FPSLREB Decisions

I. Individual grievance referred to adjudication

1 On May 30, 2011, the grievor ("B") filed a grievance against the Canadian Security Intelligence Service (CSIS or "the employer") contesting its decision of April 21, 2011, to suspend him without pay for three days for allegedly sexually harassing a CSIS employee on October 27, 2010. The grievor is a CSIS intelligence officer. Most of the witnesses were either CSIS intelligence officers or managers of intelligence officers. Pursuant to section 18 of the Canadian Security Intelligence Service Act, the identities of the witnesses will not be disclosed. Therefore, I will refer to them by single letters of the alphabet.

2 The grievor contested the three-day suspension imposed on him. He also challenged how the harassment investigation was conducted and the lack of procedural fairness on the part of the employer throughout the process that led to his suspension. He requested that I cancel the suspension and order the employer to hand over to him all documents relating to the suspension. He also requested that I order the employer to issue a letter of apology and to pay him financial compensation of $27 000 for the 500 hours of work (at $54.35 per hour) it took him to prepare his case. In addition, if I find that the employer acted in bad faith, the grievor requested a doubling of that amount.

II. Summary of the evidence

3 The employer called as witnesses officer C, who filed a harassment complaint against the grievor; officers D and E, who were present during the October 27, 2010 incident; F, a director general of personnel in 2010; and G, a director general who made the decision to suspend the grievor. The employer also called as a witness Detective Sergeant Craig Bridgeman of the Ontario Provincial Police, who was responsible for the firearms training session during which the incident of October 27, 2010, occurred. The employer submitted 13 documents into evidence. The grievor testified. He called as a witness officer H, who was one of the trainers in the investigator course that included the training session of October 27, 2010. He also called as a witness manager I, who conducted the investigation following the harassment complaint filed by officer C. The grievor submitted four documents into evidence, one of which contained several written exchanges, excerpts from reports, and interview notes.

4 The grievor is a seasoned intelligence officer with about 15 years of experience with the CSIS. He holds a supervisory position in the Ottawa area. In 2010, he worked as a trainer on a team that trained new investigators. He took sick leave mid-year for four to five months. He was supposed to have been assigned to class no. 50 to train new investigators in fall 2010, but since he was still on sick leave when training for that class began, another trainer was assigned.

5 On October 27, 2010, the officers in class no. 50 travelled to the Connaught shooting range in west Ottawa for a firearms training session. The session was under the general direction of Detective Sergeant Bridgeman, who explained how such sessions work as well as all the safety precautions that are taken. A classroom session on firearms was given in the morning. In the afternoon, the participants handled different firearms. They chose firearms and loaded them with the appropriate ammunition. They then shot at specific targets. Detective Sergeant Bridgeman coordinates the practical component of the training with help from other police officers. CSIS trainers are there to provide more general coaching to participants but do not act directly as firearms trainers. Detective Sergeant Bridgeman did not recall any particular incident during the training session on October 27, 2010.

6 During the firearms training, six or seven participants lined up to load the firearms they were to shoot. A table with ammunition was located at the front of the line. The participants were supposed to fill their magazines "at the table" with the appropriate ammunition under the supervision of an instructor, who was a Royal Canadian Mounted Police (RCMP) officer. For the grievor, "at the table" meant right at the table. For the other witnesses, it meant "within arm's reach." For Detective Sergeant Bridgeman, it could have been as far as 10 feet away.

7 Most of the participants filled their magazines standing either at or right beside the table. At one point, officer C stepped four to five feet away from the table, kneeled down and filled her magazine. According to her testimony, it was not the first time she had filled her magazine that way on that afternoon. According to officer D, C was the only one who did not stand at the table to load her firearm. According to E, participants stood at the table and loaded their firearms. C stated that when she kneeled down to load her firearm, the grievor apparently said to her, "[translation] C, seems you like to be on your knees." According to officer C, the grievor used "[translation] a sexual tone." When he made the comment in question, he was 10 to 15 feet from her. The RCMP officer was next to the ammunition table, midway between the grievor and officer C. Officers D and E were a dozen feet away from the grievor in the opposite direction of the ammunition table and officer C. Another officer, not called as a witness, was between officers D and E and the grievor.

8 Officer D testified that she heard the grievor tell C the following: "[translation] C likes to be on her knees." She said that he had a smirk on his face when he made that remark. Officer E testified that the grievor apparently then told C the following: "[translation] Yup, you could say that C likes to be on her knees." According to officer E, the grievor seemed to be serious and did not have any specific facial expression. Officer E was behind the grievor at that time; officer D was also behind him but slightly to the side. According to the witnesses, officer C did not react to the grievor's comment but filled her magazine and left to shoot. She was insulted and found the comment inappropriate. She then spoke to officers D and E, who felt the same way and suggested that she file a complaint against the grievor. The day after the incident, C spoke about it to her supervisor and the head of training, who happened to be the grievor's supervisor. After talking it over again with officers D and E, she filed a harassment complaint against the grievor on November 5, 2010.

9 Shortly after the October 27, 2010 incident, the head of training allegedly reproached the grievor for his comments of October 27 and apparently asked him not to speak to C. In the days that followed, but before the complaint was filed, the grievor ran into C and said to her, "[translation] I'm sorry if I offended you. I'm man enough to apologize." C simply nodded and walked away. She testified that she found the grievor's apology "[translation] a sexist comment that sounded somewhat macho."

10 The grievor did not deny making the comment in question during the firearms training. After meeting with his supervisor, he realized that his comment had been interpreted differently than he had intended, which is why he wanted to apologize. The grievor said that he twice spoke to C about her way of filling her magazine while kneeling down because she was the only one who did so and who put her magazine on the ground. The first time, he apparently said the following to her: "[translation] What are you doing on your knees when there's a table for filling the magazines?" C did not respond. She said that she did not hear the comment. A little later, according to the grievor, C returned to the ammunition table, then stepped a few feet back and filled her magazine the same way as before. The grievor told the investigator that the police officers giving the course gave him a look, implying that he do something. That is when he made the comment to C that led to the complaint. According to the grievor, the last part of the comment in question was missing. He told C, in a neutral tone, "[translation] You must like doing that on your knees — there's a table for loading ammunition into the magazines." C, D and E stated that they did not hear the second part of the comment.

11 All the witnesses had already received firearms training or had been at the shooting range. They all said that there is a lot of noise and that it is a dangerous environment. According to some witnesses, the participants and the trainers wear earmuffs to protect themselves from the noise. According to Detective Sergeant Bridgeman, who has supervised many such firearms training sessions, the participants are usually very excited by the training but are also sometimes fearful and shaken. Some feel an adrenaline rush, and their ability to use good judgment is sometimes affected. Detective Sergeant Bridgeman said that it is quite possible that the high noise level at the range could have prevented the participants from hearing what was said.

12 Some witnesses recalled that the weather conditions at the shooting range were not ideal on October 27, 2010. It was cloudy and windy. It was also muddy, and bird droppings were strewn on the ground in some places. According to the grievor, those conditions increased the risks involved in leaving a magazine or ammunition on the ground, and dirt could have gotten into the magazine. D, who is very familiar with firearms, agreed with the grievor that care must be taken to make sure that nothing gets into the magazine. However, Detective Sergeant Bridgeman, a firearms expert, felt that there was no danger and that, at worst, a magazine obstruction would simply prevent a firearm from firing.

13 C testified that she had never met the grievor before the October 27, 2010 incident, aside from seeing him three times in the weeks before then. The grievor testified that C had spoken to him in early October 2010 while he was sitting with a former supervisor. At that time, he apparently said, "[translation] So you're the young lady from city Y who studied at secondary school X." C found the comment very odd. During the investigation into the harassment complaint, the grievor said that C had told him where she was from and that he had figured out the school that she had attended because he is from the same urban community. C also testified that she was walking in the cafeteria with a colleague during a coffee break around the same time. The grievor was sitting in the cafeteria with H. Both apparently watched them for some time, and C felt uncomfortable. H adamantly denied that incident during his testimony. In addition, the investigation report into the harassment complaint does not mention the incident. The third time C ran into the grievor was when he entered the training room to ask the participants to submit some of the training-related work.

14 The grievor was not one of the trainers assigned to class no. 50, even though he held a trainer position at the CSIS. He was neither a participant nor a trainer during the firearms training session. H had offered to step in for him at the training, to which the head of training agreed. The grievor helped the RCMP officer distribute ammunition to the participants from the ammunition table. He also practised shooting.

15 The employer adduced in evidence several CSIS policies on human resources, harassment prevention, complaint resolution, misconduct and disciplinary measures. It also submitted a list of all the courses the grievor took from the start of his career with the CSIS. It includes a harassment prevention training session taken in October 2009. The employer submitted a copy of the participant's manual that was given to the grievor at that time.

16 The grievor is 52 years old and is a father of three children. He stated that he is faithful and that he has no interest in other women. He has always had good relationships with other CSIS employees. He testified that his comment on October 27, 2010 was intended in its literal sense and was not to be interpreted as a sexual remark. Never in his career has he been subject to disciplinary action, and he has an impeccable record. He stated that he is professional in his work and that he has never insulted another employee or undermined anyone's dignity. Except for the October 27, 2010 incident, the employer submitted no evidence contradicting that part of the grievor's testimony.

17 During the cross-examination of some of the employer's witnesses, and based on the documentary evidence, the grievor wanted to point out the breaches of procedural fairness that occurred during the employer's investigation into C's complaint and during the disciplinary process that followed. I will not report on that evidence, and I will explain why in the reasons for this decision.

III. Summary of the arguments

A. For the employer

18 Under paragraph 209(1)(b) of the Public Service Labour Relations Act ("the Act"), an adjudicator's jurisdiction is limited to examining the appropriateness of the imposed discipline. The adjudicator cannot decide issues of fairness in the investigation procedures or in the disciplinary process. Furthermore, during the adjudication hearing, the adjudicator examines all processes de novo, thus giving grievors the freedom to express their points of view, present their versions of events and submit relevant evidence.

19 According to the employer, the evidence in this case is straightforward. On October 27, 2010, the grievor, a CSIS trainer, took part in the firearms training session. During the session, C filled a magazine while kneeling down, and the grievor allegedly said to her, "[translation] C, seems you like being on your knees." The grievor claimed that he also added, "[translation] There's a table for loading the ammunition." His version is simply not credible. He did not call any witnesses to corroborate his version of events. On the contrary, three witnesses for the employer stated that they did not hear the second part of the sentence. Those three witnesses felt that the comment had a sexual connotation. Finally, Detective Sergeant Bridgeman testified that C's method of filling her magazine was consistent with the protocol.

20 According to the employer, the grievor's comment had a clear sexual connotation, and one such comment is enough to find that sexual harassment occurred and to impose discipline. The employer's policies on harassment and misconduct are very clear that such behaviour is unacceptable at the CSIS. The grievor was thoroughly familiar with the policies and had received training on preventing sexual harassment in the workplace.

21 An adjudicator's role is not to decide whether the discipline imposed matches what he or she would have imposed for a disciplinable offence. Instead, his or her role is to examine the measures imposed by the employer in light of the evidence and the case law and to determine whether they were unreasonable. In this case, the three-day suspension imposed by the employer was appropriate and reasonable.

22 Certain aggravating factors must be considered. First, the grievor did not acknowledge that he was at fault. Of course, he apologized, but to this day, he does not realize the seriousness of his comment. C filling her magazine while kneeling down was not a safety risk and was nothing but an excuse the grievor used to justify his inappropriate comment. In addition, the grievor was a CSIS trainer and supervisor and, as such, he had some control over the participants in the training program. Finally, the CSIS is a traditional male-dominated workplace, so it is doubly important to show respect to female employees.

23 The employer referred me to the following decisions: Maas and Turner v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 123; Pajic v. Statistical Survey Operations, 2012 PSLRB 70; Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.) (QL); Noel v. Treasury Board (Human Resources Development Canada), 2002 PSSRB 26; Morrow v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 43; Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.); Ontario English Catholic Teachers' Association v. St. Clair Catholic District School Board, [2007] O.L.A.A. No. 517 (QL); Imperial Parking Canada Corporation v. Construction and Specialized Workers' Union, [2003] B.C.C.A.A.A. No. 310 (QL); Canadian Broadcasting Corporation v. Canadian Media Guild (2002), 105 L.A.C. (4th) 1; Valspar Inc. v. United Steelworkers of America, Local 3, [2002] O.L.A.A. No. 168 (QL); Calgary (City) v. Calgary Fire Fighters Association, International Association of Fire Fighters, Local 255, [2012] A.G.A.A. No. 37 (QL); and Canada (Attorney General) v. Mowat, 2011 SCC 53.

B. For the grievor

24 The grievor first turned to the issues of procedural fairness. He claimed that he did not have the opportunity to fully respond to the allegations against him because the employer did not give him a chance to. Had the investigation been conducted properly, there would have been no hearing, and the situation would have been resolved.

25 In its decision, the employer did not account for the grievor apologizing when he realized that his comment had been misunderstood. Nor did it account for the variance in what witnesses C, D and E reported they heard.

26 The employer did not discharge its burden of proving that sexual harassment occurred. In each of the cases it referred to, the respondent had made comments or gestures with explicitly sexual connotations. That is not so in this case. In addition, the grievor's comments were made clumsily.

27 It is clear from the case law that to make a finding of sexual harassment more than one incident is required: in other words, a series of acts or comments is required. In this case, the grievor was faulted for just one incident. It cannot be concluded that harassment occurred based on a single such incident. Nor could a three-day suspension be imposed for verbal awkwardness. A verbal reprimand would have sufficed.

28 The grievor referred me to the following decisions: Bédirian v. Treasury Board (Justice Canada), 2002 PSSRB 89; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Canada (Canadian Human Rights Commission) v. Canada (Canadian Armed Forces), [1999] F.C.J. No. 757 (QL); Teeluck v. Treasury Board (Solicitor General - Correctional Service Canada), PSSRB File No. 166-02-27956 (19980820); Fillet v. Public Service Alliance of Canada, 2013 PSLRB 43; Johnson v. Treasury Board (Public Service Commission), PSSRB File No. 166-02-22252 (19930107); Samra v. Treasury Board (Indian and Northern Affairs Canada), PSSRB File No.166-02-26543 (19960911); Gale v. Treasury Board (Solicitor General Canada - Correctional Service), 2001 PSSRB 85; Azerad v. The National Film Board, PSSRB File No. 166-08-21610 (19920609); and Dutton v. British Columbia Human Rights Tribunal et al., 2001 BCSC 1256.

IV. Reasons

29 The grievor adduced evidence about alleged breaches of procedural fairness during the employer's administrative investigation and during the disciplinary process that followed it. I do not have the jurisdiction to deal with that issue. The grievor is not a unionized employee covered by a collective agreement that might oblige the employer to follow certain disciplinary rules. The only recourse offered by the Act is set out in paragraph 209(1)(b), which reads as follows:

209.   (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee's satisfaction if the grievance is related to

…

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty…

30 The lack of procedural fairness could certainly have adversely affected the grievor because the investigation's findings and the disciplinary process might have been more favourable to him had he had the full right to respond. However, as the Federal Court of Appeal stated in Tipple, those potential adverse effects were fully remedied through the hearing de novo of any matter before the adjudicator. During the hearing, the grievor had every opportunity to provide his version of events and to respond to the versions given by the employer and its witnesses. Therefore, the harm that he might have sustained was repaired.

31 The parties' positions on the merits of the grievance differ in two respects. First, the parties do not have the same understanding of what constitutes sexual harassment. For the employer, a single comment is enough to find that harassment occurred, while for the grievor, more than one such incident is required. Second, the parties do not agree on what the grievor said to C on October 27, 2010. Based on the case law and the adduced evidence, I will consider those two issues successively and then determine whether the employer was justified in imposing a three-day suspension without pay on the grievor.

32 The employer submitted in evidence its harassment prevention policy, which defines sexual harassment. It also submitted the participant's manual from the harassment training session that the grievor attended in October 2009. The two definitions are nearly identical. The definition in the employer's policy states the following:

[Translation]

…

Sexual harassment: Any conduct, comment, gesture or contact of a sexual nature that might reasonably be expected to humiliate someone or that that person might reasonably interpret as placing a condition of a sexual nature on their employment or on any opportunity for training or promotion.

…

33 It is clear from that definition that a single sexual remark is enough to find that harassment has occurred, if it is reasonable to assume that the remark could be humiliating. The second part of the definition does not apply in this case because nothing in the employer's evidence or arguments implied or referred to any sexual conditions being placed on anyone's employment or career.

34 I considered all the decisions submitted by the parties as well as the definitions of sexual harassment that they provided. The employer's definition of sexual harassment, although worded differently, is consistent with the definition found in the decisions. In Janzen, after examining the case law and literature, the Supreme Court of Canada characterized sexual harassment in the following manner on page 1284:

…

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 leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, 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.

…

35 Sexual harassment may take different forms and may vary in severity. That interpretation is clear in that a single incident may suffice and that a single unsolicited comment of a sexual nature may be considered as sexual harassment if it is degrading and if it is an affront to the person's dignity.

36 My impression of all the individuals who testified, including the grievor, is that they are reasonable people. The remark, "[translation] C seems to like being on her knees," has as much of a sexual connotation for C, who filed a harassment complaint, as it does for D and E, who witnessed the incident firsthand, for I, who led the investigation, and for G, who imposed the discipline. I agree with C and the four other witnesses that the remark in question could have a sexual connotation. Taken on its own, it is an inappropriate, unsolicited joke of a sexual nature that refers implicitly to C's sexual preferences or practices. Such an unsolicited comment simply has no place in a work environment and constitutes sexual harassment. Consequently, on that basis alone, the employer would have had every right to impose discipline, including a short suspension without pay.

37 That said, although the grievor admitted to saying something similar to what C, D and E heard, he claimed that he also added, "[translation] There's a table for loading ammunition into the magazines." He also claimed that, a little earlier, he said to her, "[translation] What are you doing on your knees when there's a table for filling the magazines?" Were I to rely on the grievor's version and his intended meaning, I would not find that harassment had occurred. Instead, I would find that the grievor expressed himself in a manner open to interpretation for some, and the apology that he offered to C could be enough to clarify the situation.

38 To determine what was actually said at the shooting range on October 27, 2010, I must examine the credibility of the witnesses and their testimonies. On the issue of credibility, adjudicators often refer to the decision made by the British Columbia Court of Appeal in Faryna v. Chorny. On page 357 of his decision, Justice O'Halloran wrote as follows:

…

… In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…

…

39 In this case, I need to be convinced on a balance of probabilities that the alleged incident indeed occurred how C, D and E described it to find that the employer was justified in imposing discipline on the grievor.

40 I believe that C in fact heard the grievor say something to her along the lines of, "[translation] C seems to like being on her knees." I also believe that D and E heard roughly the same thing. Even though what they heard is not exactly the same, it is similar enough to believe that the three witnesses heard the same thing. Moreover, the grievor did not deny making comments close to those heard by those three witnesses.

41 That said, however, on a balance of probabilities, the employer did not convince me that the grievor did not add the words he said he added at the end of the sentence in question. I believe the testimonies of C, D and E when they said that they did not hear the words, "[translation] there's a table for loading ammunition into the magazines." However, that does not prove that the grievor did not say them. His testimony is plausible, and it is entirely possible that he did add those words since, according to him, C should have been closer to the table when filling her magazine. Even though Detective Sergeant Bridgeman did not see that as a problem, it is credible that the grievor was, in good faith, concerned by the fact that C was loading her firearm rather far from the ammunition table while kneeling on the ground when field conditions were not ideal. It is also possible that, given the context, the distance between each witness and the high noise level at the shooting range, C, D and E did not hear the second part of the grievor's sentence. Given all the evidence submitted to me, I believe the grievor's version as to what he said and as to the intended meaning of his remarks.

42 The grievor's testimony was consistent, and I did not detect any contradictions. He seemed to me like someone with the utmost of integrity and with a strong sense of professionalism. Throughout the hearing, the grievor was 12 feet from me. When he cross-examined the witnesses, I had to have him repeat parts of his questions or comments at least four times and had to ask him to speak louder because his voice did not carry. Yet, I am not hard of hearing, and there was no noise in the room. Therefore, it is quite plausible that witnesses C, D and E did not hear the second part of the grievor's sentence, especially since the shooting range was very noisy.

43 I do not need to be absolutely convinced that the grievor told me the truth during the hearing and that he did not lie about adding the second part of his sentence. My role is to examine all the evidence, including witness credibility, and to determine whether the employer discharged its burden of proof, on a balance of probabilities. All the witnesses were credible, including the grievor. The grievor's version of events seems credible to me. Of course, what he said could be interpreted differently, but I believe him when he said that the comment he made on October 27, 2010, was intended to be taken in its literal sense, not interpreted as a sexual remark. Therefore, on a balance of probabilities, I conclude that the employer did not prove misconduct on the part of the grievor.

44 C testified that the grievor had apparently spoken to her shortly before October 27, 2010, when he was sitting with a former supervisor, and that he had apparently mentioned her studying at school X. It is quite plausible that the grievor reached that conclusion, as he said, because he came from the same urban community. I see nothing strange or unusual in it. C also testified that during a coffee break at around the same time, she was walking in the cafeteria with a colleague and that the grievor and H apparently watched both of them for some time. The colleague was not called as a witness. Furthermore, H denied the incident. Finally, the investigation report into the harassment complaint does not mention that incident, but it does mention the school incident.

45 Considering all the above, I find that the discipline imposed by the employer was not justified. Therefore, I rescind the three-day suspension that it imposed on the grievor. At worst, he chose his words poorly and did not think that they could be interpreted in two ways. He apologized to C, which should have been enough had C heard the grievor's entire sentence, but that did not happen. It is quite understandable that she filed a complaint in such a context.

46 To me, all the witnesses seemed honest and dedicated to the organization for which they work. How manager I conducted the investigation was certainly not perfect, and the approach used by G to impose the discipline was somewhat flawed. Given what I heard and read during the hearing, I am convinced that both acted in good faith and that they made recommendations or decisions they believed were fair and appropriate. Therefore, I am not prepared to order the payment of any financial compensation whatsoever to the grievor, except the repayment of three days' pay plus the benefits associated with lost wages. In addition, the Act does not give me the power to order the reimbursement of legal fees or, in this case, their equivalent. On that point, I refer to Mowat, in which the Supreme Court of Canada ruled that an administrative tribunal may award costs only if the enabling legislation confers that power on it. Finally, I do not believe that it is within my discretion to order anyone to apologize. Even had I such authority, I would not exercise it, because I believe that the employer and its representatives acted in good faith in this case.

47 For all of the above reasons, I make the following order:

V.Order

48 The grievance is allowed.

49 I order the employer to repay the grievor three days' pay plus associated benefits.

50 I order the employer to remove from the grievor's record any references to the three-day suspension that was imposed him.

July 2, 2013.

PSLRB Translation

Renaud Paquet,
adjudicator