Loading...
HomeMy WebLinkAbout1992-3483.Koonings&Froner.97-09-23ONliwD CROWN EMPLOYEES GRIEVANCE SElTLEMENT BOARD EMPLOY& DE LA COURONNE DE L’0N-L.~ COMMISSION RlkGLEMENT DES GRIEFS 180 OUNOAS SZQEET WEST, SUlTEtXW, TORONTO ON MSG I23 18D, RUE OUNOAS OUES7; BURGIU 800. TORONTO (OM M5G 1.78 (. ._ ,. DE TELEPHONEiT6LiPHONE : (416) 326- 1388 FACSIMlLE/T~L~COPIE : (418) 328-1398 BETWEEN BEFORE : FOR THE J. Noble GRIEVOR Counsel FOR THE EMPLOYER HEARING GSB # 3483/92, 3484/92, 3485/92, 3486/92 OLBEU # OLB449/92, OLB450/92, OLB010/93, OLB011/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OLBEU (Koonings/Froner) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer S. Stewart J. Carruthers M. Milich Vice-Chair Member Member Ontario Liquor Boards Employees' Union V. Johnston Counsel Hicks, Morley, Hamilton, Stewart;_Storie Barristers & Solicitors December 7, 8, 1995 February 1, 2, 21, 22, 23, 29, 1996 March 1, 1996 April 4, 18, 19, 26, 1996 November 28, 29, 1996 December 5, 1996 DECISION The grievors, Ms. K. Froner and Ms. T. Koonings, are casual employees of the Liquor Control Board of Ontario. Ms. Froner and Ms. Koonings have,each filed two grievances dated December 15, 1992 and two grievances dated January 13, 1993. The December 15, 1992 grievances allege a breach of Article 2.1 (b) and 32.1 of the Collective Agreement and indicate that the remedy sought is: "The provision of a poison free environment at work . . . and the immediate cessation of harassing behaviour by clerk 4". The "clerk 4" referred to in the grievance is Mr. L. ,Grant. Mr. Grant was a member of the bargaining unit at the relevant time, however he has since retired. Mr. Grant was given notice of these proceedings by the Union. However, he did not seek status in these proceedings and attended only as a witness called by the Employer. The January 13, 1993 grievances allege a violation of Article 2.1 (a) of the Collective Agreement and seek the remedy of: "The provision of a poison free work environment . . . and the cessation of harassing and intimidating behaviour by manager". The manager referred to in these grievances is Mr. J. Miles. Mr. Miles was the manager of Store 2, the "home store" of the grievors, during the period in issue. It is appropriate, at this point, to set out the relevant lb) 32.1 (. 6. :. . I. 2 Collective Agreement and statutory provisions relied on by the Union: 2.1(a) The Employers and the union agree that there will be no intimidation, discrimination, interference, restraint or coercion exercised or practised by either of them or their representatives or members because of an employee!s membership or non-membership in the Union, or because of the exercise by an employee of a right under this Agreement or under Crown Employees Bargaining Act. There shall be no discrimination or harassment practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status;. family status, or handicap, as defined by the Ontario Human Rights Code. The Employers shall continue to make every reasonable provision for the health and safety of its employees under the terms of the Occupational Health and Safety Act, during the hours of their employment. It is agreed that the employers and union shall co- operate to the fullest extent possible in the prevention of accidents and in the promotion of health and safety of its employees. Human Rishts Code R.S.O. 1990, c.Hl9 as amended: 5.(l) Employment.- Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap 1981, c.53,s.4(1); 1986, c.64, s.18(5). (2) Harassment in employment.- Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or 3 by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or handicap. 1981, c.53,s.4(2). 7*(2) Harassment because of sex in workplaces.- Every person who is an 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. Occunational Health and Safetv Act 25(2) Idem.- Without limiting the strict duty imposed by subsection (l), an employer shall,... (h) take every precaution reasonable in the circumstances for the protection of a worker; 1 There are certain backgrou'nd facts which are relevant to an understanding of the grievances. Ms. Koonings commenced her employment with the LCBO in November, 1988. Ms. Froner began working for the LCBO in October, 1989. It is apparent from the performance appraisals of the grievors that they performed their' work extremely well. Their work, over the years, was consistently rated as above average or exceptional. The events giving rise to the grievances took place at Store 2, located in downtown Toronto. This store has since been closed. Prior to Mr. Miles' arrival at the store as manager in October, 1991, Ms. Koonings and Ms. Froner had been working at the store for some time. Although employed as casuals, they worked thirty to forty hours a week. At the time of Mr. Miles' arrival, store 2 was supervised by Mr. B. Schinzel, in the position of acting manager. Mr. Schinzel had been in that (‘. I. :: 4 position since approximately the end of 1990. Upon Mr. Miles' arrival Mr. Schinzel reverted to the position of assistant manager. It is apparent from the evidence that Ms. Froner and Ms. Koonings had been given considerable authority and responsibil.ity at the store. Both had computer access at the managerial level, which allowed them to perform functions that could not otherwise have been performed by casual employees. It is apparent from the evidence that Ms. Koonings and Ms. Froner enjoyed a very congenial working relationship with Mr. Schinzel. The evidence did not suggest any difficulties between the grievors and Mr.\,Miles upon or immediately subsequent to his arrival at the store. A few months following Mr. Miles' arrival at the store in October 1991, Mr. Grant filled a vacant position of Clerk 4 at Store 2. In the store's hierarchy, this position was above the position occupied by the grievors. Mr. Grant was responsible for managing the store when Mr. Miles and Mr. Schinzel were not on duty. As well, he had responsibility for matters such as payroll and bookkeeping. Mr. Grant commenced his employment with the LCBO in 1984. Prior to coming to Store 2, Mr. Grant.had worked in a number of otherstores, most recently in a Clerk 4 position. According to Ms. Koonings' testimony, Mr. Grant demonstrated immediate antipathy towards her. Her evidence was that upon meeting her for the first time he simply looked at her hand which -( ‘: 5 she had extended to shake his and only after a pause he touched the tips of her fingers. Mr. Grant testified that he remembered first meeting Ms. Koonings and could not specifically remember shaking hands, however, his evidence indicated that he held no ill feelings toward Ms. Koonings or Ms. Froner upon meeting them. It was suggested to Mr. Grant and Mr. Mi1es.i.n cross-examination that Mr. Grant had experienced past difficulties in supervising women. Mr. Grant denied that this was the case and Mr. Miles testified that he had no knowledge-of any such difficulties. Their evidence in this regard was uncontradicted. Ms. Koonings testified that on July 16, 1992, while she was at work, Mr. Schinzel called her into his office. She testified that Mr. Schinzel showed her a note which contained point form references to matters such as cashiers talking while serving customers, too much use of the computer, people with feet on the desk and too many personal telephone calls. Ms. Koonings testified that she understood these matters to be complaints about the way she and Ms. Froner conducted themselves and in particular, she testified that she did recall having her feet on the desk one day and that she, along with,pther employees, did make personal telephone calls from the office. She further testified that as she and Ms. Froner were the main cashiers, she understood the comment in relation to cashiers to be in relation to them. As well, because she prepared a certain report known as the "stockout report" every Saturday, which required extensive 6 time on the computer, she felt that the comment regarding extensive use of the computer was directed toward her. Ms. Koonings testified that at a staff meeting on July 20, 1992, Mr. Grant read from the note that Mr. Schinzel had shown her. That note referred to those same matters. Ms. Koonings testified that subsequent to those points being raised Ms. Froner raised the issue of their security during evening shifts. It was common ground that this point was directed to Mr. Grant and indicated a concern that he was leaving them on the floor while he was night manager during evening shift. Another matter brought up by Ms. Froner at this meeting was how returns to stocks were to be dealt with, in particular, whether to be coded as a return to stock or a cash disbursement. This had been an issue between Ms. Froner and Mr. Grant. It is apparent from their evidence that Ms. Froner and Ms. Koonings felt that they were inappropriately challenged and c,riticized at this meeting. It is also apparent from the evidence that Mr. Grant felt inappropriately challenged and criticized. As is often the case in such circumstances, emotions ran high. Ms. Koonings testified that she spoke with Mr. Miles after the meeting and indicated that she felt that Mr. Grant was ' treating her with great disrespect. Ms. Koonings told Mr. Miles that she had received complaints from customers and licencees about the attitude and service provided by Mr. Grant. She 7 testified that Mr. Miles told her that he would speak to Mr. Grant. Ms. Froner also raised concerns about Mr. Grant with Mr. Miles. Mr. Miles testified that he spoke to Mr. Grant about the concerns that were raised. On July 23, 1992, an incidlent took place which marked a very dramatic decline in an already difficult working relationship in Store 2. Certain aspects of this incident were not in dispute. It was common ground that Mr. Grant had left his keys at home. Mr. Miles had left the store early that day, leaving Mr. Grant in charge. When Mr. Grant discovered that he did not have his keys in his possession, he left the store to travel the short distance home to obtain them. Ms. Froner was aware that Mr. Grant was leaving the store to get his keys and had told Ms. Koonings. In Mr. Grant's absence, Mr. D. Golding, District Manager, telephoned the store. The call was answered by Ms. Koonings.. Mr. Golding asked to speak to the manager of the shift and was advised that Mr. Grant, the manager on duty, had left the store. At this point, there is a dispute in the evidence. Mr. Golding testified that Ms. Koonings told him that Mr. Grant had left the store and that no one knew where he had gone. The information that Mr. Golding conveyed later that day to Mr. Miles, on the evidence of both Mr. Golding and Mr. Miles, is consistent with this understanding on the part of Mr. Golding. Ms. Koonings testified, however, that she did in fact advise Mr. Golding that Mr. Grant had gone to get the keys. (. c . >_.. \ 8 It is our conclusion that there was an unfortunate ' miscommunication and hence a misunderstanding between Ms. Koonings and Mr. Golding. Our view of the evidence is that it was no more nor less than a misunderstanding and we reject any suggestion that either Ms. Koonings or Mr. Golding was being untruthful about the matter. Following those events, Mr. Grant was issued a notice of intent to discipline from Mr. Miles, on the basis that he had absented himself from the shift for an extended period of time without notifying his co-workers. Mr. Grant responded with a four page typed letter. The tone of the letter can only be described as -outraged. In that letter Mr. Grant indicates that he had not slept since receiving the letter. He denied the allegation that he had left without notifying his co-workers and that he had been away for an "extended period". According to his letter, he had been away for only about 10 minutes. In his cross-examination Mr. Grant acknowledged that his absence might not ,have been precisely 10 minutes, however he maintained that the period was not extended. Mr. Grant states in this letter that he suspected Wmalice.afootU. Mr. Grant went on to refer to the staff meeting wherein he had raised a number of issues relating to matters that were critical of Ms. Froner and Ms. Koonings. He also referred to the matter in which Ms. Koonings dealt with him, which Ms. Koonings viewed as "making suggestionsI but which Mr. Grant viewed as her telling him what to do. Mr. -- ( .._ . . _ : ;.,: &. : * 9 Grant complained of a Npoisonous attitude" in the workplace. He requested an investigation into the allegation and disciplinary action against the appropriate persons. As well, he requested management's leadership in clearing the air to remove this and other barriers to his successful integration into this new work location. His letter goes on to state: "1 am a long time employee [of] the LCBO and I am aware of continued resentment of staff when they are supervised by people of colouP. Ms. Koonings testified that at around the end of July, Mr. Miles asked to speak to her in private and told her that he had received a letter that she should know about. He advised her that in a letter responding to a notice of intent to discipline Mr. Grant made accusations against her, according to Ms. Koonings, "saying I was racist against black peopleN. Ms. Koonings testified that she asked Mr. Miles if the letter stated specifically that she, by name, was "racist against black people" I and that he replied that it did. She testified that she further I asked him if he thought that it was Itslanderous" and that he replied in the affirmative. She asked Mr. Miles to see the letter but he advised her that he could 'not reveal it to her. He did tell her that Mr. Schinzel had seen the letter. Ms. Koonings testified that she spoke to Mr. Schinzel about the letter and that he confirmed that the letter alleged that she was racist. Ms. Froner was told about the letter by Ms. Koonings. Ms. Froner testified that she spoke to Mr. Miles and asked him if the letter .- i, ,: ..: c-, ‘. ,.( 10 accused her of being a racist and that Mr. Miles advised her that ,it did. There was an incident which took place on July 27, 1992, which involved Mr. Miles putting some liqueur in Ms. Koonings' tea. It is apparent that this was an ill conceived and immature practical joke. Mr. Golding imposed discipline on Mr. Miles when he became aware of this matter. Mr. Miles acknowledged the inappropriateness of this action. While this was clearly an instance of bad judgment on the part of Mr. Miles, given the timing of the event and in consideration of the theory of the events put forward by the Union in final submissions, it is our view that this incident is not connected with the other events that the Union claims constituted the aggravation and enhancement of what the grievors claim was sexual harassment at the hands of Mr. Grant. Mr. Miles prepared a letter of discipline to be issued to Mr. Grant, however the letter was never in fact issued to him. It was not until much later that Mr. Grant was formally advised that he would not be disciplined in connection with the matter. Mr. Grant's allegations and his request for an investigation were not specifically responded to. Ms. Koonings referred to a number of incidents which she viewed as inappropriate behaviour on the part of Mr. Grant. On 11 September 28, 1992 a regular staff meeting took place at which time the issue of store safety and staff security was raised. MS. Koonings testified that she mentioned that the previous night manager, Mr. G. Babb, was always present on the floor during certain hours, watching for theft and being available for any assistance that the cashiers might require. According to Ms. Koonings' evidence, Mr. Grant stood up and asked whether she expected him to be "like George Babb", she indicated that her response was that it "would be nice" and that Mr. Grant became visibly agitated. He raised his voice and said "1 am not George Babb". Mr. Grant testified that he remembered Mr. Babb's name being raised at a meeting, he thought by Ms. Koonings, and acknowledged that he could have said: J'I'rn not George Babb". Mr. Grant recalled being compared to another employee, Mr. Cummings, who, like Mr. Grant and Mr. -Babb, is black. Mr. Grant's evidence indicated that he felt that he was being stereotyped on the basis of his race. On November 14, 1992, Ms. Koonings was advised by another employee, Mr. Keith Gifford, that she was being designated as "number 1" cashier with the effect that she was to be on cash all day. This was a change from her normal duties on Saturdays when she usually carried out the stockout report. The computer codes of the grievors were changed to reflect their casual status. They were not advised of this change in advance. Mr. Miles testified that the grievors should have been advised in advance 12 of this change of codes, apparently as a matter of courtesy. , Ms. Koonings testified that on November 20, 1992, she asked to leave the store for her break. This would have resulted in Mr. Grant being alone in the store. Mr. Grant told her she could take her break but that she would have to remain in the store. Ms. Koonings left the store for her break. After returning Ms. Koonings had a customer who wanted to purchase gift certificates. Ms. Koonings required the manager's assistance for this, including certain codes. According to Ms. Koonings, Mr. Grant's reply was that codes were not required and that it was simply a matter of pressing the gift certificate key. Ms. Koonings replied that she did in fact need the codes but that Mr. Grant insisted that she did not. According to Ms. Koonings, Mr. Grant raised his voice and said "she doesn't know what she is doing, I do". Mr. Grant testified that he did not make such a statement. Ms. Koonings also gave evidence about an incident in December, 1992, where Mr. Grant was involved in counting her cash and there was a shortage of twenty dollars. The twenty dollars was discovered the next day. Ms. Koonings referred to Mr. Schinzel commenting that Mr. Grant was "playing with her cash." Mr. Schinzel was not called to give evidence and, accordingly, there is no basis for us to put any weight whatsoever on this comment. Mr. Grant testified that it was not unusual for such errors to be made. He did not specifically recall the event. - -.. 13 Ms. Froner also gave evidence about incidents where she felt that Mr. Grant acted inappropriately towards her. There was an incident where Mr. Grant was apparently of the-view that as a cashier she should not be performing return to stock functions. She described him as WyellingN and Wery angry" when he spoke to her about it. She testified that Mr. Grant would point to her rather than use her name, which she found offensive and , inappropriate. Ms. Froner testified that she spoke with Mr. Miles and that he advised him that he would "look into it". On the date of the key incident, at the end of the shift, there was a dispute between Ms. Froner and Mr. Grant as to Ms. Froner accepting a purchase and "going over" $20.00 in her cash. Ms. Froner expressed-concerns about the instructions that Mr. Grant gave her and, according to Ms. Froner's evidence he indicated to her that he "knew what he was doing and I didn't". Ms. Froner testified that in August, 1992, she went to the office to obtain a book to assist her in setting out a display and that Mr. Grant suggested that she was 11stupidV8 to need the book. Ms. Froner made no reference to the "stupidI comment in the notes she kept at the time, nor in her complaint to Mr. Miles. Mr. Grant denied that he referred to her as *lstupidWV and stated 'that in his view it was quite appropriate that Ms. Froner would have sought guidance from the book in connection with the display. Ms. Froner also gave testimony about the staff meeting in September of 1992 in which she felt that Mr. Grant was not 14 respectful and inappropriately interrupted her. Ms. Froner and Ms. Koonings gave evidence about other incidents involving Mr. Grant which they felt they were rudely and inappropriately treated. Ms. Koonings and Ms. Froner testified about Mr. Grant changing into work clothes upon arrival at work. He did so in a room at the back of the store, however, fro? certain locations it is apparent that it was possible to observe that he was changing. This was a room that other staff might have occasion to enter and Ms. Froner testified about coming upon Mr. Grant when he was changing.. Our understanding from the evidence is that this matter was not brought to the attention of Mr. Miles-, however, it was brought to the attention of Mr. Schinzel. Mr. Grant testified that he was not aware that he could be observed changing from outside of the room. He testified that no one from management brought this matter to his attention and his evidence in this regard was not contradicted. Mr. Grant testified that he felt challenged "every inch of the way @I by the grievors in connection w'ith the exercise of his managerial authority. He testified that he ultimately requested a transfer because of the atmosphere in the workplace. At the end of November, 1992, Ms. Koonings and Ms. Froner met with Mr. Miles and raised a number of concerns about Mr. . i I/.:, ,.’ 15 Grant. Mr. Miles met with Mr. Grant on December 1, 1992 and reviewed the concerns with him. The essence of Mr. Grant's response was that he felt that the grievors were questioning his judgment and authority and took issue with their version of the events in connection with a number of the matters raised. Mr. Miles met again with the grievors to discuss the matters with them further. He discouraged them from filing grievances and suggested that counter allegations might be filed by Mr. Grant. Mr. Miles ultimately suggested a meeting of all staff to discuss the issues. This approach was not acceptable to the grievors and ultimately the first set of grievances were filed. . AS noted at the outset of this decision, two grievances were~ filed subsequent to the December 15, 1992 grievances involving Mr. Grant. The essence of these latter two grievances is that the Employer failed to take appropriate steps in relation to the actions of Mr. Grant and that Mr. Miles, in particular, as a member of management, was responsible for perpetuating and contributing to a hostile working environment, engaging in intimidating and discriminatory behaviour in retaliation for the filing of the grievances. .- .- Ms. Froner gave evidence regarding a poster that was present in the workplace. The poster was designed to promote the Employee Assistance Plan and portrays a man who is obviously in distress, speaking to a counsellor. Marked on the poster is a 16 I statement "I can't take it Clyde. The part timers tell me what -to do", indicated as coming from the man in distress. The counsellor is indicated to be saying: "Join the club dummy". .Ms. Froner testified that she observed Mr. Miles look at the poster, . and laugh. Mr. Miles testified that he recalled seeing a poster, however his evidence as to his recollection was not consistent with the poster that Ms. Froner identified. There was also an incident when Mr. Miles threw a box when Ms. Froner was in the immediate vicinity. Ms. Froner testified that Mr. Miles had engaged in this kind of activity before, and it was clearthat it was a joke. She did not view it as a joke on this occasion. Mr. Miles testified that when he threw the box on a second occasion he did so in an attempt to "break-the tension". He testified that he realized that he had startled Ms. Froner and his recollection was that he then apologized to her. There was an allegation that the grievors were penalized in relation to their working hours. Given the fact that there was an increase in permanent staff and in light of the seasonal fluctuations in staff requirements we are unable to find that the grievors were treated in an untoward manner in relation to the hours of work that were offered to them. As well, there was simply no direct evidence to support the suggestion that the grievors were "black balled" from obtaining hours at other stores. 17 Evidence was also adduced about other matters, including a change in practice with payment for lunch hour. Although we accept the grievors as genuine in their perceptions that these events were manifestations of discrimination and/or retaliation, we are unable to share their views in this regard. In our assessment, the tensions in the workplace were such that any change was viewed by the grievors as such a manifestation and perhaps that is not surprising, given the apparent lack of courtesy and meaningful communication in the workplace. Mr. Miles acknowledged that matters could and should have been handled differently. He testified that he recognized that there was a failure on his part in relation to ensuring proper communication. Such communication would presumably have led to an understanding of the positions and concerns of the persons ^ involved .and, possibly, the establishment of a viable working relationship. In her submissions, Ms. Noble argued that the grievors had been subjected to sexual harassment in the form of a poisonous and offensive work environment. In this regard Ms. Noble referred us to the text Sexual Harassment in the Workplace by A.P. Aggarwal, where, at pp. 112-113 the author comments on this matter as follows: Sexual harassment behaviour in the workplace creates a hostile, intimidating and discriminating environment. Under this type of harassment, while submission to sexual conduct is not necessarily or explicitly made 18 a term of employment, nevertheless the individual is given a work environment which is intimidating, hostile and offensive. This is a situation where the work environment becomes unpleasant or unbearable to the victim because of a pattern of insults and hostility. This negative environment may result from a refusal of a sexual proposition or advance. However, it may also exist in isolation from such overt action by a supervisor or co-worker, and result from the hostility or attitude of supervisors or co-workers. No harm to benefits or tenure necessarily follows, although the worker's psychological health may be harmed and she may feel discomfort in the workplace. Courts and tribunals have also used the terms "atmosphere of discrimination" and "sexually derogatory work environ- ment" to describe a workplace.which is poisoned by sexual -harassment. The creation of an offensive or hostileS, work environment through sexual harassment can by itself constitute a violation of human rights statutes. Conse- quently, an employee subjected to such an environment need not prove additional tangible job detriment. Ms, Noble argued that, from the outset, Mr. Grant intended to dominate the women in the workplace. It was further argued that Mr. Miles came to support and assist Mr. Grant in a campaign against the grievors. It was noted that while Mr. Miles I initially issued a notice of intent to discipline Mr. Grant and subsequently drafted a letter of discipline, he did not actually impose discipline on him. Aspects of the evidence;in particular the poster incident, the restriction of the grievers' computer access and the box throwing incident were_referred to in support of this submission. The essence of the submissions advanced by Mr. Johnston on behalf of the Employer was that the evidence did not establish discrimination, harassment or undue regard for the health and - : t. .:. c ! , : ..i, .,z : 19 safety of the grievors on the part of Mr. Grant or members of management. In his submission, while certain events could and I_ should have been handled differently, this was not a case where the serious allegations that have been raised here were in fact substantiated by the evidence. - We will first address the claims of the grievors that they had been discriminated against and/or harassed on the basis of their sex by Mr. Grant. It is apparent, as previously noted, t , that the relationship between Mr. Grant and the two grievoq got off to an unfortunate start. It is also apparent from the ., ,evidence that the grievors previously enjoyed a work environment in which they were given a good deal of responsibility. It is clear that this level of responsibility was commensurate with their competence and interest in their work. Upon his arrival, Mr. Grant was at a higher level in the chain of command and thus had greater authority than the grievors to determine how the store ought to operate. It is apparent that when Mr. Grant arrived, he had certain views as to how a store ought to be run and those views included the notion that status in the hierarchy ought to determine which jobs were performed by whom. Our sense of the events is that there was a clear clash of strong personalities. This is perhaps best demonstrated by the events of the day on which Mr. Grant asked Ms. Koonings to stay in the store during her break. Ms. Koonings had no hesitation in defying that direction. Accepting Ms. Koonings' evidence about .) ? 20 what Mr. Grant said to her later that day in relation to the codes, we think his comment is more probably understood as based in anger about Ms. Koonings' failure to comply with his request to stay at the store during her break as he had requested, rather than part of a pattern of sexual harassment. There was a dispute in the evidence regarding certain events, for example, whether Mr. Grant said to Ms. Froner that she was llstupidU. Given the context, we think it unlikely that he made this specific statement. To deal with some additonal matters, we are of the view that while Mr. Grant exercised poor judgment in changing his clothes where he did, the circumstances of this case are far different from those in the decisions referred to us by Ms. Noble, which involved cases of blatant exposure in obvious attempts to intimidate and humiliate female employees. The incident with respect to Ms. Kooning's cash was, in our view, most probably grounded in an innocent error. We accept the evidence of Ms. Koonings and Ms. Froner that there were occasions on which Mr. Grant was inappropriately abrupt and rude to them. Mr. Grant appears to have-viewed any questioning of his decisions as an attack on his authority and felt the need to assert himself forcefully in those circumstances. Indeed, it is apparent that there were occasions on which he felt compelled to make decisions for the sake of establishing his authority. The manner in which Mr. Grant I’. c.,. :-. r, 21 'conducted himself in this regard clearly did not enhance- productivity or working relationships. Nevertheless, we are not of the view that Mr. Grant's actions were in any way a -. manifestation of sexual discrimination or sexual harassment. Rather, they were-manifestations of Mr. Grant's view that his position required him to assert his authority and directly manage the workplace. In our view, he subsequently felt that he had to assert himself even more strongly in this regard, because he felt that his position was under attack. Given that he was being accused of essentially abandoning his responsibilities without telling anyone that he was leaving, an accusation that he knew to be unfounded, it is not surprising that he would have felt this way. The information that the grievors received, indicating that Mr. Grant had alleged racism, exacerbated the situation from their perspective. It is readily apparent that Ms. Koonings and Ms. Froner are sensitive persons of high moral principles and it is further apparent that an allegation of racism, to which they had no real opportunity to respond, was upsetting to them in the -- extreme. '. 1- Intertwined with the issue of sexual harassment was the issue of health and safety, in relation to the view of the grievors that Mr. Grant jeopardized their safety by being absent from the floor. While we accept that this was a concern on the ‘. ( ‘r 4.; i. 22 part of the grievors, we are unable to conclude on the evidence before us, that Mr. Grant was intentionally attempting to undermine the grievors on this basis. It is apparent that this issue became somewhat of a flash point in the relationship between Mr. Grant and the grievors, with Mr. Grant viewing the concerns on the part of the grievors as an attempt to direct him - in how he performed his work. It also appears that his immediate reaction to the concerns that were raised was that he was being subjected to a racial'stereotype. It is clear that there was no such intention or stereotype on the part of the grievors. We \ .have no doubt that the grievors were sincere in their concerns. However, in light of all of the evidence on this point and considering the objective standard that exists, we are unable to conclude that there was a a failure to comply with the -Employerfs obligation to make reasonable provisions for the health and safety of the grievors. In the course of his testimony, Mr. Grant was asked whether he felt that the grievors were racist. Mr. Grant responded by saying that racist was a "strong wordN, and that he did not think that the grievors were racist. Sexual harassment also falls 1. within the category of "strong words". When it manifests itself in the workplace it is, as former Chief Justice Dickson notes at P- 33 in one of the seminal cases on this point, Janzen v. Platv enterprises Ltd. 10 C.H.R. R. D/6205 (S.C.C.), "an abuse of both economic and sexual power". We are not persuaded, on the 23 evidence before us, that Mr. Grant's actions constituted sexual harassment. There was, as previously noted, a very difficult relationship between the grievors and Mr. Grant. However, on the .-. evidence before us we are unable to conclude that the proper characterization of the events was that Mr. Grant engaged in a pattern of sexual harassment towards the grievers. The real difficulty in their relationship, in our view, was grounded in the frustration and difficulties on the part of the grievers arising from an authoritative management approach and the misunderstanding and hostility relating to Mr. Grant's view that he had been improperly.Ureportedll as being absent from.the workplace. As previously noted, the situation was further exacerbated by the accusation of racism against the grievors, an accusation which caused them considerable concern but against which they were unable to defend themselves. I With respect to the second set of grievances, essentially alleging that Mr. Miles became involved in and perpetuated sexual 1 harassment and engaged in intimidation against the grievors, again, we are unable to conclude that the claim of the grievers has been established. We do agree with Ms. Noble's submission ., 1 that Mr. Miles' sympathies ultimately came to lie with Mr. Grant. There is no doubt that Mr. Miles acted inappropriately on a number of occasions and that his actions were entirely inconsistent with his duties and responsibilities as a manager. This is particularly the case in relation to throwing the box. *’ .: c .:.. , ‘-. ,; 24 It is apparent that Mr. Miles was unable to resolve the problems an increasingly difficult work environment and became frustrated as a result. While, as he has acknowledged, and the Employer has acknowledged through counsel, matters should have been handled differently, we are unable to accept the characterization of the events urged upon us by Union counsel. We accept Ms. Froner's evidence about the poster. While the poster clearly mocking of the tensions in the workplace and in that regard was mocking of the grievors, it was also mocking of I- Mr.-Grant.. .The comments on the poster were not-directed to the grievors in relation to their sex. Rather, they were directed at _ their status as part-time employees. While Mr. Miles' failure to remove the poster immediately was most inappropriate, and it exacerbated a difficult working relationship that had been allowed to fester for some time, we are not of the view that it was a manifestation of sexual harassment or discrimination. It is abundantly clear from the evidence that the series of events which gave rise to the grievances were stressful and difficult for the grievors.. They were also difficult for Mr. Grant. Mr. Miles was in his first managerial position and was faced with a complex and difficult challenge. It is extremely unfortunate that the events of July 23, 1992 were not addressed and clarified-immediately. While it is apparent that the pre- existing work relationship between the grievors and Mr. Grant was 25 experiencing difficulties, it is clear that the July'23, 1992 incident was the catalyst for the development of an unproductive and unworkable relationship that had only negative consequences for all'persons involved. However, on ,the evidence before us we are unable to conclude that the grievors were the victims of sexual harassment, that the Employer breached its obligation to make reasonable provisions for the health and safety of the grievors, that the grievors were discriminated against or intimidated because of their decision to file a grievance or that .t a violation of the Collective Agreement has otherwise.been : ._. established. ,pccordingly, the grievances- &e-dismissed. ~- _ '-'- .. Dated at Toronto, this 23rd day of September, 1997 dj S.L. Stewart - Vice-Chair //J. Carruthers,- Member