FPSLREB Decisions
Decision Information
Suspension (20 days) - Harassment - Sexual harassment - grievor received a 20-day suspension for alleged harassment of a co-worker - grievor admitted, for the most part, to the conduct alleged by complainant, but argued that complainant did not complain about it - grievor also argued he had been framed - adjudicator had no difficulty accepting complainant's version of events and found that grievor's conduct constituted sexual harassment and that the suspension was warranted. Grievance denied.
Decision Content
File: 166-2-25915 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN MARCEL LAGACÉ Grievor and TREASURY BOARD (National Defence)
Employer
Before: Richard Labelle, Board Member For the Grievor: Jacques Dupont, Public Service Alliance of Canada For the Employer: Robert Lee, Counsel Heard at Montreal, Quebec, December 12, 13 and 14, 1994, and September 12, 1995.
Decision Page 1 DECISION This decision is further to the hearing of a grievance referred to arbitration by Mr. Marcel Lagacé. The grievor is disputing the employer's decision to suspend him for 20 days without pay, from January 10 to February 4, 1994, inclusive (Exhibit E-1):
(Translation) Following my inquiry into the allegations against you of December 7, 1993, I have determined, based on the evidence gathered during this inquiry, that you did indeed engage in improper conduct between the end of August 1993 and the end of October 1993.
I have therefore decided that the appropriate disciplinary action will be a suspension of 20 working days, from January 10, 1994, to February 4, 1994, inclusive. You will be forbidden access to your workplace for this entire period. Please note that you will remain assigned to storehouse 6 until further orders.
As Commander of 25 Depot, I expect that you will understand the corrective aspect of this decision and that you have a responsibility to improve such conduct. I am also informing you that should you have to appear before me for another disciplinary infraction, and should I find you guilty, I will have no alternative but to recommend to senior authorities the termination of your employment from the federal Public Service for misconduct.
Section 90 of the Public Service Staff Relations Act stipulates that you have the right to submit a grievance if you are not satisfied with this decision. You must submit it to the officer designated for receiving grievances in your section within 25 working days of receiving this letter.
A copy of this letter will be placed in your personal file. At the time of his suspension, the grievor worked as a storeman (GS-STS-03) for the Department of National Defence at Longue-Pointe, Montreal, Quebec.
The grievance statement reads as follows: (Translation) I am filing this grievance because on December 14, 1993, I received a letter signed by Colonel J.O.R. Pothier, dated December 14, 1993, informing me of my 20-day suspension effective January 10, 1994, to February 4, 1994, and this contravenes my collective agreement.
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Decision Page 2 Redress Sought I am asking that the employer delay implementation of the decision to suspend me until final resolution of this grievance, as a show of good faith; that the employer declare its decision, contained in the letter, hasty and null and void; that the employer reinstate me in my duties retroactive to the date of my suspension and reimburse me in full for all lost wages and benefits; that all documents pertaining to this grievance and to this letter of suspension be removed from my personal file and destroyed in my presence and/or that of my union representative; that I be present at all consultations, at the employer's expense. DAMAGES.
The employer's counsel called six witnesses: Captain Fabienne Bouchard, Corporal Bruce Gauley, Sergeant Robert Martel, Mr. Ronald Piché, Captain Pierre Lemelin, and Corporal G. The grievor's representative called two witnesses: Mr. Michel Poitras, and Mr. Marcel Lagacé, the grievor.
At the request of the grievor's representative, exclusion of the witnesses was granted.
The Evidence Following is the relevant evidence presented by the employer's witnesses. In early November 1993, the commander, Colonel J.O.R. Pothier, asked Captain Bouchard to conduct a summary investigation (Exhibit E-3) into the harassment complaint filed October 28, 1993, by Corporal G. of 25 Canadian Forces Supply Depot (Exhibit E-4).
Corporal G. claims she was sexually harassed at her workplace by a co-worker. Mr. Marcel Lagacé, a civilian employee, allegedly touched her in a sexual way on several occasions, made gestures having a sexual connotation towards her and humiliated her by frequently making fun of her and making contemptuous and insulting comments about her in the presence of her co-workers. The alleged sexual harassment continued, even though Corporal G. repeatedly asked Mr. Lagacé to stop these remarks and gestures, which she found unwelcome and hurtful (Exhibit E-5).
Mr. Lagacé and Corporal G. have known each other since the summer of 1993. Back then, Mr. Lagacé worked in a different location from Corporal G. In August 1993, they both started working in the same location.
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Decision Page 3 At first, they seemed to get along. They even went to lunch together twice. According to the testimony of Messrs. Gauley, Martel, Piché and Lemelin, the friendship between Mr. Lagacé and Corporal G. apparently cooled off after Corporal G. said she did not want a "fun" relationship with him, and it was after that that Mr. Lagacé started making unwelcome gestures and remarks towards Corporal G.
According to Captain Bouchard, Mr. Lagacé first harassed Corporal G. on about August 23, 1993. Captain Bouchard testified that Corporal G. had told her that when she and Mr. Lagacé started working together she was interested in him, but after awhile she lost interest.
Witnesses Gauley, Martel, Piché and Lemelin all repeated at the hearing the statements they made during the inquiry into Mr. Lagacé's harassment of Corporal G. (Exhibits E-6, E-7, E-8 and E-10).
In cross-examination, Mr. Gauley said Mr. Lagacé was always talking about sex, his sexual conquests. Corporal G. apparently told the witness she was being harassed by Mr. Lagacé and he was "bugging" her. The witness said Corporal G. cried often; this was in October. He said Mr. Lagacé had confided in him that this was the first time a woman had rejected him. The witness said he did not report these elements of harassment before November 1993 (Exhibit E-6).
In cross-examination, Mr. Martel said that at first, the relationship between Mr. Lagacé and Corporal G. was good. He went on to say that after Corporal G. filed her complaint, she came to see him. Mr. Lagacé also came to see the witness. Mr. Martel was away on course for two weeks in October 1993 and when he returned to work, he noticed that the atmosphere between the two was tense. The witness said that when Mr. Lagacé went to see him after Corporal G. filed her complaint, Mr. Lagacé told him he was the one who had grown away from her. The witness said Mr. Lagacé told him, "She's a bloody bitch for doing this to me." He said Mr. Lagacé talked about his prowess with women in the presence of others, including Corporal G. The witness said, however, that he had told no one about the sexual goings-on, even though he was the section head. He concluded by saying that back then, no one was trained in dealing with sexual harassment.
The witness Piché said he saw Mr. Lagacé hopping from leg to leg, saying, "My nerve, my nerve," making fun of the pain suffered by Corporal G. in front of her and other
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Decision Page 4 employees. One morning, during coffee, Mr. Lagacé started to pick on Corporal G., calling her a "bloody idiot." Another time, Corporal G. had a pain in her neck and Mr. Lagacé had told her it was because she had no head. Mr. Lagacé hold a grudge against her; he called her names. The witness often heard Corporal G. tell Mr. Lagacé, "Leave me alone." She cried often; she told the witness she was afraid (Exhibit E-8).
In cross-examination, the witness testified that he had told Mr. Lagacé to be careful, that Corporal G. might bring an accusation against him. He told Mr. Lagacé a number of times to leave her alone.
Witness Captain Lemelin said he was made aware of the situation after meeting with Mr. Gagné, the chief petty officer at building no. 8, who mentioned that Corporal G. had problems. He had noticed a decline in productivity; she was often away on sick leave. The witness visited the depot where Corporal G. worked every week, but she said nothing about her problems. It was only later that Mr. Gagné told the witness that Corporal G. was complaining of sexual harassment. The witness then met with Corporal G.; they met alone for a few hours.
Corporal G. told him that Mr. Lagacé: 1) had grabbed her breast at the washroom door; 2) on returning from lunch, he took her hand and placed it between his legs; 3) another time, he grabbed her breasts as she was working at the computer; 4) once, he hopped from leg to leg saying, "My nerve, my nerve." The witness said he explained the meaning of the policy on harassment to Corporal G., who mentioned witnesses: Messrs. Piché, Gauley and Martel. Captain Lemelin asked her whether these individuals could confirm the remarks she had reported to him. She said that they probably could. The witness met that same day with these same individuals to get confirmation of what had happened and put it in writing. He then met again with Corporal G. to ask her to put her comments in writing (Exhibit E-4).
On October 21, 1993, the witness met with Mr. Martel and all the other witnesses. He then informed his boss of the matter and sent him the information obtained from the
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Decision Page 5 witnesses, as well as Corporal G.'s written complaint. Mr. Lagacé received a copy of the complaint (Exhibit E-9). The witness met with Mr. Lagacé and his union representative on about November 3 or 4, 1993. He met with Captain Bouchard to relate the events to her (Exhibit E-10).
In cross-examination, the witness said that information about sexual harassment is conveyed in the routine orders (newsletter). There is no official document containing specific directives. The witness said this was the first time he had been involved in such a case.
Corporal G. testified that she has known Mr. Lagacé since the summer of 1993. For about two weeks, everything went well. About August 25, they were transferring vehicles together and Mr. Lagacé touched her thighs. The corporal said she told her supervising sergeant that she no longer wanted to work with Mr. Lagacé. She said she went to lunch at McDonald's with Mr. Lagacé that same week and he grabbed her breast. She told him, "Stop that." He took her hand and placed it on his crotch, and several times pressed his lower abdomen against her and said, "See how hard I am." Corporal G. said Mr. Lagacé asked her to sleep with him, saying it would be something terrific. She said no, she was looking for a stable relationship, not a sexual one. She said she warned Mr. Lagacé not to touch her.
Corporal G. said she did not file a complaint at the time because she thought he would eventually understand and she was not convinced his behaviour constituted sexual harassment at that point.
Corporal G. said that on about September 6, 1993, she went to the washroom. Mr. Lagacé pressed her up against the edge of the wall and tried to touch her breast. She pushed him out.
On about September 13, 1993, Mr. Lagacé laughed at her and was sarcastic towards her. From September 20 to October 3, 1993, Corporal G. was on sick leave. When she returned to work, Mr. Lagacé often made fun of her ringing ears and headaches.
The corporal testified to an incident that allegedly took place October 14, 1993, while she was seated at her computer. Mr. Lagacé came up behind her and started stroking her and caressing her shoulder downwards towards the front. The corporal said she
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Decision Page 6 turned to Mr. Lagacé and said, "Marcel Lagacé, you have no business touching me like that. You have no right." The corporal testified that she told him to stop "tripping" and that Mr. Lagacé replied, "You know what tripping is? Well, I'm not tripping. I'm on a bad trip." After that, Mr. Lagacé started to be mean towards her.
On October 14, 1993, Corporal G. asked Sergeant Martel to talk to Mr. Lagacé. He said he would. She asked him to do it in a few days so that Mr. Lagacé would be certain it was she who had said something to Sergeant Martel. The sergeant said he would speak to him on Monday, October 18, but Mr. Lagacé did not come in that day. Sergeant Martel was unable to speak to him, because he was on course on October 19 and 20, 1993.
Corporal G. testified that on October 19, Mr. Lagacé, in front of Mr. Piché, started hopping from leg to leg, one hand on his neck, saying, "My nerve, my nerve." On October 20, Mr. Lagacé did this again and she told him to stop, that if she hurt somewhere it was her problem, not his. Mr. Lagacé retorted that her problem was that her name was [first name]. "Being called [first name] is a hell of a problem."
Corporal G. testified that it was Mr. Gauley who told her Mr. Lagacé was giving her a bad reputation.
On October 21, Mr. Gagné went to see the corporal in her office and asked her if everything was alright. It is then she told him she could not stand it anymore, that Mr. Lagacé was constantly harassing her. She told him the whole story. Mr. Gagné then met with Captain Lemelin to confirm the situation and what was happening between Corporal G. and Mr. Lagacé. On October 22, the corporal met with Captain Lemelin and related to him the incidents she had reported to Sergeant Martel.
Corporal G. testified that she had been working with men (in the military) for six years and only once had had a problem with a co-worker, but the problem stopped.
Corporal G. testified that a man can be interested in a woman, but a woman may not be interested in him. She wanted a stable relationship, and Mr. Lagacé was not her type. After that, Mr. Lagacé touched her in a sexual way and she told him not to touch her. Mr. Lagacé starting laughing at her, was sarcastic and humiliated her. The situation was affecting her morale, her health, and her work. Corporal G. is a single mother with a daughter.
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Decision Page 7 In cross-examination, the corporal testified she had been in the military for six years. She came to the Longue-Pointe base in July 1992. She had worked at building no. 8 since August 15, 1993. She had seen Mr. Lagacé a few times before when she was working at building no. 9.
Corporal G. said she did not see Mr. Lagacé other than during their lunch hour. The first week the corporal and Mr. Lagacé worked together, they talked and joked with the others when they went to lunch in the canteen. She said jokes with sexual connotations were made, but she never told any because she is a woman.
Corporal G. said that the first week they worked together, there was no harassment. The second week, Mr. Lagacé was moving military trucks and asked his sergeant if the corporal could go with him. In the truck, they were separated by a distance of about two feet. Mr. Lagacé touched her thighs and she told him to stop. Mr. Lagacé asked her to go to McDonald's with him and she said, "Yes, but don't touch me." In the restaurant, Mr. Lagacé touched her and she told him to stop. In the vehicle, Mr. Lagacé took her hand forcefully and placed it on his crotch.
The corporal said she went to eat with Mr. Lagacé another time after their lunch at McDonald's, maybe a week later, on August 29. It was Corporal G. who asked Mr. Lagacé to go. They took the corporal's vehicle. They did not see each other outside of work. The corporal said they talked about their personal situation. Mr. Lagacé asked her if he could spend evenings with her at her place, but he never did.
Corporal G. said she told Mr. Gauley that after she and Mr. Lagacé went to lunch together, she did not trust him and did not want to go out with him.
Corporal G. said that after filing her complaint, she went to supper at Mr. Piché's house, but that she was not living with Mr. Piché, she had a boyfriend.
Corporal G. stated that she may have told Mr. Piché that she "got her job on the trucks because [she has] boobs."
Mr. Poitras, testifying for the grievor, said he had known Mr. Lagacé for eight years. Mr. Poitras has been second vice-president of Local 10527 of the Union of National Defence Employees for five years. He has been Mr. Lagacé's union representative since early November 1993. Public Service Staff Relations Board
Decision Page 8 Mr. Poitras said he had been involved since the start of the employer's investigation of Corporal G.'s complaint against Mr. Lagacé. Mr. Poitras was present at the meeting with the depot commander, Colonel Pothier, on December 8 or 9, 1993. The witness said Colonel Pothier had said he wanted to know more about what had happened in Corporal G.'s case. He said that Colonel Pothier, Mr. Leblanc, Mr. Lagacé, he himself, witnesses Gauley and Piché, Mr. Daniel, Corporal G. and Mr. Gagné were present at the meeting (Exhibit P-3). Mr. Poitras said some people, notably Mr. Gauley, have said it is a strange story.
Mr. Poitras testified that none of the witnesses (Messrs. Gauley, Piché and Daniel) had seen anything. He said all three witnesses said the same thing, that Corporal G. had said she got the job on the trucks "because [she has] boobs."
The witness said that Corporal G. went for supper at Mr. Piché's house. Mr. Gagné admitted he has made advances to Corporal G. The witness said that Mr. Gagné left Longue-Pointe base that summer. He was transferred because the commander was furious that he had made advances to Corporal G. The witness said Mr. Lagacé was not present at that meeting.
According to the witness Poitras, Colonel Pothier said he did not understand this case at all. The colonel had called Captain Bouchard in. According to the witness, the colonel said it was a very hard decision for him. He said, "We have no proof."
In cross-examination, the witness was asked whether, when meeting with the colonel, he had read the transcript of the meeting with Mr. Piché (Exhibit E-8). He said he did not remember. He did not remember Mr. Piché telling Colonel Pothier that Mr. Lagacé had called Corporal G. a "bloody idiot." Nor did he remember Mr. Piché telling Colonel Pothier that he had heard Corporal G. say to Mr. Lagacé, "Leave me alone, don't touch me." He did not remember Mr. Piché telling the colonel that Corporal G. cried often.
The grievor, Mr. Lagacé, has been working at Longue-Pointe military base for 12 years. He lives in the north end of Montreal with his parents.
The witness said he had never been disciplined. He has, however, had some problems with military personnel; things were cool between them. The witness said he had a problem in his place of work (building no. 8) with the petty officer, Mr. Gagné, who Public Service Staff Relations Board
Decision Page 9 did not seem pleased with Mr. Lagacé's work. Mr. Lagacé said he had already been criticized for questioning authority. He said he drives vehicles, puts them in order. He has known Corporal G. since July 1993. There was a mutual attraction. At the time, she was working at building no. 9 and their paths would cross. Corporal G. arrived at building no. 8, Mr. Lagacé's workplace, in August 1993. The witness said they got to know each other better when they started working together and that he was attracted to her.
The first time they worked together moving trucks, there were spiders in the cab. The corporal was afraid and put her hand on Mr. Lagacé's thigh and jumped over next to him. He noticed she was attracted to him. She asked him to go in her car and have lunch at McDonald's. They talked about all kinds of things, like young lovers getting to know each other, said the witness. He said that after lunch they went back to the car and in the parking lot they continued talking and started kissing, for 10 or 15 minutes. Mr. Lagacé said he stroked her breasts and she did not object. She caressed Mr. Lagacé as well. The witness said it is true he took her hand, but not forcefully. She told him to be careful because she was driving, and he stopped. The witness said they kissed before getting out of the car. They met every morning and gave each other little pecks, said the witness. They arranged to be alone where no other employees were around. He said he invited Corporal G. to lunch. This time, they went to the Kentucky Fried Chicken restaurant. She placed his hand between her legs and told him, "Marcel, you're a good kisser."
The witness said they did not see each other outside of work. He said that when they were together, she talked about problems with her child, problems with her ears, the kinds of things couples talk about.
The grievor's representative asked him whether he had seen the complaint form completed by Corporal G. He said yes, he had (Exhibit E-4).
In response to the allegations in Corporal G.'s complaint (Exhibit E-4), Mr. Lagacé said that:
(Translation) 1) In mid-August or about then, when I arrived at building 8, Mr. Marcel Lagacé told me he was interested in me, and I quote, "I'm interested in you, but you don't seem interested." I told him no, I wasn't, because I didn't want just a "screw" but a real
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Decision Page 10 relationship, which includes love, and also acceptance of my child.
He does not remember saying this, but after their meal at Kentucky Fried Chicken, he noticed that something was different. She said he only wanted her for sex. Mr. Lagacé said he is the one who ended the relationship.
(Translation) 2) About August 23. Mr. Lagacé then begged me, he even got down on his knees in front of me pleading that he wanted me.
He said it was not true that he begged her. Mr. Lagacé said it is a joke that he got down on his knees. He said that Corporal G. called him at home, but he never called her at her home. (Translation) 3) Another time, we went to do a job which consisted in moving 10 tons. He touched my thighs when we were inside the vehicle, and patted them. I told him to stop, that I didn't like that, but he continued, saying "Come on, you'll see you'd like it with me." Then I told Sergeant Martel that I didn't want to work on the vehicles any more with Mr. Lagacé.
Mr. Lagacé said that yes, he did touch her thighs when they went to move trucks. The corporal told him to stop, she did not like it, but he continued, saying, "Come on, you'll see you'd like it with me." Mr. Lagacé denied ever saying that.
(Translation) 4) In the meantime, he often said to me "Come on and feel (indicating his crotch), see how hard it is; you'll like it!" I told him to stop.
Mr. Lagacé said he may have said, "Come on and feel (indicating his crotch), see how hard it is; you'll like it." She told him to stop. The witness said that after they ended their relationship, he never said to her, "Touch me."
(Translation) 5) About Sept. 6. Once, I was going into the washroom and as I was going into the ladies' room, he was leaving the washroom. He pressed me into the wall and "fondled" my breast. He said, "Come on, let me." I pushed him out of the washroom and locked the door.
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Decision Page 11 Mr. Lagacé said this did not happen. He said that Corporal G. told him, "There's nothing there" and rubbed up against him. He did not press her up against the wall; he did not think he touched her breast.
(Translation) 6) About August 23. Once, he came with me to have lunch at McDonald's. He told me how much he wanted to "have me," not to go out with me. Which to me meant it would [not] be a stable relationship, with feelings of love and acceptance of my daughter. I again told him that what he was looking for did not interest me. On the way back to the base, he started touching my thighs and breasts. I told him bluntly to stop, as I was driving and I didn't like it. He even took my hand (forcefully) and placed it on his crotch. I told him often that I didn't want him "fondling" me. He did anyway.
Mr. Lagacé said that it was Corporal G. who invited him to McDonald's, that he took her hand, but not forcefully. Mr. Lagacé said he never "fondled" Corporal G. after she told him not to.
(Translation) 7) He often told me to "have a feel; I know you'll like it." That sleeping together would be the best thing I could do to relieve stress and, above all, that I wouldn't be sorry.
Mr. Lagacé denied this accusation. (Translation) 8) He often looked at me (my breasts) and made sounds as if to say Hmmm, that would be good.
Mr. Lagacé said that yes, he did that when things were going well, but not after. (Translation) 9) He even said to me, since I was always refusing his advances, "I want you, Christ, I want you, I want to have you." I told him he already knew what I thought.
Mr. Lagacé said yes, he may have said that when things were going well between them.
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Decision Page 12 (Translation) 10) Sometimes, when I found myself alone with him, he would come up very close, to the point of touching me, and rub against "it." I moved away, and left.
Mr. Lagacé said this happened, but she went to see him when things were going well, and he did not rub up against her.
(Translation) 11) About Sept. 13. Then, seeing that "he couldn't have me," he started making fun of me, [saying] I was stupid not to sleep with him, that it was because I was holding back, that I was afraid, that I was frustrated about men. He often directed jokes (for him they were jokes) at me. He was sarcastic and sometimes mean to me.
Mr. Lagacé said he did not make fun of Corporal G. She said all the men were at her feet. Mr. Lagacé said he told her that maybe all the men were at her feet, but not him. He did not make sarcastic jokes about her. When Mr. Lagacé referred to his nerve, he said it was the nerve in his neck. He never touched himself between his legs. Mr. Lagacé said he was joking when he talked about having sex in a refrigeration room, but it was true he had "gone out" with two girls from the base.
(Translation) 12) Sept. 20 to Oct. 3. I was on sick leave. When I returned to work, he often made fun of the ringing in my ears and my headaches. He said it was because I was too stressed out and uptight, that he would make it go away, but I didn't want him to.
Mr. Lagacé admitted he told her she was stressed out, but only in joking. (Translation) 13) Oct. 14. I was sitting at my computer, he came up behind me and started caressing me, stroking my shoulder (he was behind me), moving down towards the front. I suddenly turned to him and said, "Marcel Lagacé, you have no business touching me like that, you have no right." He went and sat down and murmured something I couldn't understand. I told him to stop "tripping," and he said to me "You know what tripping is? Well, I'm not tripping, I'm on a bad trip." After that, he started to be mean to me.
Mr. Lagacé said this was not true, that he only put his hand on Corporal G.'s shoulder. He never touched her in front.
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Decision Page 13 Mr. Lagacé said he told Corporal G., "I'm on a bad trip because of you. You're making me feel bad."
(Translation) 14) Mr. Lagacé says he is the one who spoke to Sergeant Martel after Mr. Stephen Hébert called him to say something was going on. He talked to Sergeant Martel a week before receiving the complaint.
15) Oct. 19. In front of Mr. Ronald Piché, Marcel got up and acted crazy, in a mean way, hopping from leg to leg, one hand on his neck, saying "My nerve(s), my nerve(s)." He was so mean when he did that I almost cried. But I kept control so he wouldn't see that he was getting to me so much. I told him he had no right to make fun of me, that it wasn't nice and besides, I hadn't had a headache in three weeks.
Mr. Lagacé stated he said that in fun, not to be sarcastic, and that everyone was joking around.
(Translation) 16) Oct. 19 and 20. Once again, Mr. Lagacé started with his, "Ow, ow, my nerve, my nerve," in a mean way. I told him to stop, that if I hurt somewhere, that was my problem, not his. He said my problem is that my name is [first name]. "Being called [first name] is a hell of a problem." I didn't answer, because I was still hurt and I didn't want him to see me cry. After a few seconds, he started laughing sarcastically. He sat sprawled on a chair in the office. I passed in front of him and he said, "Come on, have a feel; I'd like that." I looked at him and left. I would like to add that he did things such as I've mentioned above every day, or almost. Nasty comments and gestures as well.
Mr. Lagacé maintained he said, "Ow" only once, not twice. He may have told Corporal G. her problem was that her name was [first name]. Mr. Lagacé said he did not say, "Come on, have a feel; I'd like that."
(Translation) 17) Oct. 21. Corporal Gauley said he had witnessed some things. He is also the one who told me Mr. Lagacé was giving me a reputation as a "slut, [...], etc." and that when he talked to the other guys, he told them, "Try and have her, she looks hot and slutty...."
Mr. Lagacé swore he never said that to anyone. Public Service Staff Relations Board
Decision Page 14 (Translation) 18) Oct. 21. CPO 2 Gagné came into the office and asked if I was alright. That's when I told him I couldn't stand it any more, that Mr. Lagacé was constantly harassing me whenever he could. CPO Gagné asked me to tell him the story and said he would speak to him.
Mr. Lagacé said this case was a set-up by Mr. Gagné and Corporal G. A request to adjourn was made and a continuation granted. The hearing resumed September 12, 1995. The grievor continued his testimony. The grievor's representative asked the grievor whether he had taken courses on sexual harassment in the workplace prior to the events before me. He said no; he had not been so informed, had not received any information on sexual harassment, not even since the events of 1993.
Mr. Lagacé said he had heard the expression "has boobs..." at least three times since the start of this case. He said Coproral G. had even said in front of witnesses that the expression "has boobs" had won her case for her. (The employer's counsel opposed the admissibility of this portion of the testimony; I have allowed it subject to weighing it later.) The witness said he was present when this expression was used in Colonel Pothier's presence.
In cross-examination, the witness admitted he did not feel comfortable around certain military personnel; he still feels harassed by certain senior military personnel. He said it was Mr. Gagné who started this whole business. He said Mr. Piché had perjured himself; that in the grievor's view, the witnesses had perjured themselves.
In rebuttal evidence, Corporal G. said it was not true that she was attracted to Mr. Lagacé. She said she never placed her hand on Mr. Lagacé's thigh. She never kissed him as Mr. Lagacé said. She denied having told Mr. Lagacé, when they had lunch together at Kentucky Fried Chicken, that she could have anyone. She never said she got her job because she "has boobs." Corporal G. acknowledged that yes, she was afraid of spiders. She also said that during the first week working with Mr. Lagacé, he touched her, and that yes, he touched her after their lunch at McDonald's. She said the relationship between her
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Decision Page 15 and Mr. Lagacé, even in the first weeks after their lunch at McDonald's and Kentucky Fried Chicken, was one of tolerance. She said that yes, Mr. Lagacé had asked her out before her complaint, but she did not remember the date.
Legal Arguments The employer's counsel referred me to the letter of the 20-day suspension sent to Mr. Lagacé by the commander, Colonel Pothier (Exhibit E-1), and to the reasons for the suspension (three charges of sexual harassment of Corporal G.)(Exhibit E-2).
It comes down to a matter of credibility: whether to believe the testimony of Mr. Lagacé, or that of five witnesses, three of whom heard Mr. Lagacé's remarks to Corporal G. Was there a plot against Mr. Lagacé? The three witnesses Gauley, Piché and Martel have not perjured themselves.
The employer's counsel also referred me to paragraphs 3, 4, 5, 6, 13 and 17 of Exhibit E-4. Sexual harassment did occur. Mr. Lagacé was tarnishing the reputation of Corporal G. The witness Piché said he never heard Mr. Lagacé verbally abuse Corporal G. Mr. Piché suggested that Corporal G. file a complaint. The witnesses had no reason to plot against Mr. Lagacé. An adjudicator must take into account the attitude of the witnesses when giving evidence.
The employer cited seven cases: Bédard (Board files 166-2-20768 and 20869); Kahlon (Board file 166-2-20871); McMorrow (Board file 166-2-23967); Potvin (Board file 166-2-14871); Mourant (Board file 166-2-14877); Robichaud v. Canada (Treasury Board), (1987) 8 C.H.R.R. D/4326 (S.C.C.); and Janzen v. Platy Enterprises Ltd., (1989) 10 C.H.R.R. D/6205 (S.C.C.).
For all these reasons, I must dismiss the grievance. The grievor's representative referred to the decisions cited by the employer's counsel. The Robichaud case (supra) confirmed that the employer must prevent sexual harassment, that the employer must manage its employees. It has an obligation to educate its employees about sexual harassment.
The grievor's representative said that in the Department of National Defence there has been no training at all about sexual harassment, before or since this case. This case
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Decision Page 16 must be distinguished from the Robichaud decision. The employer has obligations; no professional medical evidence has been filed to prove that Corporal G. has had medical problems stemming from sexual harassment.
Janzen (supra) states that joking of a sexual nature goes on in the workplace between men and women. Sergeant Martel testified that there were jokes of a sexual nature at work. In Potvin (supra), the grievor used his position to demand sexual favours. He abused his authority.
In Mourant (supra), the grievor used his position as chief office supervisor to play sexual jokes.
In Kahlon (supra), the employee in question sexually assaulted the complainant. This case is different.
The Bédard decision (supra) addressed another aspect. The employee in question physically harassed another person. There is no similarity with the case before me.
The grievor's representative said I must consider the facts that have been put before me in this case. I must give Mr. Lagacé the benefit of the doubt regarding credibility. I must consider the context of the events before me, the workplace, military and civilian. It is known that for the first two weeks there were private personal relations between Corporal G. and Mr. Lagacé. Sergeant Martel testified that at first they were friendly. Mr. Lagacé has acknowledged that yes, he did certain things, with Corporal G.'s consent. After the relationship ended, he started having problems: gossip, hearsay, rumours.
The grievor's representative stated that Mr. Lagacé told me what happened during the first encounter with Corporal G. She did not deny that it happened (her hand on his thigh). Why did she agree to go to lunch with Mr. Lagacé again if she wanted to avoid such an occurrence? Mr. Lagacé did not want the same kind of relationship as the corporal did. The representative referred me to Veillette (Board file 166-2-13846).
The grievor's representative referred me to the testimony of Mr. Poitras (Exhibit P- 3). He said that the three witnesses in question did not dispute before me what was said at
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Decision Page 17 that meeting with Colonel Pothier. Perhaps the individuals in question did not tell the truth when testifying before me. A suspicion of lying hovers over their testimony. Any of the parties might have embellished their testimony, but not Mr. Lagacé. He acknowledges having said certain things; he does not deny light touching at one time. As for the washroom incident, Corporal G. and Mr. Lagacé were alone. Mr. Piché said he heard a cry, but did nothing. We cannot believe things happened as Corporal G. has claimed they did.
The grievor's representative referred me to the report of the board of inquiry headed by Captain Bouchard (Exhibit E-5), asking me to pay special attention to what occurred at the meeting with the witnesses. Why did Corporal G. not mention the second trip to Kentucky Fried Chicken? Maybe she was frustrated that Mr. Lagacé was not responding to her. The representative also referred me to pages 3, 4 and 5 of Exhibit E-6 and asked me to assess the credibility of the witnesses.
The grievor's representative referred me to page 4 of Exhibit E-7, Sergeant Martel's testimony. I must be careful of hearsay; there is a lot of hearsay. Mr. Lagacé has said that yes, he did do things to Corporal G. Mr. Lagacé does not deserve to be disciplined, he does not deserve the 20-day suspension. Mr. Lagacé has never been disciplined at work. He works in a very singular environment. Have the elements in Exhibit E-2 been proven? There was a consensual relationship between the two people in question.
The grievor's representative referred me to the meeting of the witnesses with the commander, Coloner Pothier. Earlier, Colonel Pothier had said he no longer knew what to think (Exhibit E-3).
In rebuttal, the employer's counsel made six points: 1) one does not need a course on sexual harassment to know it is improper to touch someone's breasts or legs;
2) the adjudicator must assess the credibility of the witnesses, consider the balance of probabilities, think back on the burden of proof (civil). He must ask himself which version is more likely;
3) initially, Corporal G. payed at McDonald's. Mr. Lagacé asked himself along; 4) Mr. Gagné's story concerning the undoing of trousers is untrue (Exhibit P-3); Public Service Staff Relations Board
Decision Page 18 5) Mr. Piché did nothing after hearing Corporal G. in the washroom because he had just come into the office;
6) the questions asked of the board of inquiry are important; I have the answers before me.
Reasons for Decision Harassment is prohibited in Canada under the Canadian Human Rights Act, R.S.C. 1985, c. H-6. Subsection 14(1) reads in part as follows:
14.(1) It is a discriminatory practice, (c) in matters related to employment, to harass an individual on a prohibited ground of discrimination.
Certainly, subsection 3(1) of this Act stipulates that sex-based discrimination is a prohibited ground of discrimination. Robichaud, supra, and Jantzen, supra, confirm that sexual harassment constitutes sex-based discrimination.
It must be concluded, without a doubt, that sexual harassment must not be tolerated in the workplace. In a study done in March 1993 entitled "Unwanted Sexual Attention and Sexual Harassment," the Canadian Human Rights Commission provides a list, which is not exhaustive, of possible forms of harassment. I quote:
- verbal abuse; - unwelcome remarks, jokes, innuendos or taunting about a person's body, attire, age, marital status, etc.;
- displaying of pornographic, racist, or other offensive or derogatory pictures;
- practical jokes which embarrassment;
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cause awkwardness or
Decision Page 19 - unwelcome invitations or requests, whether indirect, explicit or intimidation;
- leering or other gestures; - condescension or paternalism which undermine self- respect;
- unnecessary physical contact such as touching, patting, pinching, punching.
I have considered the evidence of all the witnesses as well as their conduct at the hearing and have no difficulty in accepting the version of events related by Corporal G. It would seem to me difficult to find a more perfect and complete example of sexual harassment. In fact, some of the actions of which the grievor is accused could constitute physical assault.
I cannot conceive, as Mr. Lagacé claims, of a plot on the part of the employees who testified. I have heard their testimony and it is not my impression that these are individuals who wish to deceive me or who would exaggerate. I have no hesitation in believing them.
There may have been a friendly relationship between Mr. Lagacé and Corporal G. initially, in the first weeks they were working together. But when Mr. Lagacé saw that Corporal G. did not want the kind of relationship he did, he should have accepted her decision and put a stop to his disgraceful and vulgar behaviour.
I accept the employer's argument that despite there being a lack of awareness about sexual harassment, the grievor should have known that his actions and remarks were unacceptable. It might prove very helpful, however, for the employer to raise such awareness if it has not already done so.
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Decision Page 20 On these grounds, I dismiss the grievor's grievance.
Richard Labelle, Board Member
OTTAWA, September 17, 1996. Certified true translation
Serge Lareau
Public Service Staff Relations Board