FPSLREB Decisions

Suspension (3 days) - Removal of managerial duties - Sexual harassment - Burden of proof - Remedy - the grievor was challenging the Deputy Minister's decision of July 28, 2000, which imposed removal from his managerial position with assignment to a non-managerial position at current level and a three-day suspension - at the centre of this case was a first official complaint by a female lawyer under the grievor's supervision pursuant to the Sexual Harassment Policy - only two of the allegations made in the formal complaint were upheld by the investigators and also by the Deputy Minister, who determined the final outcome of the complaint - the adjudicator determined that the purpose of the adjudication was to assess the Deputy Minister's decision solely with respect to those two allegations - the person alleging sexual harassment claimed that a series of sexual comments had been made by the grievor to her and to another female lawyer under his supervision - the adjudicator determined a six-part formula to be used in analyzing the evidence to determine whether there has been sexual harassment - first, has the whole of the evidence surrounding the conduct in question been obtained, considered and evaluated? - second, has the evidence shown in a clear, cogent and compelling manner that the acts in question were in fact committed? - third, did the behaviour consist of persistent and repeated acts or words or is a serious act referred to? - fourth, are the respective versions of the alleged victim and the person who is the subject of the complaint credible in themselves in light of all the facts and, if so, which version is the more credible on a balance of probabilities? - fifth, is the version consistent with what a practical and informed person in the same place and circumstances would immediately recognize? - and last, in light of all of the facts surrounding the behaviour, would a reasonable person feel that the behaviour was blameworthy, unwelcome and sexual in nature? - the adjudicator considered the employer's Policy and the definition of sexual harassment which has been established in the jurisprudence and found that the employer's Policy did not provide for a high enough burden of proof to establish allegations of sexual harassment - according to the adjudicator, in light of the stigma attached to such allegations, clear, cogent and compelling evidence is required to find a person guilty of such misconduct and a determination based on the mere balance of probabilities is not sufficient - the adjudicator found that sexual harassment in the workplace is generally referred to as conduct that is blameworthy and that can take the form of verbal, physical or psychological harassment - the conduct must be sexual in nature and produce an adverse effect on the work environment or have harmful consequences on the victim's employment - the adjudicator stated that the person who is the subject of the sexual behaviour must demonstrate that he or she indicated through words and actions to the person whose behaviour is suggested as being unwelcome that the latter's conduct is to be condemned - the behaviour must be persistent and repetitive, except in cases in which a single act appears to be serious - the adjudicator concluded on the evidence that the complaint against the grievor had arisen out of a misunderstanding and that he had not engaged in any acts of sexual harassment involving the complainant and the other lawyer - the adjudicator also found that, apart from one minor incident of inappropriate comments, the grievor had been guilty of no wrongdoing whatsoever and that a reprimand would have been a sufficient penalty for that incident - the adjudicator determined, however, that in light of the stigma the grievor suffered because of the employer's decision to discipline him for sexual harassment, no additional penalty should be imposed upon him - accordingly, she allowed his grievance against the three-day suspension imposed on him by the employer and she directed the employer to reinstate him in his managerial position and to remove any reference to the discipline imposed from his personal file - finally, the adjudicator deemed it inappropriate for her to retain jurisdiction in relation to additional remedies which the grievor claimed in his grievance. Grievance allowed in part. Cases cited: Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Canadian Human Rights Commission and Canadian Armed Forces and Kimberley Franke, [1999] F.C.J. no. 757; Commission des droits de la personne et des droits de la jeunesse c. Québec, [1998] R.J.Q. 3397; Habachi c. La Commission des droits de la personne (C.A.), [1999] R.J.Q. 2522; Ribeca v. Canada, [1995] F.C.J. no. 141; Faryna v. Chorny, [1952] 2 D.L.R. 354; Leach v. Canadian Blood Services, [2001] A.J. no. 119; Continental Insurance Co. v. Dalton Cartage Co. Ltd., [1982] 1 S.C.R. 164; Johnson (166-2-22252); Satwinder (166-2-26543); Teeluck (166-2-27956); Gale (166-2-303347); Dutton v. British Columbia Human Rights Tribunal [2001] B.C.J. no. 1794.