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HomeMy WebLinkAbout1992-3842.Anderson.94-09-16 \ -~ ~, -1\ ~m_ ONTARIO EMPLOYES DE LA COURONNE ~ CROWN EMPLOYEES DEL'ONTARlO - GRIEVANCE CpMMISSION DE 1111 SETTLEMENT REGLEMENT . .-- BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO. MSG lZ8 TELEPHONE /TELEPHONE (416) 326- 1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSlrAILE'TELECOPJE (416) 326-1396 3842/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Anderson) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE: S stewart Vice-Chairperson E Seymour Member D Montrose Member FOR THE S Ursel UNION Counsel Cornish Advocates Barristers & Solicitors FOR THE J Crawford EMPLOYER Deputy Director Legal Services Branch Ministry of Health HEARING October 14, 1993 February 23, 1994 May 20, 24 & 26, 1994 6. ,/ ~ \ ;~' DECISION In a grievance dated June 8, 1992 Ms V Anderson alleges a violation of Articles A and 27 10 of the Collective Agreement The essence of the grievance is that Ms Anderson's supervisor, Mr W Fawcett, engaged in sexual harassment The remedy sought in the grievance is a cease and desist order, compensation for losses and "any such other relief as may by requested, or as the board may see fit to order II In the course of the grievance procedure the Union took the position that Mr Fawcett's employment should be terminated Mr Fawcett was in attendance at the first day of hearing and was given status as a party in this proceeding Mr Fawcett initially indicated that he may wish to seek an adjournment in order to retain counsel to represent him, however, following a recess Mr. Fawcett advised that he would not be retaining counsel and would be representing himself The matter then proceeded on the first day of hearing and Mr Fawcett, along with the other parties, was given formal notice of subsequent hearing dates By letter dated February 15, 1994, Mr Fawcett advised the Board that he would not be participating in these proceedings Accordingly, the hearing proceeded in his absence and the evidence called or agreed to was not contradicted The Employer has accepted that Mr Fawcett engaged in sexual harassment and that there was a violation of the &. ,~ --- .------ i; 2 Collective Agreement In his letter dated February 15, 1994 Mr Fawcett disputes that the grievor was sexually harassed However, given the unrefuted evidence before us we accept that Mr Fawcett engaged in sexual harassment and that there has been a violation of the Collective Agreement The issue in this proceeding thus relates to remedy The actions taken by the Employer will be reviewed in some detail but in essence, the ultimate response has been a ten day suspension imposed on Mr Fawcett by letter dated May 3, 1993, signed by Mr R Armstrong, Regional Manager. It is the position of the Union that the response of the Employer is not sufficient to remedy the violation and requests additional relief, including the termination of Mr Fawcett's employment Ms Crawford advised that the Employer accepts the findings of an investigator contained in a report dated March 1, 1993 These findings are best understood in the context of Ms Anderson's evidence At all relevant times Ms Anderson was employed as a supervisor, a bargaining unit position, at the Georgian Central Ambulance Communications Centre (Georgian CACC) She has held that position since 1988 Prior to her appointment to that position she worked as a dispatcher for three years at Georgian CACC Ms Anderson commenced working as a dispatcher in sioux Lookout in 1977 She is qualified as an Emergency Medical Care .. f - -~ ~ -- -- 'E 3 Attendant Mr Fawcett was the District Manager at all relevant times and remains in that position He is the grievor's direct supervisor Jnd the senior management person on site Ms Anderson testified that on December 4, 1990 she and Mr Fawcett drove together to Mississauga to deal with a business related matter Ms Anderson testified that when they were returning hJme Mr Fawcett made a comment about her not being "passionate in everyday work" She stated that the inference that she drew from that comment was that he was suggesting that she was pasJionate "in bed" Ms Anderson testified that she was very uncomfdrtable with that comment and made reference to Mr Fawcett's wife and that Mr Fawcett responded by saying that his I wife was lItdUChY feely" Ms. Anderson's evidence was that at . . I . thls pOlnt Mr Fawcett reached over and stroked her halr She stated that this was very upsetting to her and that she stated to Mr Fawcett that she had a husband and two children that she loved and ste would not hurt them Ms Anderson testified that Mr Fawcett then withdrew his ha,nd Ms Anderson's statement to the investigator indicated that Mr Fawcett specifically referred to her beinJ passionate "in bed" and while she indicated in her testimony tJat this specific statement was not made, she stated I that the infierence was clear She found the incident extremely upsetting At the time of this incident a 21 day hearing into .' __..m__ ~. ~ 4 allegations that Mr Fawcett had sexually harassed another employee had just concluded The hearing commenced on January I . 23, 1989 an~ the last day of hearlng was November 1, 1990 Mr Fawcett was made a party to those proceedings by order of the Board and he was represented by counsel Ms Anderson's evidence was that prior to the December I 4, 1990 incident Mr Fawcett had treated her favourably but that subsequent Jo this incident she received less favourable treatment wJich she considered to be in reprisal for her rejection oJ Mr Fawcett's advance As previously noted, the grievance is dated June 8, 1992, a consideraJle time subsequent to the events of December 4, 1990 The grievor testified that she told a colleague about the incident the next day Some time later she told her husband about the iJcident Her husband contacted the Human Rights Commission Jut the matter was not pursued there Ms Anderson testified tJat she decided to file a grievance when she was told of an incidJnt between Mr Fawcett and a summer student, hereinafter referred to as Witness E Ms Anderson contacted witness E and she testified as to what this person related to her This JVidence went in on the basis that this witness would be called tJ give evidence by the Union We were advised that \ notwithstanding efforts on the part of both the Union and the Employer thJ witness could not be located. Counsel for the ~, ~ --- '5 5 Employer agreed, however, that the statement made by Witness E to an investigltor was accepted by the Employer as an accurate statement of the events that could be relied on for the truth of its contehtb. The Employer took the same position with respect to other stLtements of employees made to the investigator These . I . matters wll~ be dealt wlth below Following receipt of the grievance Mr Armstrong requested the appointment of an investigator pursuant to Article 27 10 3 2 o~ the Collective Agreement Ms J stamp, of the human resou~ces branch of the Ministry, was appointed to investigate the complaint Mr Armstrong inquired as to whether Ms AndersJn and Mr. Fawcett should be separated in the workplace at that point and was advised by the Union that this would not be necessary The investigator interviewed a number of employees of the Georgian CACC, including Mr Armstrong and Mr Fawcett The Union requJsted that a person other than Mr Armstrong be appointed as the designee to deal with the grievance given the I ... fact that Mr Armstrong was Mr Fawcett's lmmedlate supervlsor This requeJt was complied with and Mr G Brand, Director, I Emergency Health Services Branch, was appointed as the designee to deal wiJh the grievance irior to the issuance of the investigator's report, this Board's decision relating to the allegations of sexual harassment by another employee against Mr. Fawcett was issued 6' I i; . 6 In Ministrv of Health & OPSEU (Courtenay) (October 7, 1992, Wilson) the grievance was upheld The essence of the grievance is set out at pp 65-66 as follows TJe Grievor claims that in 1984 she was the o~ject of sexual harassment by her Manager W~lliam Fawcett. An effort was made through the offices of the Regional Manager Rusk t6 resolve that situation At the time, she believed that it had been resolved H6wever, it is her position that as a r~sult of that complaint, her manager proceeded I over the next four years to harass her -, systematically with critical memorandums and documents Then in 1987 he again made art improper remark that she asserts was I further sexual harassment and that the h~rassment continued up to and even beyond the filing of the grievance He denies all of this except for an admission about a remark m~de in 1987 It is for this Board to resolve this conflict in the evidence of the parties The Board alcepted that Mr Fawcett engaged in sexual harassment of the grieJor in 1984 Ms Courtenay's evidence with respect to these matte~s and the outcome of her complaint and that of I another employee to the regional manager is summarized at pp 4-7 of the decilion as follows Il October, 1994, William Fawcett succeeded H~mbides as the Manager of Georgian CACC A~cording to the Grievor about that time I snortly after Fawcett had become the manager, a f~ll-time position for dispatcher was posted The Gtievor who was interested in competing in the cbmpetition approached Fawcett just before the b~ginning of the evening shift and asked him if she would need the First Aid certificate and the I R~dio Operator's licence to apply He replied that she would need to apply for those When she aSked him who would train her, he suggested a s~pervisor attendant at the Midland Centre who he s~id was qualified to certify According to the grievor's testimony, when she then asked whether she would be apart [sic] of a class or get it p:-ivate1y, Fawcett winked and smiled saying "I .' ~ - ----- . 7 am sure he could give you a private course " She testified that she felt stunned and asked "An accredited course?" To this Fawcett replied "Oh! he could give you a really good cohrse" and smiled again She understood that Fawcett was making some inference of a private encounter - sexual in nature - other than training for a radio operator That same evening while the Grievor was working alone on the evening shift, Fawcett buzzed at the door He came in and sat down at the dispatcher's console next to the Grievor He did not say much after the formal greetings She asked him if he wanted to seethe operation of the Centre She testified that he replied that he did not want to get that familiar with the job because he might then have to fill in for a dispatcher He stayed about two hours She tried to direct the conversation to business matters, but he would direct them to the personal He asked about her background When he told her that she had a nursing background, he said that was good, nurses had been known to be friendly and winked She understood that to have a sexual connotation He commented that he liked slim women. He told her she was worldly in some ways and young in others He did not do any work and did not go to his own office He indicated he was just going to watch her work The following evening, he came in again and again talked along the same lines A week later the Grievor discussed it with another employee She had been having similar problems The day after, when he came in at the beginning of another shift, Courtenay spoke to him [Fawcett] about the possibility of having a staff meeting on her day off He stated that if she really wanted a staff meeting they could have one back in his hotel room Although this was said flippantly or jokingly, the Grievor thought it was sexual in implication in light of her dealings with him to date and the treatment which she had already received from him He winked and smiled She spoke to two other employees, Jan wilton and Wendy Caldwell and found that they were experiencing similar problems. Jan wilton told her that she had overheard him make inappropriate comments about another employee, Le that one of the (female) employees looked "really ready to him " Jan also indicated that she thought he had brushed up against her in an inappropriate manner Wendy Caldwell was .' -! , 8 having even worse problems because Fawcett had told her she was favouring one of the ambulance attendants with extra overtime; that particular driver happened to be her boyfriend and there was the suggestion that this was a type of sexual favouritism The Grievor testified that Caldwell mentioned to her that Fawcett had grabbed her shoulder and she seemed quite angry The Grievor and Jan wilton decided to go to the Regional Manager, Fred Rusk The result was that a meeting was held in which Rusk, Fawcett, Wilton and the Grievor were present The two women confronted him with their allegations. He denied brushing up against Jan wilton He did however admit to the comment about a female employee looking ready, but said that at the time he had thought wilton was a supervisor and not just a dispatcher He denied the Grievor's accusations With respect to the hotel room comment she testified that he replied that he would not call her a liar, but she interrupted him and said that he did and he knew what was said At the end of the meeting they apologized to each other over any misunderstandings and the Grievor said that she hoped that they would still be able to work together She felt that would be the end of the matter Her apology was intended as a gesture that there were no hard feelings After the meeting, there were no more incidents for about six months Jan Wilton went on maternity leave and Wendy Caldwell left the employment of CACC. ~he Board's findings are set out at p 68 of the decision as follows, By way of findings with respect to this part of the evaluation of the evidence, I am satisfied that Fawcett did say some suggestive comments on the evening he came to sit in the console room with the Grievor The Grievor expressed the opinion as did Jan Wilton, that Fawcett actually was hoping to solicit female employees for sexual activity But in my view based on all the evidence, it is more consistent with what Wilton testified that he said about Wendy Caldwell, namely that she "looked ready" and his comment in 1987 about the "white spots" that he at least occasionally 8, i 0" 9 used sexually suggestive language for effect much the sam~ as some people tell sexual jokes The Grievor testified that he referred to nurses as friendly, that he liked slim women and that she seemed worldly in some ways and young in others On the balance, I accept that he did make some sort of comments of this nature However, I am not sure that the reference to using a hotel room for a meeting or a course with Laurin were made as sexual comments since they could equally have been neutral in meaning I think the Grievor could have misunderstood what was being said and I am prepared to give Fawcett, the benefit of the doubt on this point But. if they were made in that sense, they would be of the same genre as the comments made in the console room I point out at this juncture, that at that time, Fawcett did not know the Grievor He had no specific grounds for knowing that she would personally take extreme exception to any suggestive or lewd language: or connotations The significance of that will be discussed below It goes almost without saying that there are some people who would not taRe exception or be upset by such comments, even when coming from a direct supervisor On th.e other hand, it is at the least inappropriate for a supervisor to do so under such circumstances The problem, however, appeared to be resolved at the time as a result of the complaints made to Rusk The Board rejected the Union's contention that following Ms Courtenay's complaint she was retaliated against by being subjected to critical memoranda and documents, however it accepted that there was a further incident of harassment in 1987 Ms. Courtenay's evidence about that incident is summarized at p 17 of the decision as follows In November, 1987, an incident occurred between Fawcett and the Grievorwhich is of great significance in this grievance The Grievor was on duty at the console with Diane She was discussing her recent visit to Florida and Diane mentioned that she had a nice tan, to which the Grievor replied that it was beginning to fade The Grievor testified that Fawcett who was in the .. -~-_..- t, I -.- - , 10 room at the time then said "It isn't the tanned parts that we are interested in but the untanned parts that we're interested in" and then winked No one else said anything and he left The Grievor considered it an inappropriate comment about her body, that it was invasive and insulting She thought that he was trying to get one on her, show that he can do what he wants and there was nothing she could do about it. The decision indicates at p. 52 that Mr Fawcett acknowledged making the statement lilt isn't the tan, it is the white spots that count The decision goes on to summarize his evidence as follows. At the hearing he denied making the comment to embarrass the Grievor He never heard anything from the Grievor about it He claimed it was an expression he had picked up from his Aunt Mary who would say it when he came back from vacationing in Bermuda He never made any comments about her body since then The Board's conclusions about this matter are set out at p 75 of its decision as follows. There is some difference in the testimony of the Grievor and Fawcett about what exactly was said in the tan incident The actual difference in the wording of the comments is not in itself significant the purport of the words is the same I do not have any doubts that the Grievor felt that the words were as she put it invasive and insulting It was the only actual comment of that nature since the events of 1984 Although he may not have intended very much by the words, it has to be viewed in the context of knowing that the Grievor had already made a sexual harassment complaint against him in 1984 In that context, he should have been fully alerted to the dangers or implications of lapsing into off-colour comments or language that had sexual connotations in front of the Grievor Nor is it excusable because other people might regard the comments as innocuous or even just silly After reviewing the relevant authorities the decision expresses .' -~----_..- ~ 11 the following conclusion To sum up the facts as we have found them and their implications, I find as follows the Grievor was in fact exposed to certain statements which could be characterized as off-colour or somewhat lewd statements in 1984 by Fawcett It is not clear on the evidence whether Fawcett would have been able to know in advance that such statements would be unfavourably received At the same time, as a manager he ought to have known that such behaviour was in any event inappropriate I have not found that they were as extensive as the Grievor believed but they were significant enough to lead to a sexual harassment complaint to Fawcett's own district manager The implications of his various comments were such that another employee pressed similar complaints at the same time Fortunately, at the time, the issues were resolved and that should have been the end of the matter However, in 1987, Fawcett again lapsed into an offensive statement before the Grievor This was much more serious because he was now affected with actual knowledge of the Grievor's personal sensitivity to such comments It is serious enough if you are reckless or indifferent to how the employee may respond, it is much more serious where you have the knowledge that the employee will be adversely affected by the comments. The effect was to [undo] the remedy or resolution which had been reached in 1984 and revive and exacerbate the original problem The Grievor alleges and believes that Fawcett has systematically engaged in harassment over the years since her original complaint in 1984. That allegation in my view fails it is not sufficiently demonstrated in the testimony or the documentation What has happened however is that the actual inappropriate behaviour which did occur poisoned the situation so that the Grievor became convinced that there was an even more evil intention and activity This is an example of the serious effect which inappropriate behaviour can have certain matters were traditionally considered taboo in polite society They were I suppose characterized as a question of decency or good manners In today's world, loose talk about sex, religion and race are seen as being of such a fundamental nature as to be characterized as harassment issues The subjects are considered fundamental matters in the workplace Different ~, I --~ ~ i 12 people respond in different ways; but in the workplace the views of co-workers whether coequal or subordinate must be respected The problem would be similar if the Grievor had been Roman Catholic and her manager had made jokes in front of her abut the mass or the Pope, or if she had been a member of a different race from that of her manager and her race treated humorously It is no defence that others in similar circumstances might have shrugged off such comments On the law it is absolutely clear an employee is entitled to a proper working environment, free from sexual, religious or racial harassment The essence of the Board's remedial order is contained at p 85 of the decision, as follows The Grievor is entitled to a declaration that sexual harassment to the extent found by this Board did occur I however do not think that it would be appropriate to direct the Employer to transfer William Fawcett The findings against him are not anywhere near as serious as the allegations made against him Such an order would only be justified if there was no hope of remedying the situation without such an order I do not believe that the facts disclose such a situation The Employer is directed to comply with the Collective Agreement as provided in Article 27 and to take whatever steps are necessary to maintain a work environment free from sexual harassment In particular, it is so directed with respect to William Fawcett['s] behaviour towards the Grievor. I personally believe that he will comply. it is a matter of exercising self restraint and refraining from inappropriate comments such as we have found he made in the past Mr Armstrong testified that after receivihgand reviewing this decision he determined that it was appropriate to write a non-disciplinary letter of counselling to Mr Fawcett The letter is dated December 9, 1992, the text of which reads as follows I have reviewed the decision of the Grievance .' ,."- t 13 Settlement Board Case 912/88 regarding your alleged violation of Article 27 10 of the Ontario Public Service Collective Agreement As you are already aware it was the decision of the Board that you were in fact in contravention of Article 27 10 in that you made comments of a sexual harassing nature. Though the Chairman did not feel that the comments were significant enough to warrant your transfer he did specifically direct the employer to comply with Article 27 and directed you to refrain from making any inappropriate comments in the future Therefore, you are hereby directed by this non-disciplinary letter of counselling to comply with the Collective Agreement in general, and Article 27 specifically Should further incidents of this nature occur in the future you will be subject to disciplinary action up to and including dismissal The investigator's report is dated March 1, 1993 and her conclusions are set out in summary form as follows Allegation #1 The grievor alleges that she was sexually harassed by the supervisor on December 4, 1990 when he made comments about how passionate she must be and stroked her hair There were no direct witnesses to this incident I find that on the balance of probabilities and taking into consideration the grievor reported this to a colleague the next day and the credibility of the witnesses that this incident did occur as described by the grievor. Alleqation #2 * the change in her schedule from permanent days to rotating shift without prior notification or consultation despite the fact that the supervisor encouraged her to apply for permanent days to accommodate her following return from maternity leave; The grievor alleges that her repudiation of what she B' -------- -- --- I ~ 14 characterizes as a sexual advance on December 4, 1990 led to a change in her schedule from permanent days to rotation shift. I find the grievors schedule was changed from permanent days to rotation shortly following the December 4, 1990 incident and as there were no sound business reasons put forward that would explain that change, that on a balance of probabilities there was retaliation against the grievor related to the December 4, 1990 incident Alleqation #3 * prior to December 4, 1990 the supervisor had told to [sic] the grievor that she was the administrative supervisor and that he wanted to make an assistant manager position for her, whereas after December 4, 1990 these conversations ceased, I find that there was no position at Georgian CACC for an assistant manager and that the grievor could not have advanced into such a position I do find that on the balance of probabilities that the supervisor ceased discussions with the grievor regarding the position of assistant manager as a likely career opportunity for the grievor and this was most likely related to the December 4, 1990 incident. Alleqation #4 * prior to December 4, 1990, the supervisor had told to the grievor that she was his favourite, but following December 4, 1990, the supervisor found complaints with her work and treated her in a manner which was unacceptable to her ie when the grievor was off sick for surgery on her nose, This allegation is similar to allegation #3 and I find that on the balance of probabilities that the supervisor was less tolerant toward the grievor and criticized her work more often Allegation #5 * prior to December the supervisor acted on her suggestions but following December 4, 1990, the supervisor ignored her suggestions; Again this allegation is similar to #3 and #4 above and I find on the balance of probabilities that the supervisor did not act upon suggestions put forward by the grievor and there in no explanation put forward that would .' --- t - 15 resolve this I Alleqation #6 * the supervisor called the grievor a "bitch" three times in a supervisory meeting in Mayor June, 1991, Two witnesses have corroborated that the supervisor used the word "bitch" in this m~eting in reference to the grievor I find that the supervisor did on the balance of probabilities call the grievor a "bitch'l in Mayor June of 1991 Alleqation #7 * her performance appraisals prior to December 4, 1990 were excellent but following December 4, 1990 although the grievor felt her performance was good to excellent but she did not get positive feedback from the supervisor, The form of the performance appraisal had changed The grievor was rated as high on the performance appraisal as was possible I have found no -evidence to support that the supervisor harassed the grievor through negative performance appraisals Alleqation #8 * the grievor stated that she believes that the supervisor has displayed a pattern of harassment involving other female staff members Two of the witnesses (Witness E and G) which the grievor named stated they were not subjected to sexual harassment by the supervisor .Two other witnesses (Witness A and D) stated that they felt they were subjected to sexual harassment by the supervisor These incidents occurred in 1984 and 1991 years ago and consequently I make no specific findings with respect to these particular allegations, I do consider the evidence of those witnesses to be similar fact evidence to that of the grievor As previously noted, the Employer accepted the truth of the statements identified as witnesses' statements, contained in the investigator's report in summary forID Witness E provided a, . . 16 the investigator with a signed statement, dated November 5, 1992 witness E, a student, had been employed by Georgian CACC on a part-time basis between June and August, 1991 She was seventeen years of age at the time The summary of witness E's statement contained in the investigator's report provides as follows During the period of time I was a student I asked Bill Fawcett to follow me in his car to Neinieke Muffler Shop I dropped off my car there and got a ride back to work with Bill Fawcett There was something going on at the beach with cameras and activity so we pulled into the parking lot at the beach, to watch what was going on and to decide if and where we were going to have lunch I don't remember how the conversation started I but Mr. Fawcett said something like "So you're interested in older men. You should pick and choose You're very pretty" He brushed my I hair from my cheek I responded by suggesting that it was time to get back I felt uncomfortable but I did not feel sexually threatened or that I was being hit upon The reason I felt uncomfortable was not because I felt sexually threatened but did not want to speak anymore of my private life As we were driving back he placed his hand on my knee for a short moment not in the way of sexual advancement but to reinforce a point I he was making in conversation This gesture did not make me feel uncomfortable in any way I There were no other incidents when Mr Fawcett I touched me He often complimented my appearance I but did not make me feel uncomfortable and I I was not offended by this in any way I appreciated his compliment The signed statement of witness D provided to the investigator states as follows . -~ ~ . 17 I am employed as a Radio Operator with the Emergency Health Services at the Ministry of Health I formerly worked at Georgian CACC where Mr Bill Fawcett was the manager I was the successful candidate for a competition at Georgian CACC for a full-time classified position in approximately April of 1990 Prior to the above noted competition I called Mr Fawcett to discuss the competition with him I advised him that I would be travelling to the~ area to check out housing and schools and that I might drop in to see the C A C C centre When I visited the area I sat and chatted with Mr Fawcett in his office, for about an hour We discussed, among other things, that certain staff would be leaving Georgian CACC and there was the possibility of a supervisory position becoming vacant. Mr Fawcett asked me what I was doing later in the evening and suggested that he would come over to my motel around 9 p m The purpose of this meeting was to discus questions that would be on the competition This was suggested by Mr Fawcett My husband had accompanied me on this trip When we returned to the motel that evening, Mr Fawcett was waiting in the lobby I introduced my husband, but it was my impression that Mr. Fawcett was surprised to see him Mr Fawcett visited with myself and my husband in our hotel room for approximately 1 1/2 hours. I mentioned the competition questions several times. Mr Fawcett did not discuss the competition questions, he just put it off and said you'll be OK One of the things I remember Mr Fawcett discussing with me and my husband were the sexual harassment charges against Mr Fawcett by Trish Courtenay Mr Fawcett indicated that these were a "crock" Mr Fawcett asked my husband if he could find something to do for 3 or 4 hours the next day because he wanted to show me the Human Resources Office in Penetang and other ambulance bases in the area .' ---..-- , - .,. ~ - 18 I then called Mr Fawcett the next day, to check that everything was OK for the trip to penetang I got the impression that something was wrong Mr Fawcett's mannerisms on the phone was totally different I felt that he was cool and blunt Mr Fawcett explained that something had come up and he couldn't make the trip He told me that I could come back down to the office if I wanted to I declined to do so There was no further contact with Mr Fawcett till the interview for the competition I was successful in that competition About one month after I had been working at Georgian CACC Mr Fawcett called me at home He asked me why I didn't invite him up to my house for coffee He called once every couple of weeks for about 6 months and made the same suggestion I never invited Mr Fawcett to my home I told Mr Fawcett that I was very busy, or I didn't want to, or I just kind of laughed On several occasions he invited me to his office and again suggested that I should invite him up to my home for coffee I felt that Mr Fawcett was "coming on to me" I never felt threatened for my job even though I was on probationary status. Mr Fawcett also had a habit of calling back to the Centre shortly after he had left for the day and engaging in small talk that was not related to office work in any way I found this behaviour very unusual On another occasion Mr Fawcett called me into his office and asked me if I was going to apply for a supervisory position I can't remember his exact words but he indicated something like "If you scratch our backs we'll scratch yours" I said "fine" and walked out of the office I felt that this was a threat and a sexual invitation I felt that Mr Fawcett was insinuating that if I "came across" I would get the job I never confronted Mr Fawcett about this I wondered if I did not get the job because I was not being more "friendly" to Mr Fawcett I sat the interview for the job but it was awarded ~, -- - -_.~ . 19 to Lloyd Phillips After the competition I chose to avoid Mr Fawcett as much as possible and limited our conversations to work only There was stress related to the jOb of just having to deal with this guy (Mr Fawcett) You always wondered what he would do next I decided to transfer to Lindsay because I did not want to work with Mr Fawcett He had stopped bothering me but I saw the same pattern being repeated with other employees For example, I noticed that he was phoning [name deleted] a new employee at work after just leaving I was tired of it and I just wanted out I was not aware of sexual harassment I had not seen any material on sexual harassment I felt unknowledgeable and had never had to deal with this type of behaviour before I never reported to anyone in management The relevant portion of the statement of witness A is as follows I am employed as a Communications Operator with the Emergency Health Services at the Ministry of Health at Georgian Central Ambulance Communications Center My manager is Mr Bill Fawcett On October 9, 1984 approximately, I had my first meeting with Mr. Fawcett During this meeting Mr Fawcett noted that I was a single parent and asked me whether I had babysitting problems He asked me about who I was dating and if it caused any problems at work At the time I was dating an attendant from Barrie Mr. Fawcett then proceeded to ask me who the boss was when my friend and I are together and who gave the directions He winked at me and stated something like if I had to give him any directions then to do so I construed "when we were together" to mean when we were in bed At this point I left the office I was taken aback by his comments. I had never had an experience of this nature before I found his comments to be inappropriate and of a personal nature I didn't think that he should be allowed to ask me these types of questions I felt these cpmments were of ~, -- ,.. I 20 a sexual nature After I left I wondered if I had misinterpreted the comments or that maybe he (Fawcett) was just joking I decided to go back and see Mr Fawcett I thought that we had started on the wrong foot He continued to ask questions about my personal life I told him that I didn't think he should be saying some of the things that he had said I was concerned about my position as a employee I needed the work Shortly after this meeting Janice wilton and Patricia Courtenay approached me and asked me if Mr Fawcett had said anything out of line. I told them what had happened in the October 26, 1984 meeting The three of us had a meeting with Fred Rusk, the Regional Manager of Region #3 He asked us to write everything that we could remember He told us that he had to tell Mr Fawcett that his comments were inappropriate I understand that Janice and Patricia had a meeting with Mr Fawcett I told Mr Rusk that I had already told Mr Fawcett that his comments were inappropriate There was never any other follow up on this or the written statement that I provided to Mr Rusk at the time To the best of my knowledge Mr Rusk retained a copy of my written statement Mr Fawcett had a habit of putting his hand on your shoulder and did this to me I never told him not to do it and I didn't think about it at the time. I didn't like it when he did this, it made me feel uncomfortable On Thursday October 11, 1984 I met with Mr Fawcett again to resolve our differences from the meeting of October 9, 1984 I needed the job because of my children Mr Fawcett made the statement "I can make you or break you" He asked me how badly I needed the job I took this statement to mean that I would probably have to do something I didn't want to do to get the job I took the statement [sic] that I might have to go to bed with him to get the job There was no other conclusion that I could have corne to I was doing a good job and there was nothing else I could do to keep the job In May of 1985, following medical problems because of a head injury I had been requested to return 8, , - - 21 my uniforms to Georgian CACC I stopped into the office to discuss the possibility of returning to work after my medical problems were resolved He said to me I told you that I would win This referred back to the statement when he said I would make you or break you He was now saying to me that he had done it This time I left the office in tears, it was not the first time I left his office in tears I decided to go back and try to talk to him one more time I said to him that I was concerned about coming back to work At this point in time he left his desk and walked behind my chair and put his hand on my shoulder and his hand started moving down the front of my chest As he was doing this he said maybe we can work something out. At this point in time I was upset with his remarks and actions I quickly stood up and hit him in the side of his face with my fist and left the office. Although, the door was partially open to his office I'm not sure if anyone may have heard the slap I never swore at him, I never got a letter of apology from him or a note made on my file about this incident He never attempted to call me about the incident again I did not report this incident to anyone As a result of this I have never been in the office of Mr. Fawcett when closed the door [sic], if we were alone He once asked me if I was ever going to close the door and I told him no After my medical problems were resolved I completed the ambulance attendant course In the first part of 1988 I put in an application for a jOb. I heard from the staff at the Center that they were short staffed. I called Mr Fawcett 3 or 4 times to see if there was any work and was always told that he didn't need anyone In August of 1988 he called me at five minutes to 9:00 in the morning and asked if I was still interested in work I went to work that same day but by this time the Center was extremely short staffed In my opinion, the only reason I was called in is because he was desperate for help I was successful in a competition in Dec of 1988 Two other people, Lloyd Phillips and Allen Kelly were hired as well The selection committee was ~ -- ------ ~ ! 22 composed of Bill Higginson, Sandra Caldwell and Bill Fawcett I was appointed to the classified staff after successfully completing my probationary period I didn't apply for a supervisor's position because that would increase my contact with Bill Fawcett When you are a supervisor you ordinarily have to work more closely with Bill in his office I have felt that my performance evaluations were accurate I was not dissatisfied with them, but Bill still acts as if there are problems In her statement, witness G referred to a situation in which she felt that Mr Fawcett "would have made a pass", if her husband had left the room, however she acknowledges that her perception may have been incorrect She does state that Some of the other staff at the centre called me "the golden girl" They thought I could do no wrong I was called this because of the way I was treated by Mr. Fawcett 'He was there if something happened or I needed help If the ambulance drivers complained, Mr Fawcett would always stick up for me I felt that Mr Fawcett's attitude towards me changed after I got pregnant I felt a coldness and the attention that was there had gone On March 22, 1993 a second stage grievance meeting was held Mr G Brand, Mr R Krakauer, Human Resources and Mr Armstrong were in attendance on behalf of management Mr Brand rendered a second stage reply dated April 8, 1993 wherein he noted that the investigation report had been reviewed The I relevant portion of his response states as follows Emergency Health Services Branch Management and the Union were in basic agreement with the findings of the report ~, ! . 23 The Union stated that it was their opinion that the respondent's employment should be terminated immediately Management cited that the grievor has continued to work with the respondent without incident since the grievance was filed Further, the grievor has not suffered any losses as a result of this situation Therefore, it was management's position that the respondent should be appropriately disciplined but not have his employment terminated Management also offered to develop a training plan for all managers in the Emergency Health Services system in regard to "Workplace Harassment and Discrimination It was suggested by management that this could be a joint initiative with OPSEU After reviewing all of the information, and the positions put forward by both parties, I find there is substance to the complaint Therefore, management will be meeting with the respondent and depending on the results of that meeting, will take appropriate action A summary of that meeting prepared by Mr Brand which was forwarded to the Union indicates that the following action would be taken without delay and on a without prejudice basis. 1 Mr Fawcett will be suspended without pay for thirty days 2 A letter will be placed on his file indicating the seriousness with which this matter is viewed and warning that a further incident will result in termination 3 A training plan will be developed and provided to Mr Fawcett to address harassment prevention and management skills development 4 A training program will be developed for all managers in the EHS system OPSEU will be invited to assist in this as a joint venture On April 8, 1993 Mr Fawcett, along with other managers ~ -----~- '!) - 24 who report to Mr. Armstrong and their administrative support staff attended a one day workshop dealing with sexual harassment issues Mr Armstrong testified that following the second stage meeting he spoke to Mr. Brand and expressed the view that such a suspension would not be in accordance with s 13 of Regulation 997 of the Public Service Act in that a hearing was not held to allow Mr Fawcett to respond to the allegations against him. The Union took issue with the validity of that view however given our ultimate conclusion this is not a matter that we need to address The result was that by letter dated April 7, 1993 Mr Brand advised Ms Anderson that the decision had been withdrawn and "will be revised in a separate communication to you" A pre-disciplinary hearing was conducted on April 23, 1993, chaired by Mr. Armstrong. Mr Fawcett was provided with an opportunity to put forward his position in relation to the conclusions of the investigator Mr Fawcett submitted a written statement which he provided to this Board on the first day of hearing Mr Fawcett essentially denied the allegations His statement includes the following remark "At no time did I have a conversation with the grievor about how passionate the grievor must be in bed nor any similar conversation I did not stroke the grievor's hair, nor was there any discussion about my wife, her husband or children". He denied treating the grievor any differently following the December 4, 1990 trip He suggested that witness A may have confusecl him with his former supervisor, ,. -- ! . ! 25 that there was no change in his treatment of witness G after she became pregnant but, rather, that he was "very patient with her given her mood swings and hostile attitude at work" during her pregnancy and that witness D was motivated by malice toward him due to his pointing out deficiencies in her work performance. He acknowledges that he did state to witness E that she was "very attractive/pretty" when she showed him pictures of her modelling sleepwear He states that "I have no recollection of ever commenting t,o witness E about an interest in older men, although she had commented something to that effect " Mr Fawcett had issued similar denials in his statement to the investigator who had provided him with the statements of the grievor and witness E He had not, however, been given an opportunity to comment on the statements of the other witnesses Mr. Armstrong testified that he did not give "much weight" to Mr. Fawcett's denials He did not accept that Mr Fawcett did not engage in sexual harassment but, rather, accepted the findings of the investigator In discussion with Mr Brand and an employee in personnel, it was determined that a ten day suspension was appropriate A longer suspension was considered to be unduly harsh Mr Armstrong referred to the loss of income associated with a ten day suspension He also referred to the fact that there had been no further incidents following the letter of counselling that he had issued following receipt of the Courtenay decision As well, he indicated that it was his ~ -.! 26 understanding that the maximum suspension that could be imposed under the Public Service Act was twenty working days He referred to Mr Fawcett's lengthy service He testified that he considered a transfer but did not choose this option because Mr Fawcett wishes to remain in the workplace In cross-examination Mr Armstrong was referred to a March, 1992 human resources directive entitled "Workplace Discrimination and Harassment prevention", and in particular, the following portion Factors to consider The following factors should be considered when deciding on appropriate disciplinary action - how serious the offence was that precipitated the discipline, - the severity of the consequences to the complainant of the harassment or discriminatory act, for example denial of a promotion, exclusion from a training program, lost work time as a result of physical or emotional trauma suffered; - whether the offender has previously committed any other violations of the directive, - the ongoing nature of the discrimination or harassment, that is, the period of time over which it occurred, - whether or not the complainant was subjected to coercion, assault, threats or reprisals, - whether the offender's conduct was premeditated or repetitive, or was a momentary and emotional incident, perhaps provoked by someone else, - if harassment, the nature of the harassment was it verbal, physical or both, - the degree of offensiveness, aggressiveness or physical contact in the harassment, ~ . ~ 27 - the frequency of the harassment, - an abuse of power, authority, or assigned responsibilities where a prohibited ground is involved, - public embarrassment or wilful or reckless damage to the complainant's status in the workplace or in the community, - taking advantage of vulnerability on the part of the complainant, for example due to personal situation, employment situation, personality, or isolated location; - wilful or reckless damage to victim's self-esteem, emotional health, or ability to function effectively at work, - length of service, - disciplinary record Mr Armstrong acknowledged that many of these factors weighed unfavourably against Mr Fawcett Mr Armstrong testified that he had determined that there would not be an assistant manager position and that the shift I schedule would be changed, which would affect Ms Anderson's I shift He testified tbat these decisions were communicated to Mr Fawcett in April, 1991, however this was subsequent to the shift change affecting the grievor Mr Armstrong's evidence is puzzling as it relates to the assistant manager position as in Mr Fawcett's written response to the allegations he indicates that a R03 position was kept open between May and October 1991 in anticipation that it might be converted to an assistant manager position. Mr Armstrong further testified that he considered that Mr Fawcett had provided a justification for the shift change However, he acknowledged that these matters did not r .?' 28 cause him to reject the findings of the report Ms Crawford advised that there was no dispute that the shift change was a reprisal by Mr Fawcett against Ms Anderson Mr Armstrong issued a letter to Mr Fawcett dated May 3 , 1993, the relevant portion of which states Based on the allegations and information before me, I have concluded that you sexually harassed the complainant and discriminated against the complainant on the basis of sex Infractions of this nature are considered to be a serious matter particularly when executed by management level staff Managers are charged with the responsibility to enforce the Ministry's policies and the Collective Agreement as well as protect employees from discrimination and harassment In considering discipline your previous record and the severity of the infractions 'were considered Based on these factors I must advise you that in accordance with section 22(2) of the Public Service Act you are being removed from employment for a period of ten (10) working days without pay This removal will commence on May 6, 1993 and you are to return to work on May 20, 1993 You have already attended a harassment and discrimination workshop on April 8, 1993 and should now be fully aware of the policies and guidelines regarding these issues as well as management's responsibilities Therefore, any further incidents of this nature may result in your immediate dismissal from the Public Service Ms Anderson testified that Mr Fawcett was allowed to take vacation in conjunction with his suspension, a matter which in her view undermined the discipline that was imposed Mr Armstrong stated that Mr Fawcett was entitled to take vacation ~---- ~ .B ~ 29 and he did not feel that it was inappropriate to allow him to do so Ms Anderson testified that subsequent to these events her working relationship with Mr Fawcett has b~en "tense" She states that she tries to avoid contact with him and does not feel comfortable being in a room where he is present She testified that she no longer follows up on her ideas because to do so would involve contact with Mr Fawcett She feels that the penalty --:f::~ imposed on Mr Fawcett was inadequate and that even a thirty day suspension would not be adequate Ms Anderson feels that given all of the events it is not appropriate for her to be required to continue to work under Mr Fawcett's supervision She expressed the view that her transfer would be inappropriate as she is not the cause of these circumstances Ms Anderson testified that her lack of insistence on a severance of the working relationship pending resolution of her grievance was because she felt that she was strong enough to deal with the situation on a temporary basis but was not an indication that the working relationship was one that continued to be viable Mr Armstrong testified that written information regarding sexual harassment has been provided to employees and there is a poster dealing with this topic in the workplace He testified that he has requested a training session on this issue for members of the bargaining unit but that this training has not ._~ ~ 'It .~. 30 been provided Mr Armstrong acknowledged that there currently exists a "difficult work environment" I was referred to the following provisions of the Collective Agreement PREAMBLE 1 The purpose of this Agreement between the Employer and the Union is to establish and maintain (a) satisfactory working conditions and terms of employment for all employees who are subject to this Agreement, (b) a proc~dure for the prompt and equitable handling of grievances and disputes ARTICLE A - NO DISCRIMINATIONI EMPLOYMENT EQUITY A.1 There shall be no discrimination 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 in section 9(1) of the ontario Human Rights Code (OHRC) SEXUAL HARASSMENT 27 10.1 All employees covered by this Agreement have a right to freedom from harassment in the work- place because of sex by his or her employer or agent of the employer or by another employee Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome 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 the employee where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome, or - ........~.., ,. '6 ~ 31 (b) a reprisal or a threat of reprisal for the rejection of a sexual 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 employee 27.10.3 1 The time limits set out in section 27 2 1 do not apply to complaints under this Article, provided that the complaint is made within a reasonable time of the conduct complained of, having regard to all the circumstances 27 10 3 2 Where, at any time either before the making of a complaint or the filing of a grievance under Article 27, the Employer establishes an investigation of the complaint, or the employee agrees to the establishment of such an investigation, pursuant to any staff relations policy or other procedure of the Employer, the time limits for the processing of the complaint or grievance under Article 27 shall be suspended until the employee is given notice in writing of the results of the investigation 27 10 3 3 Where a complaint under this Article is made against an employee's supervisor, or any person with supervisory responsibilities at a higher level over the employee, any oral complaint or written grievance which is expressed in Article 27 to be presented to the supervisor may be presented directly to the Deputy Minister, or the Deputy Minister's designee, or any person appointed by the Deputy Minister specifically to deal with complaints or grievances under this provision 27 10 4 Where it appears to the Grievance Settlement Board that an employee who is a grievor under this Article has made a complaint under the ontario Human Rights Code relating to the conduct which is the subject of the grievance, the Grievance Settlement Board may, as it sees fit, adjourn the grievance, stay the grievance, or dismiss the grievance 27 10 5 An employee who makes a complaint under this Article may be accompanied and represented by an employee representative at the time of the discussion of the complaint, as each stage of the grievance procedure, and in the course of any investigation established by the Employer ~ '. -e. 32 under any staff relations policy It is the position of the Union that the actions taken by the Employer are not sufficient to remedy the violation of the Collective Agreement It is the Union's position that we should order that Mr Fawcett's employment be terminated In the alternative it is submitted that the Board should direct that he be removed from the workplace with the Employer being left with - the discretion to determine how to achieve this with the caveat that such removal must not be a promotion It is submitted that in the event that such an order is made the Board should remain seized to monitor his actions In the further alternative it is the position of the Union that the initial decision of Mr Brand to impose a thirty day suspension must be considered to be final in terms of the penalty and one which could not be resiled from in terms of a reduced suspension The Union also seeks an award of $3000 00 to the grievor In addition, the Union requests that the Employer seek direction from the Human Rights Commission or other professional consultant to seek assistance in setting up a program to remedy what the Union contends is a poisoned work environment The Union further requests that training with respect to sexual harassment be provided to members of management responsible for dealing with this matter As well, the Union requests that members of the bargaining unit be provided with training that will address their right to be free from harassment and discrimination in the workplace, definitions of harassment ~ " ,~ 33 and discrimination, the processes to deal with complaints, definition of poisoned workplace and the steps to be taken by the Employer to remedy that situation in the event that the Board so orders It is the position of the Employer that the actions that have been taken are sufficient to remedy the acknowledged breach of the Collective Agreement Ms Crawford concurred with the Union's position that the Board has broad remedial jurisdiction but submitted in the event that it is determined that the remedy provided is inadequate the appropriate approach is to allow the Employer latitude in further fas'hioning an appropriate remedy while remaining seized of the matter In particular, Ms Crawford submitted that the focus of the Board should be remedial and not punitive Ms Ursel referred us to the provisions of the Human I I Riqhts Code and there were a number of bases upon which she I submitted that this Board has jurisdiction to interpret and apply I these provisions In partiCUlar, she referred us to Ministry of Correctional Services and OPSEU (Ross) , 945/93 (Gorsky) wherein at p 23 the decision states We conclude, as did the board in Kimmel/Leaf, that the introduction of Article A effected a significant change in that the wording of that article indicated that the parties intended to incorporate human rights concerns and the ontario Human Riqhts Code into the collective agreement. This would appear to have been a response to cases such as Aubin and Beintner However, an analysis of the provisions of the Code is unnecessary given the language of the Collective Agreement here and the -~ - --- !l '" ,~ it 34 Board's remedial authority There are some provisions of the Code that specifically address remedial issues but given our ultimate conclusions it is unnecessary to address the issue of our authority to apply the remedial provisions of the Code The jurisprudence on sexual harassment was reviewed at some length in the Courtenay decision Reference is made to the decision of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd. (1989) , 89 CLLC P 17,011 and it is appropriate to consider the situation before us in the context of the exhaustive analysis of this issue by the country's highest judicial authority At pp 78-79 the Board comments on that decision as follows The Court made an extensive examination of the literature and case law on sexual harassment in its determination that sexual harassment was a form of sexual discrimination within the meaning of the Manitoba Human Riqhts Act At page 16,072, Chief Justice Dickson wrote Emerging from those various legislative proscriptions is the notion that sexual harassment may take a variety of forms Sexual harassment is not limited to demands for sexual favours made under threats of adverse job consequences should the employee refuse to comply with the demands Victims of harassment need not demonstrate that they were not hired, were denied a promotion or were dismissed from employment as a result of their refusal to participate in sexual activity This form of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one mani- festation of sexual harassment, albeit a particularly blatant and ugly one Sexual harassment also encompasses situations in which sexual demands are foisted upon unwilling employees or in which employees must endure sexual gropings, propositions, and inappropriate comments, but (where] no tangible economic . -. " -::- 35 rewards are attached to involvement in the behaviour The Chief Justice adopted a dictum of the U S Court of Appeals for the 11th Circuit in Henson v. Dundee, 682 F 2d 897 (1982) as follows Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning as the harshest of racial epithets (89 CLLC at page 16,073) His lordship then continued' Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or I leads to adverse job-related consequences for the victims of the harassment It is, as Adjudicator Shime observed in Bell v. Lada, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being The nature of the violation here is extremely serious On the uncontradicted evidence before me it is clear that Mr Fawcett has engaged in an abuse of his authority on a number of occasions with a number of employees The continued supervisory . - ~~ 36 relationship between Mr Fawcett and MS Anderson is one in which he has authority or power over her In the particular circumstances of this case, where there has been an abuse of Mr Fawcett's power as a manager and a failure to acknowledge that abuse, it is our view that Mr Fawcett's continued supervisory responsibility in this work environment is simply untenable While, as Ms Crawford emphasized, there is no indication of any further incidents since Mr Fawcett was disciplined, this does not alter our assessment that anything short of removing him from this work environment situation is appropriate Ms Anderson, like all employees is entitled to fully develop her potential in an atmosphere that is conducive to that development The removal of artificial or unfair barriers to allow employees to reach their potential is the object of the provisions of the Collective Agreement prohibiting discrimination and sexual harassment In her current situation Ms Anderson quite understandably is reluctant to make efforts to realize her potential in the workplace Accordingly, Ms Anderson continues to bear the burden of this situation That burden must be alleviated and we agree with the Union's submission that in light of the particular circumstances of this case nothing short of Mr Fawcett's removal from his position is truly remedial We turn now to the issue of how this ought to be achieved In Courtenay, two awards dealing with the issue of remedy for sexual harassment are reviewed, Re Canada Post I ~ . ~ ~~ 37 Corporation and Canadian Union of Postal Workers, (1993) , 11 LAC (3d) 13 (Norman) and Re CUPE and Office and Professional Employees' International Union, Local 491, (1982), 4 LAC (3d) 385 (Swinton) At p. 82 these decisions are assessed as follows These decisions are somewhat ambiguous as to what the scope of authority of a board of arbitration is As a matter of policy, they both in effect state that they do not think that an arbitration board should be meting out punishment or making punitive orders against employees not subject to the collective agreement from which they derive jurisdiction As a matter of policy, I would agree that a board of arbitration should not get itself into the business of punishing non-bargaining unit employees Even in the case of discipline of bargaining unit employees, a board only reviews the discipline originally imposed [by] the employer The question of what remedies a board feels are necessary to put an end to sexual harassment is of course the real issue In that regard I have [no] doubt that this board under s 19 of the Crown Emplovees Collective Bargaining Act has extensive powers Indeed, the Divisional Court has repeatedly reminded the Grievance Settlement Board of the scope of its remedial powers, as for example in the areas of job classification and the Beresford type cases The same is certainly true in the area of sexual harassment Of course, for any order made by this board either directly against such a non-bargaining unit employee or indirectly imposed by an order directed to the employer under which that non-bargaining unit employee is effectively ordered to be transferred, the rules of natural justice must be ,complied with We have done so in this case by giving Fawcett full status The real question therefore is not what powers this board has, but what specific orders ought to be made on the facts in a case if a violation has been found We agree with the position that the appropriate focus is remedy rather than punishment However, we wish to note ~ ~ ~e 38 parenthetically that it is strikes us as extremely surprising that Mr Armstrong in effect reduced the penalty previously imposed notwithstanding his conclusion that Mr Fawcett was not being truthful and indeed, had compounded his actions by casting aspersions on others. We further note that s 13(1) of Regulation 977, which we understand is the basis of Mr Armstrong's view that a penalty of twenty days is the maximum suspension that could be imposed under the Public Service Act deals with suspensions pending investigation, which was not the situation before him. However, these observations are not the focus of our determination in this matter We also agree with the thrust of Ms Crawford's submission that as a matter of principle it is appropriate to provide the least intrusive remedy possible, provided of course, that it is sufficient to remedy the violation It is our conclusion that to direct the Employer to discharge the grievor would be inappropriate and unnecessary as the violation can be remedied more appropriately by simply directing the Employer to remove him from his supervisory position in this particular work environment The Employer may take whatever action it deems necessary in order to achieve this removal, that is a matter between the Employer and Mr Fawcett The one caveat that must be attached to this direction however, is that any action that the Employer takes must not be one that can be viewed as an obvious benefit to Mr Fawcett, such as a promotion While we . , 7 ,.e 39 have considered the Union's submission that not specifically directing the severance of Mr Fawcett's employment may result in a situation where he continues to be employed elsewhere in the Ministry and such activity on the part of Mr Fawcett may recur, this is a matter that the Employer will, if it continues Mr Fawcett's employment, no doubt take great care to avoid This matter does not compel us to conclude that an order directing his dismissal is mandated by the circumstances We are of the same view in connection with the Union's request that the Board remain seized for the purposes of monitoring Mr Fawcett's continued employment, the kind of order contemplated by s 41(2) of the Human Rights Code We are not persuaded that an order for damages is appropriate here In Re Canada Post, supra, an arbitrator ordered damages in a sexual harassment case, however in that case the arbitrator found that the employer had failed to conduct a meaningful investigation into the allegations Ms Crawford relied on a decision of the Human Rights Commission in Shaw v. Levac SupplY Ltd. 14 C H R R 36 in support of the proposition that by virtue of s 44(1) of the Code the Employer ~ is not liable for damages Ms Ursel submitted that liability could be viewed as flowing from other provisions of the Code and that in any event s 44(1) is properly viewed as a statutory minimum and the Employer's liability flows from the provisions of the Collective Agreement and our statutory obligation pursuant to s 19(1) of the Crown Employees Collective Barqaininq Act to "decide the matter" We need not address this issue Although ~ ~ ~e 40 this experience has clearly been an ordeal for Ms Anderson, in the circumstances before us we are not persuaded that we ought to order the Employer to pay damages for mental anguish to Ms Anderson with respect to the issue of training for the members of the bargaining unit, we find it startling that Mr Armstrong's request for training has gone unheeded We direct that training for the bargaining unit in the form requested by the Union be provided forthwith While we decline to specifically order at this point that an outside organization provide this assistance, we direct that management take whatever further steps are necessary to deal what we find to be a poisoned work environment with respect to the Union's request for training for senior management, this request appears to be directed at Union's dissatisfaction with the way the matter was dealt with by Mr Armstrong. We are not persuaded that a direction that senior management be provided with training is appropriate, however Mr Armstrong will obviously be involved in the training that we have I ordered be provided to the bargaining unit employees and its implications for the workplace The grievance is allowed and in accordance with the foregoing the Employer is required to take further measures to remedy the violation of the Collective Agreement We retain jurisdiction to deal with any difficulties that the parties may experience in the implementation of this decision ~ ~ " ~ " .. '~ P-. " .. 41 experience in the implementation of this decision Dated at Toronto, this 16th day of September, 1994 C)tM ~-t S L Stewart- Vice-Chairperson ,~4--- ~ E Seymour - Member :... \ ~~~..~ ~~ ~ , 0 Montrose - Member . . Ii l _ _I'""~-"""''''' 'T 'y.,.''T~ .l\ J -...., ~__~ a..", ",~"""""~""""--4 _. ' 4"_ ...4 - - -