FPSLREB Decisions
Decision Information
Termination (disciplinary) - Sexual harassment - Harassment - Burden of proof - Grievance procedure - Admissible evidence - the grievor was terminated for alleged personal and sexual harassment of a female colleague - the employer's investigating committee had determined that the complainant's allegations were established on a balance of probabilities - the grievor maintained that the investigation process was flawed in that one member of the investigation committee had received the initial complaint - the adjudicator ruled that the process was not flawed and even if it had been flawed, the hearing before him had the effect of curing any procedural irregularity - the grievor objected to the introduction of evidence pertaining to prior discipline imposed for sexual harassment of a former employee - the adjudicator allowed the introduction of the evidence subject to whatever weight he would accord it in his deliberations and ultimately ruled that the evidence of prior sexual harassment could not be used to show a pattern of behaviour on the part of the grievor - the adjudicator ruled that in a case of serious allegations and serious consequences for an employee such as this one, while the applicable standard was the balance of probabilities, clear, strong and cogent evidence was required to support the allegations - the adjudicator found for the most part that the allegations of the complainant and the denials of the grievor were equally credible - the adjudicator found that the employer did not meet the burden required - the adjudicator ordered reinstatement but provided to the employer the option to relocate the grievor upon the latter's consent. Grievance allowed. Cases cited: R. v. Oakes (1986), 26 D.L.R. (4th) 200; Continental Ins. Co. v. Dalton Cartage Co. Ltd., [1982] 1 S.C.R. 164; Re C.U.P.E. and O.P.E.I.U., Loc 491, (1982) 4 L.A.C., (3d) 385; Cherie Bell (1980), 1 C.H.R.R. d/155; Tipple v. Canada (Treasury Board) F.C.A. File No. A-66-85.
Decision Content
File: 166-2-26543 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN SATWINDER SAMRA Grievor and TREASURY BOARD (Indian and Northern Affairs Canada)
Employer
Before: Louis M. Tenace, Vice-Chairman For the Grievor: Cécile La Bissonnière, Counsel, Public Service Alliance of Canada For the Employer: André Garneau, Counsel Heard at Vancouver, British Columbia, October 31, 1995; November 1 and 2, 1995; July 8 to 10, 1996.
Decision Page 1 DECISION A brief comment is in order to explain the delay that occurred for the continuation of this hearing between November 2, 1995 and its resumption and completion in July 1996. Following the adjournment on November 2, 1995, the continuation was originally scheduled for February 13 to 16, 1996. However, counsel for the grievor was taken ill on February 12, 1996 and was unable to proceed. Consequently, the earliest convenient date for a resumption of the hearing was July 8, 1996.
The grievor, Satwinder Samra, is grieving the termination of his employment for cause, pursuant to section 11(2)(f) of The Financial Administration Act, effective the end of the working day on January 3, 1995, for allegedly personally and sexually harassing a fellow employee, Ms. Shanaaz Bhimani, during the period from February 1993 to June 1994.
Mr. Samra also alleges that the management of Indian and Northern Affairs Canada both harassed him and violated Article M-16 of the Master Agreement between Treasury Board and the Public Service Alliance of Canada. At the commencement of this hearing, however, Mr. Samra’s counsel advised me that the grievor was no longer pursuing these aspects of his grievance.
As corrective action, the grievor is seeking reinstatement with full pay and benefits in his original position as Cash Control Clerk (CR-4) and compensation for pain, suffering and mental anguish.
Both counsel made brief opening statements. Counsel for the employer explained the basis for the original harassment complaint filed against the grievor. He also noted that during the investigation, the investigating committee learned of a similar complaint filed against the grievor on September 27, 1993, by another employee, which led to the imposition of a three-day suspension without pay on the grievor.
Counsel for the grievor submitted that the grievor denied all the allegations made against him in connection with the instant grievance. She also objected to the introduction by the employer of any evidence related to the previous incident noted above.
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Decision Page 2 I permitted introduction of evidence related to the previous incident subject to a later determination of the weight to be accorded to it. I noted that it was still part of the grievor’s file as the two-year requirement for its removal contained in clause M-33.05 of the relevant collective agreement had not expired. In addition, I indicated that, as a minimum, it might also be considered as a factor relating to mitigation of the penalty imposed on the grievor.
Witnesses were excluded at the request of counsel for the grievor. Eight witnesses testified on behalf of the employer, including the complainant. Apart from the grievor, five witnesses testified on his behalf. Summary of the Evidence On September 30, 1994, Shanaaz Bhimani went to the office of Anna Marino, Regional Manager of Human Resources for the British Columbia Region, Indian and Northern Affairs Canada (INAC), to complain about the harassing behaviour of Satwinder Samra, a fellow worker. She then proceeded to describe a series of incidents which are explained in greater detail in a Statement of Particulars (Exhibits E-3 and E-4). Following is a summary of the allegations made by her:
1. In February 1993, Mr. Samra received an unsigned Valentine’s Day card from a “secret admirer”. He allegedly told fellow workers that Ms. Bhimani had sent it to him; she told him she had not sent the card to him. She was embarrassed.
2. In 1993, upon returning from a trip to Hawaii, Mr. Samra showed Ms. Bhimani photographs of oriental women and allegedly pointed out one with whom he had sexual relations and another with whom his friend, Jazz, had done the same. He is also alleged to have pointed to the breasts of one of the women in the photographs and said: “Look at her big boobs.” He then pointed to Ms. Bhimani’s breasts and said: “There is nothing in there. No wonder your husband left you.”
3. Ms. Bhimani alleged that on many occasions Mr. Samra asked her to take the day off so that they could go to her home, to a motel or elsewhere to have sexual relations. He allegedly made statements such as: “Don’t you have any
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Decision Page 3 feelings? Don’t you feel like doing it? You’re sick, you are really sick. Get a life. I am going to give it to you. Imagine you and me without clothes. What kind of things did you and your husband do? Did you ever have oral sex? You haven’t done it for so long, you wouldn’t know what to do. If you don’t start f--- --g, you are screwing up your children’s life too.”
Ms. Bhimani was separated from her husband and, according to her own testimony, most of her life centered around her work, her children and her mosque.
4. On one occasion, a male fellow worker was massaging the sore neck of one of the women and he also did the same for Ms. Bhimani. On another occasion, another fellow worker massaged Ms. Bhimani’s sore neck. She had frequent neck pain as the result of an automobile accident. On both occasions, Mr. Samra was present, as were others. According to Ms. Bhimani, he later said to her: “How can you let those white guys touch you? You are probably f-----g those two people.”
5. Mr. Samra had asked Ms. Bhimani to have another woman in the office call him. He wanted to go out with her. According to Ms. Bhimani, he said: “She is 27 years old and single. Imagine how good she would be. I could give her a good f--k.”
6. On one occasion Mr. Samra placed his hand on her thigh while she was seating at her desk.
7. One day, while she was filing material and bending forward, Mr. Samra came up behind her, touching her, and said: “Do you know what kind of a f--k this would be? Has your husband done it to you from the back?”
8. Mr. Samra asked Ms. Bhimani to accompany him to a departmental picnic in 1993. He suggested that they could put in an appearance at the picnic and leave to go to her home. She declined. On the day of the picnic, after all the staff had left, she was still at the office alone when Mr. Samra showed up and grabbed her by the hands and asked her to leave with him. She was afraid as they were all alone so she suggested they go outside and sit in the sun. Once
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Decision Page 4 outside he began to confide in her about his marital problems. Eventually he left when another employee showed up.
The following Monday, Mr. Samra telephoned her and asked that she not tell anyone what he had said as this would degrade him if certain individuals found out.
9. On a number of occasions, Mr. Samra grabbed her neck and shook her. When told to stop, he laughed and said: “What are you going to do about it? I can touch you any time and anywhere I want.”
10. In March of 1994, Mr. Samra allegedly told her that he wanted to buy her red underwear for her birthday which she could model for him. He is also alleged to have said that he bought red underwear for a Jennifer Robinson who used to work with them.
11. In June of 1994, they were walking together in Stanley Park during the lunch period. He pestered her to take the day off and go with him to have sexual relations. She told him that she had no feelings for him at which point she alleges that he pushed her hard towards the bushes. She stumbled, regained her balance and left, walking quickly, almost running, back to the office. He chased her, screaming things at her. She was crying. He said: “Do you think you’re pretty. What do you have that other women don’t have. I should hire six men to give you a good f--k in all directions. If you go back to work and don’t work this out I will stop talking to you.” Upon reaching the street where her office was located, she turned and said to him: “F--k-off Sat. I don’t ever want to see you and talk to you. Leave me alone.”
Once back at the office, he came by her desk and calmly asked her if she wanted a coke, which she declined. Later in the afternoon, he telephoned her and asked if she wanted a drink. She hung up.
A few days later, he telephoned her and threatened her and her children. He allegedly said: “If you tell anyone, you’ll find out who I am. Be sure if you love your kids, you’ll keep quiet. Don’t do damage to me. My job is very important to me.”
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Decision Page 5 A few months later, on Friday, September 30, 1994, at the end of the day, Ms. Bhimani approached Anna Marino, the Regional Manager of Human Resources, with a complaint that Mr. Samra had been harassing her for a period of time.
I have attempted to summarize the essence of Ms. Bhimani’s written complaint against Mr. Samra which she expanded upon to some degree in her testimony. She also testified that she always rejected Mr. Samra’s advances. She told him that he was a married man and that he should stop pestering her to have sex with him; she told him that she was not “that kind of a woman.” She also testified that following the incident in Stanley Park, she began to fear for her safety and that of her children.
It is also worth noting that Ms. Bhimani did not make a complaint immediately upon speaking to Ms. Marino. Ms. Marino testified that Ms. Bhimani asked her to promise that she would not speak to anyone about this as she was uncertain whether she wanted to file a formal complaint. According to Ms. Marino, Ms. Bhimani felt she had to speak to someone and throughout their meeting was sobbing constantly, at times, uncontrollably. She felt embarrassed and dirty and felt that Mr. Samra was laughing at her. By October 12, 1994, Ms. Bhimani filed a formal complaint.
A committee was established by Mr. John Watson, Regional Director General, British Columbia Region, Indian and Northern Affairs Canada, to investigate the complaint. It was comprised of Sandy Thomson and Frank Winters, the departmental Harassment Officers, and a Lydia Gledhill from Human Resources Development Canada (Exhibit E-7).
After interviewing all the witnesses, a report was issued (Exhibit E-18) which concluded that Mr. Samra had harassed Ms. Bhimani.
Anna Marino also testified about another harassment incident involving Mr. Samra and a Jennifer Robinson for which he was given a three-day suspension without pay. Although Ms. Marino was Jennifer Robinson’s first contact, she herself did not investigate the matter. However, Mr. Samra, for the most part, admitted the allegations. Ms. Marino testified further that the instant investigation involving Ms. Bhimani was the first formal one ever carried out in this region by INAC.
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Decision Page 6 During cross-examination, Ms. Marino testified that the Statement of Allegations dated November 1, 1994 (Exhibit E-8) was different in certain respects from Ms. Bhimani’s initial complaint (Exhibit E-3) and had been drafted with the Investigating Committee's assistance. Some details in one were not contained in the other. Ms. Bhimani testified that the Investigating Committee drafted Exhibit E-8 and she signed it.
Shanaaz Bhimani testified, in cross-examination, that she had never said or done anything to lead Mr. Samra to believe that she was interested in him or in his advances. She had tried to make it clear that the opposite was true. They were rarely alone together. Their relationship was one of friends at work who went, together with others, for coffee, for lunch or for a walk. She never met him socially outside the office.
Because she drove to work, she usually would drop off a friend, Manminder Gill, at the Skytrain after work. Often, Mr. Samra went along because he also lived in Surrey near Ms. Gill; Ms. Bhimani lived in Burnaby. They were all office friends. When asked during cross-examination why she was friendly with someone who was harassing her, Ms. Bhimani replied that she had told him to stop and to leave her alone. However, after the incident in Stanley Park, she was afraid of him.
Lori Dobson, Pat Knight, Manminder Gill and Brenda Dempster also testified about the Witness Statements that they prepared and signed (Exhibits E-13, E-14, E-15 and E-16) for the investigation. All work for INAC in the same area or building as Ms. Bhimani and Mr. Samra.
Lori Dobson testified that she has known Mr. Samra since 1990. They often had intimate conversations about sexual matters and he frequently teased her about taking the day off to go to a hotel room with him. She considered it a joke and never took him seriously and nothing ever came of it. He often talked about women’s bodies and she resented this but never told him so. On one occasion, he made a very personal comment to her about an outfit she was wearing and this upset her considerably. However, he later apologized and she forgot about it. She testified further that Mr. Samra had told her that he frequented prostitutes. Although his comments did not upset her, she felt sorry for his wife.
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both direct examination and in
Decision Page 7 Pat Knight testified that she heard Mr. Samra tell Ms. Bhimani to “get a life” on several occasions. This was not unusual as many people had told Ms. Bhimani the same thing, including herself. Ms. Bhimani seemed to have no life away from work other than for her children. Ms. Knight testified that Mr. Samra often said things jokingly, in her opinion. She was present on one occasion when Mr. Samra was pestering Ms. Bhimani to spend the night with him, and others, in a van so they could be first in line at Crown Assets Disposal to get a computer table bright and early the next day. She felt this was said in a joking manner and did not have any sexual connotation. Nevertheless, Ms. Bhimani refused.
Ms. Knight also testified that Mr. Samra often spoke about his outings with his buddies, about how they would to go Hawaii without their wives and have a good time.
Manminder Gill testified that Ms. Bhimani is a very religious person and that all her activities center around her children and her mosque. She indicated that most of the group had told Ms. Bhimani to “get a life” at some time or other. She testified further that Mr. Samra is a “very personable, likable, jovial person”. She does not recall him ever making inappropriate comments to anyone in her presence.
Brenda Dempster testified that Ms. Bhimani was a very moral and religious person. She was never flirtatious with any of the men who worked with her and she never told off-colour jokes or things of the like. She testified further that she herself had never witnessed Mr. Samra doing or saying anything untoward to anyone.
Sandy Thomson is the Director of Executive Services, British Columbia Region, INAC. She had acted as the Harassment Officer for a number of years until it was turned over to human resources. She testified that she first encountered Ms. Bhimani on October 3, 1994 when she came to her office. She was in tears, extremely emotional and the incidents involving Mr. Samra tended to just “tumble out of her”. At that point, Ms. Bhimani was not making a formal complaint. She only decided to do so a day or two later. Ms. Thomson testified that she advised her to write it all down and put it in some chronological order as her thoughts were very disorganized. Eventually, Ms. Thomson was asked to chair an investigation committee to look into this matter. The committee interviewed all the witnesses and prepared a report (Exhibit E-18), a draft of which was given to Mr. Samra.
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Decision Page 8 During cross-examination, Ms. Thomson was asked how she could have served as an impartial person on this committee once she had heard the initial complaint. She replied that she could not see how her impartiality had been compromised by hearing the complaint. That was the usual first step. Furthermore, the investigation was handled by a committee of three people; she was just one of them. Ms. Thomson acknowledged that this was the first time she had been involved in a formal, full scale harassment investigation.
Ms. Thomson also testified that the investigating committee, because there were no direct witnesses, based its conclusions on a simple balance of probabilities.
John Watson is the Regional Director, British Columbia Region, INAC, a post he has held since September of 1991. He testified that once the complaint was brought to his attention, he initiated the investigation. He set up a panel and attempted to ensure that it would be impartial and thorough by having it made up of persons from both inside and outside the department. He read the report, studied its conclusions and agreed with them. He also took into consideration that this was not the first time Mr. Samra had been accused of harassment. The report demonstrated a pattern of harassment on the part of Mr. Samra and he could not be permitted to remain in the workplace particularly when some fifty-seven percent of their workplace was made up of females. Hence, Mr. Samra was discharged.
Ruth Hamar worked in the same section with Mr. Samra. She has known him since February 1992. She got along well with him and considers him a pleasant, good- natured person who was always willing to help out. He was a good-humored individual who always “found funny parts in life.” She had only a passing acquaintance with Ms. Bhimani and spoke to her on very few occasions. One, in particular, that she recalled happened at a MacDonald’s restaurant where several employees had gone together for lunch. On that occasion, Ms. Bhimani spoke about her fear of her husband and brother-in-law. She was afraid that they were going to kill her. Mr. Samra was present on that occasion. Following lunch, as they were walking back to the office, Mr. Samra had managed to get a considerable distance ahead of them and Ms. Bhimani ran to catch up with him. According to Ruth Hamar, Ms. Bhimani “only had eyes for Samra; she didn’t see anyone else. Shanaaz always seemed to materialize wherever Samra went. Shanaaz was not afraid of Samra. I would say it
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Decision Page 9 was the reverse. He always seemed to be easing away whenever she approached.” Ruth Hamar testified that Mr. Samra was the same with everyone, always friendly, helpful and jovial. In her opinion, “Shanaaz had goo-goo eyes for him.” Ruth Hamar was aware that Ms. Bhimani was always telephoning Mr. Samra because he often had his calls forwarded to Ruth Hamar when he was away from his desk.
Ruth Hamar testified that she had seen the Hawaii pictures and found nothing offensive about them. Everybody simply joked about them and asked who the girls were.
In response to a direct question, Ruth Hamar stated that she would have no objection to working with Mr. Samra again. He was a “very good person to work with.”
During cross-examination, Ruth Hamar testified that she had no particular relationship with or feelings for Mr. Samra. She sometimes gave him advice on how to handle his children as she was a grandmother with three married sons.
Concerning the Jennifer Robinson incident, Ruth Hamar testified that Mr. Samra was “railroaded”. In her view, “Jennifer threw herself at him and a person would have to be retarded not to have noticed it. I don’t like to see young people chasing after a married person. I don’t like to see people fooling around. I don’t believe in adultery.”
Madeline Reimer has worked for Indian and Northern Affairs since 1989; for the last four years, she has been in the same unit as Mr. Samra. She described him as an amiable, personable individual who likes to joke around. She often saw Ms. Bhimani and Mr. Samra together at or near work, on the street together, or at restaurants. Often, Ms. Gill and Ms. Bhimani would stop by at his desk to pick him up on the way to coffee. She never observed anything that would indicate that Ms. Bhimani was afraid of him. On the contrary, she recalled that Ms. Bhimani had asked Mr. Samra on one occasion to help paint her house.
Ms. Reimer had also seen the Hawaii pictures and found nothing offensive in them. She also testified that she would have no problem working with Mr. Samra again.
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Decision Page 10 Ruth Cherry testified that she has known Mr. Samra since she began working at Indian and Northern Affairs in August of 1992. She described herself as an ardent feminist. She often went out for coffee-breaks or walking with Mr. Samra and never felt uncomfortable with him. On all those occasions, he never once said or did anything offensive. She recalled an occasion when the two of them were on a course at Harrison Hot Springs. Late one afternoon, she knocked on his door to ask him if he wanted to go for a swim with her. He declined but said that he would be in his room watching television and a movie later and he invited her to stop by. While swimming, she met Christine McPhedran (a supervisor in Accounting Operations) and invited her to join them in Mr. Samra’s room. Ms. Cherry went to Mr. Samra’s room and was there alone with him for a half hour or so before Christine McPhedran arrived. At no time did she ever feel uncomfortable or fearful while alone with him.
Ms. Cherry testified that she once discussed the subject of prostitutes with Mr. Samra. The topic probably came up in the context of movies. Mr. Samra described how he and his friends sometimes went for pizza after a movie and would drive around the area in Vancouver nearby where prostitutes plied their trade. She thought this was just dumb and gave it no further thought. She did not find the conversation offensive.
Ms. Cherry testified that she was horrified when she learned of Ms. Bhimani’s complaint. She found it “unbelievable, startling and shocking.” She testified further that she would have no objections to working with Mr. Samra again and that it was somewhat ironic that she, who is well-known for her feminist views, is defending someone who is accused of sexual harassment.
During cross-examination, Ms. Cherry testified that she did not date Mr. Samra. They simply went out for walks together to English Bay and back to the office, sometimes combined with lunch.
Concerning the Jennifer Robinson incident, Ms. Cherry testified that Mr. Samra had told her about it. He told her that both he and Jennifer were jointly responsible for it but that his supervisor, Christine McPhedran told him he should have known better. Hence, he had thought it better to accept responsibility and have it quickly forgotten. However, he had been adamant that Ms. Bhimani’s complaint was totally
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Decision Page 11 unfounded. He felt that Ms. Bhimani was interested in him but that it was not reciprocal.
Ruth Cherry was also around when the Hawaii pictures were being passed around. She found nothing offensive in them. Everyone was joking about them and Mr. Samra seemed to go along with it. She considered it nothing more than an exhibition of machoism on his part.
Ms. Cherry testified that she did not believe that Mr. Samra was guilty of the allegations made by Ms. Bhimani. In her experience, he was always well-behaved and it would be out of character.
Laila Haji has been employed with Indian and Northern Affairs since June of 1980. She has known Mr. Samra since he began working there. She described him as a good co-worker and as a very kind-hearted, hardworking family man.
Laila Haji testified that she belongs to the same mosque as Shanaaz Bhimani but that she has differences with her and does not like being with her. This happened as a result of a confidence that Ms. Haji had told Ms. Bhimani which she did not keep. It had nothing to do with their work situation. Previously, they had been friends.
Ms. Haji testified that she had been responsible for the Valentine’s Day card incident and regretted allowing it to happen. She was also present when the Hawaii pictures were shown and discussed and did not recall any discussion about the women in the pictures being prostitutes. Ms. Haji testified that she saw Ms. Bhimani and Mr. Samra together on many occasions and that Ms. Bhimani was the one who was always “bumping up” against him. Ms. Haji testified that she recalled one occasion which was after the alleged incident in Stanley Park when Ms. Bhimani was pestering Mr. Samra to go to lunch. It was Mr. Samra’s birthday. He kept saying to her that he did not want to go with her. During cross-examination, Ms. Haji testified that she was certain that this took place after the investigation was completed.
Laila Haji testified further that she would have no difficulty working with Mr. Samra again.
Christine McPhedran has been employed with Indian and Northern Affairs since February of 1983. She has known Mr. Samra since early 1991. She is his supervisor as
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Decision Page 12 well as of seven other people in Revenue, Trust and Loan Accounting, the unit of which she is Head. She described Mr. Samra as a good, friendly, reliable person who got along well with his colleagues. He also received favourable comments from his work-related clients.
Christine McPhedran testified that the Jennifer Robinson complaint involved touching, kissing and suggested sexual encounters. Jennifer Robinson, who was 18 years of age at the time, was a summer student working in Ms. McPhedran’s unit. She was also the daughter of a more senior manager at Indian and Northern Affairs. According to Ms. McPhedran, Mr. Samra was not solely responsible for the incident. Jennifer Robinson’s workday ended a full half hour before Mr. Samra’s but she often waited for him to take the Skytrain together. She was very often by his desk laughing and talking. It was obvious that there was mutual interest between the two and that Jennifer Robinson was flirting with him. Christine McPhedran believed that Jennifer’s behaviour, in part, was an invitation for him.
Jennifer Robinson’s complaint came as a total surprise to everyone and, in Ms. McPhedran’s opinion, Mr. Samra was deceived by Jennifer Robinson and she was not telling the truth about what may or may not have happened.
Ms. McPhedran testified that the Jennifer Robinson incident was generally not well known around the office, probably due in part to the fact that Mr. Samra said he would accept full responsibility for it even though he felt it had been a mutual thing. He wanted it to be buried quickly so he could get on with his life. The same, however, was not true for the Shanaaz Bhimani complaint. It seemed as if the entire department knew and talked about it.
Christine McPhedran testified that, in her opinion, there were many serious questions about Ms. Bhimani’s allegations that were unanswered. Ms. McPhedran believes there was no direct proof of anything and that Mr. Samra did not really do anything to Ms. Bhimani to warrant his dismissal. He had no history of violence or aggression and it took a great deal to even make him angry.
Ms. McPhedran testified that after the Jennifer Robinson incident, Mr. Samra kept pretty much to himself. He went out less and ate his lunch at his desk. He socialized much less.
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Decision Page 13 Satwinder Samra began working with Indian and Northern Affairs in February 1991 as an Accounts Receivable Clerk (CR-3). Soon after, he was promoted to a Cash Control Reporting Clerk (CR-4). Throughout most of this period, he has been supervised by Christine McPhedran.
Mr. Samra testified that he met Shanaaz Bhimani through her friend Manminder Gill. Until 1992, after his trip to Hawaii, he had never gone to lunch alone with Ms. Bhimani. He did not even know her on a one-to-one basis. He returned from Hawaii with inexpensive gifts for many fellow employees, including Ms. Gill and Ms. Bhimani. These were souvenir necklaces and earrings, etc. After this trip, he began to go to lunch with Ms. Bhimani but, most often, there were others present. it was his testimony that he only went for lunch and walked with her alone some dozen or so times over the next few years.
During their walks, Ms. Bhimani usually spoke about her ex-husband and of how he had abused her until she finally left Calgary with her children to live in Vancouver. The husband blamed her for the marriage breakup as did her son and daughter. Her brother-in-law would telephone her frequently, demanding that she turn over her son to him or that “they” would come and take him away from her. According to Mr. Samra, Ms. Bhimani used to relate these things not just to him but to the entire group of co-workers who went for coffee or to lunch together. Everyone was telling her to do something about it and to stop talking about it and to get on with her life. Everyone was tired of listening to her.
Mr. Samra testified that he never discussed sex with Ms. Bhimani except in the context of her daughter with whom she was experiencing difficulty. Her daughter was demanding expensive clothing and things Ms. Bhimani could not afford and the two were always fighting over such things. The daughter was 13 years old at the time and Mr. Samra was urging Ms. Bhimani to straighten her out. It was in this context that he had explained that some young girls turned to prostitution to buy themselves the things they wanted.
Mr. Samra testified that he was never given a copy of Shanaaz Bhimani’s complaint (Exhibit E-3). His lawyer had to obtain it from the police.
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Decision Page 14 It was Mr. Samra’s testimony that the Valentine’s Day card was really a non-incident. He found the card on his desk and wanted to learn who had left it there. He approached Ms. Bhimani about it once as he did others. Everyone was teasing him about his “secret admirer”. In his view, Ms. Bhimani wanted to find out who sent him the card more than he did.
Mr. Samra acknowledged that he had a private conversation with Lori Dobson about prostitutes but this was nothing more than a general discussion that occurred while the two were having lunch together. The topic arose because Lori frequented clubs and had mentioned that there were prostitutes around. Mr. Samra testified that he has never been with a prostitute.
Concerning the Hawaii pictures, Mr. Samra testified that this occurred in 1992 and not 1993 as was stated by Ms. Bhimani in both her complaint and her testimony. According to Mr. Samra, he barely knew Ms. Bhimani in 1992. As proof of the date of this trip, Mr. Samra referred to his approved leave request (Exhibit G-10). In Mr. Samra’s view, there was absolutely nothing amiss with any of the pictures and, indeed, his wife had seen them. His co-workers simply teased him about the pictures. Mr. Samra denied making any comments to Ms. Bhimani about the size of her breasts.
Mr. Samra testified that he never asked Ms. Bhimani to have intercourse with him and he did not ask her to take the day off with him to go to a hotel for sex. He recalled that one morning she telephoned him and said she had to speak to him in person urgently. They met around 10:00 a.m. and went for a walk. She told him that she had finally had it out with her children and told them that if they thought their father was such a great person, they were free to go and live with him. She was very upset and Mr. Samra suggested that she might want to take off a day or two and relax. As they were walking, they were facing Grouse Mountain. He mentioned that she could go there for a day. If she wished, he would accompany her. Under no circumstances did he ask her to take the day off and go to a hotel with him.
Mr. Samra denied Ms. Bhimani’s allegations that he put his hand on her thigh while she was seated at her desk; and, on another occasion, while she was standing at the filing cabinet, that he had approached her from behind, touching her and suggested that they should have sex in this manner. Mr. Samra testified that he was
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Decision Page 15 shocked to read these allegations. Ms. Bhimani sits in a totally open area and it would not be possible to have done these things without someone seeing them.
Mr. Samra denied that on the day of the office picnic he had suggested to Ms. Bhimani that they go to her home instead. It was his testimony that he was not attending the picnic as he had a medical appointment that afternoon. On his way out of the building, he passed by Ms. Bhimani’s desk. She asked him to accompany her while she went out to get something to eat as she was not attending the picnic. During this time, she told him about an experience she had when someone she invited to her home tried to seduce her. Again, she began to recount her troubles. He told her that she had to stop this and that she was not the only person with problems. It was on this occasion he confided in her about a very personal occurrence in his own life. When he was a grade 11 student here in Canada, his married brother in India died three days before he and his wife were scheduled to come to Canada. His parents suggested to him that he had a duty to marry his sister-in-law, which he did. Mr. Samra testified that he told this very personal matter to Ms. Bhimani both to show her that she was not the only person in the world who had experienced hardship and in the hope of making her feel better. He testified further that he did not telephone her on the following Monday as was suggested by Ms. Bhimani. He met her and asked her to be certain that she not reveal this personal matter to anyone. The only other person who knew about it was Manminder Gill. Mr. Samra added that he now has a good life and has two sons. He has continued his education and has a diploma in accounting.
Mr. Samra acknowledged that, on one occasion, he did grab Ms. Bhimani by the shoulders from behind while going down the stairs in their building. It was done in jest and there were other people present. Everyone found it amusing but when she said it had frightened her, he had apologized immediately.
Mr. Samra testified that he did not offer to buy Ms. Bhimani red underwear for her birthday. He did not even know her birth date. Also, he had not done so in the case of Jennifer Robinson whose favourite colour happened to be red and who often wore red and black shorts to work.
With regard to the Stanley Park incident, it was Mr. Samra’s testimony that it never happened. On the day in question, at the end of April 1994, Ms. Bhimani asked
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Decision Page 16 him to join her along with others to go for lunch. He declined, saying that he needed to walk a great deal as he had undergone knee surgery in late February. She later telephoned him and said she would go for a walk with him. During their walk, they met other people from the office. The park was full of people. She brought up her problems with her ex-husband again. He did not wish to discuss them as he had problems of his own at that time, including planning a trip to India. Mr. Samra testified that at no time did he ever touch her during this walk in the park. In fact, after this alleged incident, she had asked him to bring back a suit for her from India. He left for India on July 15, 1994 and returned on August 24, 1994. It was his testimony that at no time did he ever threaten her or her family. He had no reason to do so. He really only wanted to avoid her and to look after his own problems.
Mr. Samra testified that, in respect of the Jennifer Robinson incident, her charge came as a complete surprise to him. She had been leading him on and appeared to be a very willing participant. He could not understand why he was being charged with sexual harassment while Jennifer Robinson could simply walk away from it. Ms. McPhedran told him that he should have known better. He accepted that and felt that it was better to acknowledge it and put it behind him quickly in the hope that it would not become known around the office. He offered and wrote a letter of apology to Jennifer Robinson and agreed to the suspension. Mr. Samra also emphasized that at no time had he ever touched Jennifer Robinson physically. He had blown kisses to her. Also, he had no further contact with her after that.
Mr. Samra testified that the culmination of his embarrassment and consternation occurred when police came to his office and arrested him for having threatened Ms. Bhimani and her children. He was handcuffed and taken to the police station where he was later released after he signed a Recognizance of Bail/Engagement whereby he agreed to have no contact with Ms. Bhimani or her children and to appear in provincial court on October 26, 1994 (Exhibit E-12).
It is Mr. Samra’s belief that he has been badly treated by his employer as well as by Ms. Bhimani. He was a friend to her who listened to all her troubles. When he stopped helping her, she turned on him. He is proud of his personal accomplishments and of his job. He is adamant that absolutely nothing happened between Ms. Bhimani and himself in Stanley Park.
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Decision Page 17 During cross-examination, Mr. Samra insisted that he had been a friend to Ms. Bhimani and that he had always been there to give her advice and support when she needed it. He said that he attributed her allegations to the fact that he had finally told her to stop complaining to him and that he did not want to hear her sad stories any more. He did not want to see her any more for coffee, lunch or walks and he believes that she manufactured these charges because of the fact that he no longer wished to see or talk to her.
Argument Counsel for the employer submitted that after Ms. Bhimani filed her complaint, the department followed appropriate procedures by setting up an investigation committee and interviewing all possible witnesses. The committee was satisfied, on the basis of a balance of probabilities, that Mr. Samra had personally and sexually harassed and assaulted Ms. Bhimani and that there were no mitigating factors which could be used to lessen the penalty of discharge. Counsel submitted that fifty-seven percent of the Indian and Northern Affairs staff in the B.C. region were women and sexual harassment could not be tolerated. Counsel reviewed the investigating committee’s findings (Exhibit E-18) and concluded that on a balance of probabilities, it had reached a proper conclusion in finding Mr. Samra guilty of breaching the Treasury Board and departmental harassment policy. In counsel’s submission, the issue boils down to one of credibility and the investigating committee believed Ms. Bhimani and so should I.
In support of his submission, counsel for the employer referred me to the following:
Canadian Labour Arbitration, Third Edition, Brown and Beatty, Chapter 7:3430; Canadian National Railway Co. and C.B.R.T. & G.W. (1988), 1 L.A.C. (4th) 183; Royal Towers Hotel Inc. and Hotel Restaurant and Culinary Employees and Bartenders Union, Loc. 40 (1992), 32 L.A.C. (4th) 264;
Kahlon (Board file 166-2-20871). Counsel for the grievor agreed that the issue was one of credibility. However, the employer still had to meet the burden of proof. In her submission, the burden of
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Decision Page 18 proof in cases of sexual harassment and physical assault is not one of a simple balance of probabilities. There must be clear, strong and cogent evidence to support the allegations. In counsel’s view, the employer has failed to meet that standard.
Counsel for the grievor submitted that the employer has relied heavily on a prior incident involving Jennifer Robinson for which the grievor was given a three-day suspension. The employer has tried to link the two matters on the basis that the prior incident constitutes proof of the second. This can not be so. The second incident must be proved to have occurred on its own. In fact, the very introduction of the Jennifer Robinson incident was objected to by counsel for the grievor as being inadmissible because of this.
On the basis of the case presented on behalf of the employer, counsel for the grievor submitted that there was no clear evidence to the allegations made against the grievor.
The report of the investigating committee was flawed in that certain members were biased. For example, Ms. Thomson testified that she had been involved in hearing the initial complaint and then chaired the investigating committee. In addition, she acknowledged that this was the first time she had ever been involved in such a matter. Anna Marino testified that there were some differences between Ms. Bhimani’s initial Statement of Particulars (Exhibit E-3) which she signed on October 12, 1994 and the Statement of Allegations (Exhibit E-8) signed by her on November 1, 1994. This was done by the employer to ensure that Mr. Samra would be found guilty.
Counsel for the grievor submitted that none of the employer’s witnesses could point to any single incident they had seen to corroborate Ms. Bhimani’s allegations. In talking to other employees about the Jennifer Robinson incident, Ms. Bhimani was setting the stage for her own complaint. In doing so, she adopted certain things as her own, such as the matter involving red underwear. Many witnesses testified that Ms. Bhimani was having problems with her ex-husband and her children. They testified that she was always talking and complaining about them. Many employees had told her to “get a life” or to get on with her own life.
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Decision Page 19 The discussion that Mr. Samra had with Lori Dobson was really a non-issue. There were no sexual connotations. It was just a discussion. The same can be said for the Valentine’s Day card incident. Even the investigating committee found nothing offensive in this. Counsel submitted that the employer’s entire case hinges upon the alleged threats and the alleged incident in Stanley Park. There was no proof offered. All we have is Ms. Bhimani’s complaint and testimony that they occurred. Mr. Samra denies ever threatening her or her family. That something occurred in Stanley Park between the two of them is very likely, but it was not what was being alleged. In Mr. Samra, Ms. Bhimani had found someone who cared, listened to her problems and gave her advice. When he told her that he did not want to listen to her any more or to see her, she was disappointed and felt deceived. She did not want to lose his friendship or his company. According to Ruth Hamar, she had a crush on him. Ms. Bhimani could not accept the result and sought revenge.
Christine McPhedran who has known and supervised him for virtually his entire time at Indian and Northern Affairs testified that he was not an aggressive or violent person. It was difficult to understand how Ms. Bhimani could be so friendly to someone who was supposed to be harassing her.
Counsel for the grievor submitted that the employer had not met the burden of proof in this case. There was no evidence of any deterioration in the work environment and not a single witness had testified about any unwillingness to work with the grievor again. There being no impediments to his reinstatement, he should be reinstated accordingly, with full back-pay and benefits retroactive to the date of his dismissal.
In support of her submission, counsel referred me to the following: Janzen v. Platy Enterprises Ltd., [1989] S.C.R. 1251, 43 Man. R. (2nd) 293, 33 D.L.R. (4th) 32, [1987] 1 W.W.R. 385, 87 CLLC 17,014, 8 C.H.R.R. D/3831;
Evidence and Procedure in Canadian Labour Arbitration, Gorsky, Part IV, Chapter 13;
Indusmin Ltd. and United Cement, Lime and Gypsum Workers International Union, Local 488 (1978), 20 L.A.C. (2d) 87;
A.B.F. Freight Systems (B.C.) Ltd. and General Truck Drivers & Helpers’ Union, Local 31 (1987), 28 L.A.C. (3d) 246;
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Decision Page 20 Johnson (Board file 166-2-22252); Chandler (Board file 166-2-17041); Frankel (Board file 166-2-23022); Smith (Board files 166-2-22981 and 22982); MacLean (Board file 166-2-22580); Martin’s Criminal Code, 1993, s. 810.
Reasons for Decision This case is, indeed, a difficult one to determine. The allegations, if true, are certainly such as to warrant the termination of the grievor’s employment. The difficulty, a common difficulty in such cases, is that there is not a single witness to any of the alleged incidents which are relevant to a proper determination of the case. In my respectful opinion, not all of the alleged incidents submitted in the employer’s case have equal bearing on the outcome. I shall return to this later.
I would first like to deal with the issue of the burden of proof. Counsel for the employer submitted that, on the basis of a simple balance of probabilities, the investigating committee was satisfied that Mr. Samra was guilty of personally and sexually assaulting and harassing Ms. Bhimani. Counsel for the grievor has submitted that the standard in a case such as this must go beyond that of a simple balance of probabilities and that “clear, strong and cogent” evidence to support the allegations must be adduced. I agree with her.
In conclusion, the Investigation Committee found that: ... There is a strong likelihood that Mr. Samra also made comments of a personal and sexual nature to Ms. Bhimani regarding prostitutes, her relationship with her husband, and her body, and it is also likely that he made sexual remarks accompanied by unwelcome invitations to her to sleep with him.
On the balance of probability, it is not unlikely that the physical assault took place in Stanley Park as described by Ms. Bhimani, conduct which Mr. Samra would have known to
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Decision Page 21 be offensive to Ms. Bhimani and contrary to the department's harassment policy.
Respectfully, I find it unacceptable as proof of guilt that serious incident is determined to have taken place on the basis that it was "likely" or "not unlikely". The existing jurisprudence is rife with cases which support the notion that in cases of serious alleged misconduct, particularly where a person’s continued employment and reputation is at stake, the employer must demonstrate by clear, convincing and cogent evidence that the allegations have occurred. While the standard is not that of criminal cases requiring proof beyond a reasonable doubt, it requires more than a mere preponderance of proof. The Supreme Court of Canada has held that, in such cases, the standard must be greater than a mere probability that something has occurred but less than that required in a criminal court: Bater v. Bater, [1950] 2 All E.R. 458 (C.A.) at p. 459, per Lord Denning, as cited in R. v. Oakes (1986), 26 D.L.R. (4th) 200 at p. 226, [1986] 1 S.C.R. 103, 19 C.R.R. 308 at p. 335. In Continental Ins. Co. v. Dalton Cartage Co. Ltd., [1982] 1 S.C.R. 164, Chief Justice Laskin concluded:
...in dealing with the burden of proof [the court] could properly consider the cogency of the evidence offered to support proof on a balance of probabilities and this is what he did when he referred to proof commensurate with the gravity of the allegations of the accusation of theft by the temporary driver. There is necessarily a matter of judgment involved in weighing evidence that goes to the burden of proof, and a trial judge is justified in scrutinizing evidence with greater care if there are serious allegations to be established by the proof that is offered.
Professor Gorsky in his text Evidence and Procedure in Canadian Labour Arbitration (supra), has used the following words to describe how the burden of proof must be satisfied:
...Talking about “heavy onuses” or “light onuses” is just a confused way of giving legal recognition to a principle of social thinking: the more unusual or objectionable some conduct is, the more convincing the proof of it must be before we believe it occurred.
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Decision Page 22 Based on the above, I believe this case must be decided on the basis of clear, compelling and cogent evidence to substantiate the allegations made against Mr. Samra.
Both the investigating committee and counsel for the employer concluded that the incident at the workplace at which time Mr. Samra grabbed Ms. Bhimani by the shoulders as they and others were going down the stairs constituted “touching” and that this incident lent credibility to Ms. Bhimani’s version of the Stanley Park incident. In my opinion, this is a giant leap that is without any foundation. I see the stairwell incident as an instance of “horseplay”, perhaps ill-advised because of the potential danger involved if Mr. Samra lost his grip and Ms. Bhimani had fallen, but “horseplay” nonetheless. The witnesses who were present saw it in this same light. To put this on the same level as “sexual touching” or as a corroboration of Mr. Samra’s penchant for later sexual touching or assault as the employer has done is folly.
The employer seems to have placed considerable importance on the Jennifer Robinson incident as an indication of a pattern of consistency in Mr. Samra’s dealings with women. As noted earlier in the decision, counsel for the grievor objected to the introduction of this evidence. I permitted its introduction subject to a later determination of the weight I would accord it. I have no doubt that it was proper for me to permit this evidence to be introduced. It was still on the grievor’s file because the two-year time period for it to be removed from his file had not elapsed at the time of Ms. Bhimani’s allegations. It was also related in kind to the later allegations. However, the weight to be given to it is more difficult to determine. Various witnesses testified that there appeared to be a mutual interest on the part of Jennifer Robinson and Satwinder Samra. Witnesses testified to the effect that Jennifer Robinson “threw herself” at Mr. Samra; that her behaviour was an “invitation” to him; and that her complaint “came as a total surprise to everyone.” Notwithstanding, Mr. Samra accepted responsibility and was disciplined as a result.
It was within the employer’s power to have Ms. Robinson testify. It might have been helpful to have heard her testimony. However, that was not done. The only conclusion I can safely reach is that an incident occurred between them for which Mr. Samra accepted responsibility and for which he was given a three-day suspension. Given the testimony of various witnesses alluded to above, I do not feel it permits me
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Decision Page 23 to conclude that it can be used to show a pattern of behaviour on the part of Mr. Samra. The most one could say is that, perhaps, it demonstrates that Mr. Samra is prepared to engage in an extra-marital affair if the opportunity presents itself. I do not believe that it can be used to corroborate Ms. Bhimani’s allegations.
The employer has also concluded that the discussion of prostitutes or prostitution is an inappropriate topic for the workplace and that this constituted improper behaviour in the workplace (Exhibit E-18, #13). Again, with respect, I must disagree. This subject was dealt with in Re C.U.P.E. and O.P.E.I.U., Loc. 491, 4 L.A.C. (1982), (3d) 385, where an arbitration board concluded that private conversations between a male and female employee dealing with sexual matters would not of themselves be sufficient to substantiate a charge of sexual harassment. Part of the board’s decision stated as follows:
Surely, employees can discuss issues with a sexual connotation, whether rape laws or the problems of divorce and single parents, without risking a charge of sexual harassment because a male holds a view which a woman worker perceives as sexist. A standard of reasonableness is required in reviewing the verbal conduct, both as to the offensiveness and whether it creates a harassing and negative condition of work...
Furthermore, if a woman finds comments distasteful, even though such comments are within the realm of tolerable or acceptable comments to many, she should make this known to her co-worker. Communications of discomfort may well end the discussion by the other employee.
It is questionable whether employers have the right to establish standards of social contact in the workplace. In the instant case, it would seem that the employer would seek to impose a standard to limit the topics employees might wish to discuss. As arbitrator Shime said in a matter known as the Cherie Bell case (1980), 1 C.H.R.R. d/155 a decision of a board of inquiry under the Ontario Human Rights Code:
Again, the Code ought not to be perceived as prohibiting free speech. If sex cannot be discussed between supervisor and employee, neither can other values such as race, colour, or creed which are contained in the Code.
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Decision Page 24 According to Ms. Bhimani, Mr. Samra often made sexual comments to her during their walks at lunch time. She alleges that she told him to stop but that he continued to do so. The fact remains that she continued to take walks with him during the noon hour at least up to the Stanley Park incident. If the alleged comments were as offensive to her as she suggests, then one has to question why she continued to walk with him.
The Valentine’s Day card incident appeared to be a non-incident for every employee who was aware of it at the time, except for Shanaaz Bhimani. Ms. Bhimani contends that Mr. Samra teased her by kissing the card and suggesting to her that she was his secret admirer. Mr. Samra denies that he ever did so and that she was more interested in learning who sent him the card than he was. Regardless who is right, I do not consider this incident to be of great significance in mounting a charge of sexual harassment.
Ms. Bhimani alleged that Mr. Samra wanted to buy her red underwear for her birthday which she could wear or model for him. Mr. Samra denied the allegation. There were no witnesses.
Concerning the Hawaii pictures, there was evidence that none of the witnesses found them offensive. However, in the case of Ms. Bhimani, Mr. Samra is alleged to have made a comparison between the size of her breasts and those of the women in the photographs. There is no question that, if made, the alleged comments would be improper and offensive. Mr. Samra denied making them and there were no witnesses.
Mr. Samra is alleged to have made frequent invitations for sex to Ms. Bhimani during their walks at lunch time, at her desk, or when they went for coffee. There were no witnesses to corroborate these allegations as they would likely not have been made in the presence of others. However, Ms. Bhimani continued to go for noon hour walks and for coffee with him.
Ms. Bhimani alleges that Mr. Samra, on one occasion, placed his hand on her thigh while she was seated at her desk. On another occasion, she alleges that he approached her from behind while she was bent over filing and that he made offensive sexual comments to her. Mr. Samra denies these incidents ever occurred.
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Decision Page 25 However, it was not disputed that Ms. Bhimani works in a very open area and that there is a constant movement of individuals about.
I turn now to the alleged incident in Stanley Park and its aftermath, the alleged threatening telephone conversation. Once again, there were no witnesses. Concerning the walk in the park, the only facts not in dispute are that they did go for a walk around Lost Lagoon, that there were many people walking in that area on that day, and that Ms. Bhimani was in a somewhat disturbed state when she returned to the office. It is likely that something occurred between them in the park that day. The two versions of events are equally credible. It is worth noting, however, that following this alleged incident, there was undisputed testimony that Ms. Bhimani asked Mr. Samra to bring her back a suit from a planned trip he was taking to India in July. It is somewhat puzzling that a person who feared for her safety and that of her children would ask the very cause of that fear to do such a favour.
Counsel for the grievor submitted in argument that the report of the investigating committee was flawed because Sandy Thomson, who chaired it, had been involved in hearing the initial complaint. While it might have been wiser to not have Sandy Thomson sit on or chair this committee, I do not believe that the process is flawed because of it. This hearing was, in a sense, a trial de novo and the persons who were interviewed by the committee also testified at this hearing. It is my view that the grievor was not prejudiced in any way and, in any event, whatever procedural irregularities resulted from the investigation were cured in the hearing before me: Tipple v. Canada (Treasury Board) F.C.A. Sept 26, 1985, File No. A-66-85.
Both counsel submitted that the issue to be determined in this case was one of credibility. Am I to believe Ms. Bhimani or Mr. Samra? Both testified with candor and in what appeared to be a sincere and straightforward manner. I find it difficult to prefer the evidence of one over the other. There are, however, one or two matters which I find perplexing.
The evidence showed that some of the alleged incidents were said to have occurred in busy open areas where other persons are normally present or within view. Ms. Bhimani herself testified that she and Mr. Samra were rarely alone together. It is somewhat puzzling that there was never a single witness to any of these alleged incidents. It is also passing strange that Ms. Bhimani continued to meet with and
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Decision Page 26 speak to Mr. Samra over a considerable period of time if he was guilty of the various allegations made against him and which she found to be offensive. Indeed, Laila Haji testified that on one occasion after the investigation of these allegations, Ms. Bhimani “pestered” Mr. Samra and wanted to take him out to lunch, which he declined. I was also impressed with the fact that not a single witness who testified for either party was particularly critical of Mr. Samra. Apart from one, all were women. One, Ruth Cherry, described herself as an ardent feminist and found it ironic that she was testifying to defend a man who was accused of sexual harassment and assault.
After a careful review of all of the evidence submitted in this case, including the forthright testimony of all witnesses, what becomes very apparent to me is that the employer has failed to meet the standard of proof required to satisfy me that Mr. Samra committed the allegations outlined in the case against him and which led to the termination of his employment on January 3, 1995.
The allegations are serious. So is the termination of one’s employment. Even if only the more serious ones had been proven to have taken place, I would have no difficulty in upholding the termination of Mr. Samra’s employment. Such behaviour is not be to tolerated. However, it was not proven to my satisfaction on the basis of the evidence adduced.
Counsel for the employer submitted that it was significant that some fifty-seven percent of the Indian and Northern Affairs workforce in the B.C. region is comprised of women and, for this reason, there was an even greater reason not to tolerate sexual harassment. While I take counsel’s purpose and meaning in making the statement, I hasten to add that the composition of the workforce is really not relevant. Sexual harassment is no less possible or unacceptable if the females in a department account for but one percent of the employee population.
Mr. Samra, therefore, is to be reinstated in the position he held on the day of his termination of employment, with full pay and benefits retroactive to that date less any monies he may have received such as unemployment benefits or other earnings. I shall remain seized in the event that the parties are unable to agree upon the appropriate compensation to be paid to Mr. Samra.
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Decision Page 27 While it appears to me that there would be no difficulty for most employees if Mr. Samra were to be reinstated in his former position, it would most certainly not be an appealing prospect for Ms. Bhimani. I should think, also, that it would be in Mr. Samra’s best interests if he could be transferred to an equivalent position and level in another department. I suggest this option to the employer and to Mr. Samra, assuming that a move agreeable to both parties can be worked out.
In the sum, therefore, and for all the reasons outlined above, the grievance is allowed.
Louis M. Tenace, Vice-Chairman
OTTAWA, September 11, 1996.
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