FPSLREB Decisions
Decision Information
Financial penalty - Harassment of female co-worker - Whether refusal to speak to co-worker can constitute harassment - the grievor, a correctional officer, was advised by a co-worker that another co-worker, a female officer, would be arriving shortly with the medication that he had requested - he responded that someone else should be sent as he did not wish to see this person - the female officer was advised of his response and went to speak with the grievor, to ask him why he adopted such a denigrating attitude towards her - the grievor advised her that it was due to the fact that, some years prior, she had reported to management the fact that he had lost a radiotelephone - ever since the incident over the radiotelephone, the female officer stated that the grievor had refused to work with her because she was a woman - she also alleged he had made numerous remarks against women - following their discussion, the female officer filed a harassment complaint and the employer conducted an investigation, which upheld the complaint - the grievor was assessed a financial penalty of $600 - the grievor claimed that he could not be guilty of harassment as it was impossible to harass somebody to whom you did not even speak - according to the grievor, the female officer had amplified the situation since she had trouble working with the grievor - the employer argued that a contemptuous attitude towards co-workers was unacceptable, as was a refusal to speak to them - the adjudicator found that the grievor's attitude was wrong and constituted harassment - he held that a refusal to speak to a co-worker can indeed be harassment - however, he rejected the allegation that the grievor's attitude stemmed from the fact that he had difficulty with women and instead attributed the problem to a long-standing personal dispute between the two - he held that the disciplinary sanction was justified. Grievance denied.
Decision Content
Public Service Staff Relations Act
- Date: 2004-03-01
- File: 166-2-31036
- Citation: 2004 PSSRB 16
Before the Public Service Staff Relations Board
BETWEEN
GILLES ALAIN LOYER
Grievor
and
TREASURY BOARD
(Solicitor General Canada - Correctional Service)
Employer
Before: Jean-Pierre Tessier, Board Member
For the Grievor:: Richard Mercier, Counsel, UCCO-SACC-CSN
For the Employer: Jennifer Champagne, Counsel
Heard at Sherbrooke, Quebec,
September 9 to 12, 2003.
[1] Gilles Alain Loyer has worked for the Correctional Service since 1978 and at Cowansville Institution since 1989. On November 30, 1998, he grieved the $600 financial penalty that he was given by his employer because of his conduct towards another employee.
[2] On December 20, 2001, the grievance was referred to adjudication and the case was heard during the week of September 9, 2003. This grievance is being heard simultaneously with another one involving Mr. Loyer, namely, his termination on September 29, 2001. This last file was the subject of a grievance and bears number 2004 PSSRB 17.
[3] The parties have agreed that the evidence presented in this case may be placed in the termination file (2004 CRTFP 17) and vice versa. Each case is the subject of a specific decision.
The facts
[4] On July 24, 1997, a co-worker of Mr. Loyer wrote a letter to management (Exhibit E-2) complaining about Mr. Loyer's conduct towards her. The person who signed the complaint, Roberte Nadon, referred to an incident on July 22 of that year.
[5] On July 22, 1997, Mr. Loyer was working in the visits room and telephoned the Keepers' Hall to send someone for some medication. The officer who received the call told him that he would send Ms. Nadon, to which Mr. Loyer retorted that he did not want to see her and that someone else should be sent.
[6] When she was informed of this conversation, Ms. Nadon went to see Mr. Loyer to ask him why he had such a contemptuous attitude towards her. In reply, Mr. Loyer said that he had not appreciated the fact that Ms. Nadon had told the authorities that he had lost a radiotelephone on his shift. He said he received a suspension equivalent to two days' salary for this incident. The radiotelephone incident dated back several years, to 1994-95.
[7] In her complaint, Ms. Nadon reported that for a number of years, ever since the radiotelephone incident, Mr. Loyer had subjected her to a number of annoyances.
[8] The first witness for the employer, Claude Guérin, the Assistant Warden of Cowansville Institution, indicated that Ms. Nadon's complaint was first handled internally and a mediation was attempted between the two people involved. This was unproductive; Exhibits E-3 and E-10 contain exchanges of correspondence on this subject.
[9] Finally, the Warden determined that an independent investigation should be held, with a person from outside the institution, Carole Lefebvre, participating.
[10] In her testimony, Ms. Lefebvre commented on the investigation report provided to the Warden on July 22, 1998. She stressed that, during the investigation, a certain number of female employees were chosen for questioning since Ms. Nadon had indicated that Mr. Loyer was making comments about women and appeared to be refusing to work with her because she was a woman.
[11] Although Mr. Loyer defended himself during the investigation with the statement that he could not have harassed Ms. Nadon since he did not speak to her, Ms. Lefebvre believes on the contrary that the facts gathered during the investigation showed that Mr. Loyer's behaviour was intended to hurt and humiliate Ms. Nadon. Moreover, the conclusion of the report is in a similar vein (Exhibit E-11):
[Translation]
CONCLUSION:
According to Commissioner's Directive 255 on Harassment and Other Forms of Discrimination in the Workplace:
"harassment means any improper behaviour by a person that is directed at and/or is offensive to any employee and which that person knew or ought reasonably to have known would be inappropriate and unwelcome. It comprises objectionable conduct, comment or display made on either a one-time or continuous basis that demeans, belittles or causes personal humiliation or embarassment to an employee."In accordance with the facts collected by the investigation committee from Ms. Nadon and those who were questioned, the committee finds that Mr. Loyer's comments about the complainant and about women in general are embarrassing even though Mr. Loyer said he did not remember what he said.
Regarding Ms. Nadon's demands in relation to Mr. Loyer, the committee is of the opinion that he should have ceased his belittling behaviour since he had been made aware of it by a copy of her complaint, which was served on him, by the complainant's attempt to explain herself to him and, finally, by the actions taken by his supervisor.
Accordingly, the committee finds that the complainant's allegation that she was harassed by Monsieur Gilles Alain Loyer is founded.
[12] Ms. Nadon's testimony at the hearing corroborates the points raised in the investigation report. She said she felt persecuted and humiliated by the fact that Mr. Loyer gave her the silent treatment. She found it intolerable to work for hours in Mr. Loyer's company when he ignored her and did not speak to her. This is why she often asked to have her work schedule changed so that she would not have to team up with Mr. Loyer. The July 22 incident, when Mr. Loyer said that he did not want to see Ms. Nadon, was the last straw.
[13] The grievor called as witnesses Sylvie Gagnon, Isabelle Veaugeois, Gaétan Blanchard, Jacques Grenier, Andrew Cathcart, Denis Fontaine and Claude Lacoste.
[14] The female employees indicated that they had no problem working with Mr. Loyer even though he, like the other male co-workers, sometimes made jokes about women.
[15] A co-worker, Mr. Fontaine, thought that Ms. Nadon and Mr. Loyer should have resolved their difficulties between themselves. In August 1997, he sent a letter to the employer in which he described the July 22 incident and made some comments. In the letter (Exhibit F-2), he wrote:
[Translation]
.
In the light of her strong reaction, I suggested that she meet with him and settle the matter with him. But she does not want to hear about this; she is determined to report him for harassment.
I find the strength of Ms. Nadon's reaction somewhat off-kilter and consider it more as a personality conflict, of which I was the humble victim, caught between two people who were unwilling to talk to or see each other.
..
[16] Mr. Lacoste though that Ms. Nadon was somewhat insecure in respect of the inmates; he tended to think that, in order to cover herself, Ms. Nadon would not hesitate to shift responsibility to another co-worker.
[17] A sign with the word "mole" was put up in the employees' locker room. According to the witnesses, the sign was aimed at Ms. Nadon, who was criticized for being "tight" with the administration. There is nothing in the evidence to identify the individual who put up the sign. It does not appear that any investigation was made in connection with this incident.
[18] Mr. Loyer believed that he could not have harassed Ms. Nadon since he did not talk to her. Regarding the lost radiotelephone, Mr. Loyer thought that Ms. Nadon could have given him a little time to report it since he had told her he remembered where the radiotelephone had been left.
Arguments
[19] The employer maintained that any contemptuous behaviour towards an employee was unacceptable. In Mr. Loyer's case, this was not an isolated act but an attitude of contempt and silence towards Ms. Nadon that continued over several years.
[20] According to Mr. Loyer's representative, Ms. Nadon had a reputation for complaining to the administration. She felt insecure with respect to the prisoners and she allegedly inflated the July 22 incident because she had problems working with Mr. Loyer.
Reasons
[21] On reading the investigation report and in the light of the testimony, there is no doubt that Mr. Loyer's attitude towards Ms. Nadon is wrong and constitutes harassment. Although July 22 was the culminating event, the investigators noted that the harassment had gone on for a number of years. Mr. Loyer's argument in defence when he said he could not harass Ms. Nadon since he did not speak to her cannot succeed. The investigators highlighted in the conclusion to their report that harassment can result not just from actions but also from a negative attitude, such as a lack of communication or silence.
[22] In her complaint to the administration on July 24, 1997, Ms. Nadon emphasized that she had asked Mr. Loyer to respect her as a woman and as a person.
[23] It appears to me that, during the investigation, Ms. Nadon wanted to place in evidence the fact that Mr. Loyer harassed her because she was a woman.
[24] However, during the hearing, a number of female employees stated that they had no problem working with Mr. Loyer.
[25] What was at the heart of the problem was that Mr. Loyer had a personal conflict with Ms. Nadon because she had reported him to the employer regarding the loss of a radiotelephone ("Radio Charly") in 1995-96.
[26] In the letter he wrote to the administration on August 1, 1997, the officer, Denis Fontaine, directly stressed that there was a personal conflict between Ms. Nadon and Mr. Loyer. By this statement, Mr. Fontaine underscored his opinion that there was a conflict between Mr. Loyer and Ms. Nadon, which caused Mr. Loyer to give her the silent treatment and belittle her.
[27] Mr. Loyer criticized Ms. Nadon because she had indicated in her report on the equipment used during a shift that Mr. Loyer had mislaid a radiotelephone.
[28] In a prison environment, it is important to follow up on losses of equipment, be they radiotelephones, billy clubs, belts or something else. It is essential that the officers complete the equipment reports accurately. In indicating in her report that a piece of equipment had been lost ("Radio Charly") by Mr. Loyer, Ms. Nadon was only doing her duty.
[29] This report did not please Mr. Loyer; he would have preferred that she not mention the loss of the radiotelephone and given him time to report it.
[30] In retaliation, Mr. Loyer refused to talk to Ms. Nadon. What is more, on July 22, 1997, he definitely told another officer that he did not want to see Ms. Nadon.
[31] In my opinion, the investigators should have accorded greater importance to the cause of the harassment, which was intended as a kind of retaliation against an officer who had reported the faults of another officer, instead of focusing on the relationship between a male and a female employee.
[32] In any event, Mr. Loyer's conduct and behaviour towards Ms. Nadon were completely unacceptable, and the disciplinary action imposed on him by the employer was justified.
[33] For these reasons, I dismiss the grievance.
Jean-Pierre Tessier,
Board Member
OTTAWA, March 1, 2004.
P.S.S.R.B. Translation