel 'comfortable working,, again under the'Grievor's supervision, ~espgcially,in the isolated~.cir~umstances.of the S~mcoe-office~ ~ · The,seco'ndcategqry.of evidence related e'ssentially-~to ~arious ~comments~.~ made ~by the 'G~ievor~ 'on May 30th~ and .on subsequent ~occasions..'This.evidence. was.i~o the'extent.that it was'~ed by the 'Employer~ meant~to demonstrate~that the Grievor manifesteda'great ~lack of.~sensitivity~.to the%feelings of Ms. swarts. ~Thus, on May 30th,',shor~Y afte~.'~the incident, 'the' Grievor.'made~a'..f~w.light hearted references'to.:the-:incident. _From. Ms. Swarts' pgrspective, this, sUbstantially 'increased :the painfulness of the~.experience. .From theGrievor's perspecti=e,l he.was.just_trying to 'tlighten_up" the situation a bit; . Similarly,' the .Grie~or's suggestions on 'subsequent occasions that:he and.Ms:~ Swarts_Put this episode behind them. and try to get back.to normal, indicated.~o Ms. 'swar'ts that-he would.not let go of lhe subjectz,' Further,'.his'statement that':'she was-"making 'a'mountain out of a m01e hiIl"'and'that she herse'lf ~bore some resonsibility for the episode., was .viewed by 'her.as 'further .aggravati~n:.of. the original 'injury. '~' ~ .' , "' ~,- -[ ~.. ~. . ,.'.' ~ ~ ? .- ., · · . ,- 'The Employer has argued that these.~episodes represent further acts of sexual'harassment on. the part .of the Grievor on'the 'basis that-they Constitute, withi~ the menaing'of Article-. 21.10'.1, a "course of vexatious comment or conduct;:that'is known or.!ought reasonably to be known to be unwelcome". We have considerable difficulty in characterizing the Grievor'svarious comments in this fashion. Many of these overtures represent, in our view, attempts by the Grievor however unsuccessful or ill-designed, to remedy a bad situation. Given what we believe to be the Grievor's genuine regret that the episode had occurred coupled with his genuine belief that Ms. Swarts was over-reacting to what he thought should be considered a minor error in judgment, we are disinclined to characterize this series of episodes 'as a "course of vexatious comment or conduct". At the same time, a number of these remarks do manifest a lack of sensitivity to Ms. Swarts' feelings and, more importantly, strongly suggest that thelGrievor generally does not believe that he bears the principal, if not exclusive responsibility for this episode. Indeed, the Grievor indicated in his testimony that it is his view that Ms. Swarts had pressed this matter only because she had been encouraged to do so by her husband or by Union representatives. Her great stress was explained by the Grievor on the basis that she knew that she was an equal participant in the episode and felt badly that she had taken the path of blaming the entire episode on him. We do not accept the Grievor's view on this point. Ms. Swarts complained to her husband immediately upon arriving at home that evening. She pursued the matter with Union officials shortly thereafter and sought medical assistance within a few days. We find that her stress was caused by her reaction to an incident for which the Grievor bears primary responsibility. The inability or unwillingness of the Grievor to .14 accept- that' he, as the supervisor'..~f .Ms. Swarts,-~ bears that responsibility is, in our view, 'a factor that the Employer may well take into account in determining.whether it is appropriate in all the circumstances to.require M~'~, Swarts to'.c ntlnue to.~workunder the' supervision of the Grievor.~ ~ +' It~has been argued bY'the Union'that a .factual-foundation for sexual harassment within the meaning of Article 27 has not.been ~ established'in the present case. In the. Union's view, 'ir'must be established that the Grievor knew that' 'his attentions were unwelcome and'that, this conclusion is not warranted onLthe facts of the present ease. Although, to be sure, Article 27'~sets out an' objective standard for sexual harassment in as much as it requires .only that,.the perpetrator have. engaged 'in conduct 'that is either !'known or Ought reasonablY, to be-,known to be unwelcome",'the Union ~urges that discipline wil~o~iy be ~ppropriate in cases where the Perpetrator-~ctually knew. that t~e. Conduct was unwelcome.. Support -for this. proposition is drawn from two previous decisions of-boards o~ arbitration. In the firs't, 'Re: Government of the ProvinCe~ of Alberta (Department of Social Services and Community Health~ and Alberta Union of Provincial Employees (1983) 10 L.A.C..~(3d) 179, the grievor was a stock room attendant who had engaged in actions such as putting his arm around female employees or .calling 'then "love" or "dear" that a number of,.._employees "certainly found inappropriate. While the arbitration board found that the conduct was indeed inappropriate, it held, at pages 191- 192 that it did not rise to the level of "sexual harassment" and was in any event "certainly not intended as such by the Grievor". In the second case, Re: Ottawa Board of Education and Ottawa Board of Education Employees' Union (.1989), 5 L.A.C. (4th) 171~ the grievor was a janitor who had favoureda member of the secretarial staff with his attentions. He had pestered her with gifts of flowers and other manifestations of his interest. He failed to appreciate the signals of the unwelcome nature of his attentions. The board of arbitration noted that the definition of sexual harassment in the Ontario Human Rights Code contained an objective element and observed that this was appropriate in the .context of that statutory scheme. As the board noted, at page 180: "From the standpoint of the 'victim', the infringement of her rights is the same whether the other employee knows or not that he is causing her discomfort .... The principal thrust of the Code in this area is to declare, in s.6(2) that every employee 'has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee' and to impose an obligation on employers to ensure that this freedom is respected." The board went on to re~son that however appropriate this test might be in the context of the Human Rights Code, it would not be appropriate in the context of employee discipline. The board stated at pages 180-181: "The focus for arbitrators in suchlcases is not the impact of the behaviour of the 'victim' but the culpability of the Grievor's conduct. The employee ~o is disciplined for conduct which he did not realize iwas unwelcome but which a reasonable person would have realized is unwelcome is being blamed, in effect, for a lack of sensitivity to signals from the 'victim' of the harassment. I do not believe that a Grievor's failure to~ detect ~subtle ·indications that. his advances are unwelcome and offensive provides a basis for So too, -in the present.·case, ~he union-argues that ~he, Grievor's failure-to, appreciate ~that,his ·attentions were unwelcome should lead to the conClusion.that his conduct could not be appropriately made the subject of discipline. ~7- .~-. ~ ~- ':' ~ ~ There are a number of reasons why we 'have come to the conclusion that ~.the'.Union'~s submission ,on., this point must be · rejected. ·.First, we~.-think- tha.t ·the-Grievor is Caught ~by the subjective branch-'~of th'e·test. The Grievor had .no reason to believeL that his overture wou~d be welcome. Indeed, he had,~ery ggod reason ~o~believe and did believe that it·-Would be unwelcome~, According to his oW~ testimony, he~.was surpris~ed~ ~ by her response. Ha~ing reason~ to believe /and--.believing. that this. advance was unwelcome, he. should not-have made it. ~-.. ~ .... ,.. secondly, it-is our view that the fact .that the ~Griewor. was the supe~isor of Ms.~ Swarts is ~an important fact and~one ~that serves to distinguish the present case from those relied on by the Union. It is one thing for a stock room attendant or janitor to behave inappropriately,'but innocently, in his social interactions with women in~ his peer group. It is·quite another·matter for a ~.supervisor to press a sexual solicitation ~or advance upon a person where he'knows-or ought reasonably to. know_.that the· advance is unwelcome. A competent supervisor should .appreciate that such solicitations or advances place their female employees in an extremely difficult situation. For the reasons we have already indicated, supervisors who undertake such initiatives should not be able to rely on lack of sufficient directness in signals of discomfort from the employee in question. In the context of sexual solicitations or advances made by supervisory employees, then, we think that the objective standard, as a basis for the imposition of discipline, has much to commend it. Thirdly, we note that the two decisions relied upon by the Union'are, of course, not binding on this Board. Though it is not necessary, on this occasion, to indicate whether the'objective standard could apply to conduct other than sexual advances or, indeed, to a non-supervisory employee with respect to the imposition of discipline, we wish to note only that it is not our assumption that the objective standard.is in principle restricted only to sexual advances made by supervisory employees. There may be cases where an objective standard could be applied in other contexts of sexual harassment. In the absence of argument from counsel on this point, however we offer'no definitive view on this point. , In summary, then, we have come to the conclusion that the Grievor engaged in an act of sexual harassment within the meaning of that term in Article 27. In our view, the incident was a serious one warranting the imposition of a substantial sanction. · Mr. Smeaton, a Manager'in the Staff~Relations~6ffice~of the Human Resour~es~'Branch~of ~the 'Ministry~ t~Stified~'with respect to~ the reasons for th~Employer's~decisi6~ith respect~to of' dfscipline~ 'AlthoUgh we may take ~.sligh{i~ different view'of the factual circ%~stanCes Of the May 30~h inciden~ than Mr."Sm~aton did, We share his C6~dI~si0n that th~ 'Griev~r'b~ars"~h~ Prihcipal if no%-eX~lusive 'resp°h~ibi~ty forlthe incident and furt~er,"We share his~vieW ~that it wa~ appropriate for the Employer to impose 'a substantial penaltyJ Mr%~ Smeaton indicated that~he ~°ok £nto accouht a~numbe~'0f'factO~S ~uch a~he-G~ievo?'s~engthy record~of successf~l~ischarge3 of his responsibilities.' Ih-'-6ur-'view, Mr. · smeatOn took~ into account'th~-~rel~vant reasonable"decis~on'with respect~0-the~sanction.'~ Al~thoUgh there is some'-feel~ng i~ th~ Board that a~ 10 day suspension is on the high side' of ~he range~of acCeptable discipline f6r ~n~incident of '~his kind in'the present cf~mstanc~-,'we a~e'satlsf~ed that it~is within that range a'~d'%hat-it woul~ be inappropriate ~o s~bsti~ute a~sSer penalty in this~rb6eeding-J ~ 'Th~.UniOn has also ch-allengea~the~ EmPloyer"~ t. ransfer'of the Grievor 'to the-Cambridge office.~'In~his testimony, Mr.-"Smeaton 'explained- that~' ~at~'de~isi6n~ Was~'t~ke~' ihdepend~ntly'~ of the decision to impose a~'suspension 0n'~the~Gri~vor~ Th~ dec~sion t'o make the transfer was not, in Mr.i~Smeaton's'view,-th'~'imPosition of ~a further disciplinary sanction. Rather; it wa~an~attemPt'on the part of the Employer to disch~g~ i~{s obli~ation~u~der Artible'27 of the Agreement to provide Ms. Swarts with a workplace free from harassment. The Employer's position; essentially, is that in discharging that responsibility it can take into account the anxieties of an employee who, as a result of an incident of sexual harassment, feels that she can no longer work, especially in isolated circumstances, with the perpetrator of the incident without feeling threatened or intimidated.. On that basis, the Employer argues, it is entitled to reaclh a decision that the perpetrator of the incident should be .transferred to a'different location. The Union urges upon us that the Employer cannot take such a decision in the absence of some.rea:Don to believe that the perpetrator will engage in further acts of harassment. Further, the Union argues that there is evidently no basis for such concern in the present case. In other words, the Union rejects view that the creation of a "poisoned" work environment can constitute a basis for making such a transfer. In our view, the Union, on this point, takes too narrow a view of the Employer's rights and, indeed, responsibilities. In an appropriate case, the Employer could, in. our view, make such a transfer on either one of two grounds. First, the perpetrator of an incident of sexual harassment may thereby make himself an inappropriate person to engage in further supervision of the EmPloyee in question. If, as a result of his wrongful conduct, a supervisor makes it impossible for an employee to enjoy peace of mind in his presence, the Employer can reasonably come to the conclusion that the supervisor should no longer supervise the Employee i~ question. In such a .2O situation, in our view, the Employer could either transfer the concerned emplo'yee or, depending .on-the circumstances, could reasonably transfer the responsible supervisor. The Employer's ability to make such transfers is not, in our view, necessarily 'rooted exclusively in Article 27 of the Agreement. Nonetheless, and this ~is the second basis for our conclusion that the Employer can take such measures, it is our view that Article 27 does, indeed, provide additional supp°rt ~for the Employer's capacity to make transfers on such grounds. The obligation to create a workplace which is free from harassment must, in our view, include the'"~ight to take reasonabl~ steps to reduce or eliminate the negative p~ychological aftermath that may flow from such incidents. No d~ubt~' in ~termining whethe~ ~' transfer in a particular situation of a supervisory employee'is~a reaso~abl~ step to take, ~it would be ~PP~opri~e to c~nsi~er~'~hethe~ ot~er 1-ess disruptive measures should reasonably have been taken. Against this background, we have come to the conclusion that the Employer'~ decision 'in the ~resent case was, indeed, a reasonable one. The isolated nature of the facility in which.the Griever was located, the serious nature of the incident and the resulting anxiety of Ms. Swarts led the Employer to r~asonably come to the Conclusion - a conclusion reached, as we have noted, at the urging, of the Union - that it would be inappropriate to require Ms. Swarts to continue working under the supervision of the Griever. Having come to t~at Conclusion, it was not unreasonable .for the 21 Employer to further decide that the burden of being transferred should be borne by the Grievor as the perpe~=rator of the incident, rather than Ms. Swarts. The Union has further argued that the effecting or.this transfer amounted to the imposition of an additional disciplinary sanction. Once so characterize, d, in t'he Union's view, the imposition of this second penalty ran afoul of the principle against double jeopardy. The basic principle that one must not be penalized on two separate occasions for'one incident is supported in a number of cases. See Re: United Automobile Workers. Local 673 and De Haviland A~rcraft Ltd. (1956), 7 L.A.C. 61; ~.' International Union of Electrical Workers and J.A. Wilson Li~htin~ and Display Ltd. (1958), 8 L.A.C. 157; ire: United Electrical Workers, Local 504 and Canadian Westinghouse Co. Ltd. (1960), 10 L.A.C. 34. In our view, it is unnecessary to consider the applicability, if any, of this principle to the present situation' inasmuch as it is our view that the transfer of the Grievor did not constitute a disciplinary sanction. Mr. Smeaton indicated that the decision to make the transfer was unrelated to the exercise of punishing the Grievor for his misconduct or imposing a sanction which was meant %o correct his conduct through the institution of some kind of disciplinary penalty. Rather, the Employer's intention in effecting the transfer was to create an anxiety-free work environment for Ms. Swarts which was, in the Employer's view consistent with its obligations under Article 27 of the Collective. Agreement. We are persuaded that this is, in fact, an accurate. characterization of. the. Employer's motivation in making t~ansfer. Accordingly, it is our view that the transfer of the ~rievor does not constitute a disciPlinary sanction. The Union has further argued, in the alternative, that the transfer of the Grievor constitutes a ".demotion" and accordingly, even if the demo~i°~' is of a non-disciplinary nature, .this bOard has the jurisdiction to review the reasonableness of the' decision to make the transfer. The questio'n of whether or not the transfer ~of the Grievor 't~'~ambri~ge is a·demotion is a debatable one. The transfer was said by the Empioyer 'to be temporary in nature. The Grievor retains his current ·salary and benefits though his responsibilities~ at da-Abridge are less than those he assumed at simcoe. Though the Grievor indicated ·his suspicions that the transfer Would, in effect, become permanent, no compelling evidence on this point was led. Accordingly, it is our assumption that ~he transfer is indeed intended to be ·temporary. In any event, it is not necessary, in the present case, to determine whether the transfer is properly characterized as a "demotion" for the purposes of determining the appropriate s. cope of determining the of arbitral review, inasmuch as we have come to the conclusion, as indicated above, that the decision taken by the Employer was~ in all the circumstances, a reasonable one. Thus, even if the transfer of the. Grievor to Cambridge does constitute a non-disciplinary~ demotion, we have come to the view that the decision was a reasonable one and therefore not subject to being overturned on this grievance. For the foregoing reasons, we have come to the conclusion that the present grievance should be and therefore is hereby dismissed. Dated at Toronto this 24tl day of August ;1992 . --/~u,.,,,~.,,.,~._ ~ , ~. ' Joh~McCamus,~ Chairperson ,,I Dissent" (without written reason) S. Urbain, Member H. Roberts, Member.