FPSLREB Decisions

[1]    Sexual harassment between a supervisor and a subordinate during working hours will very likely attract some form of discipline, as Kevin Albert found out when, on February 20, 2002, he received a five-day suspension. He grieved, on April 5, 2002, and requested that the suspension be replaced with a letter of reprimand.

[2]    At the outset of the hearing, counsel for the employer requested that the complainant not be identified by name in this decision. Mr. Hill, on behalf of the grievor, had no objection to this request and, as a result, the complainant will be identified as Ms. "X".

[3]    On consent, the employer's Policy Against Harassment in the Work Environment was tabled (Exhibit E-2), as well as the collective agreement provision on Sexual Harassment (Exhibit E-3).

[4]    There was no disagreement on the facts of the case; therefore, the parties were able to proceed by way of an Agreed Statement of Facts (Exhibit E-1). This document reads:

Agreed Statement of Facts in Albert Grievance (166-34-33026)

[1] In March, 2000, the grievor (Kevin Albert) was employed in the capacity of Financial and Administrative Officer (acting AS-02 level) in the "DSD team", a unit of the Information Technology Branch in what is now the Canada Revenue Agency.

[2] In March, 2000, Ms. X ("the complainant") was an Administrative Assistant in the DSD team. Kevin Albert was her direct supervisor. The complainant was a term employee.

[3] Prior to March, 2000, there had been some difficulties in terms of the working relationships between members of the DSD team, including the grievor and the complainant. The complainant felt that her attempts to raise her concerns in this regard had been met with hostility or indifference. During this period, the complainant had experienced health problems, some of which were stress-related, and the complainant had recently been off work on leave related to these problems. The grievor was aware of these facts.

[4] In March 2000, the DSD team held a luncheon at a local restaurant and bar. The luncheon was held during working hours as a "team-building" initiative for the DSD team. Both the grievor and the complainant attended this event.

[5] During the aforementioned luncheon, some members of the DSD team, including the grievor and the complainant, consumed alcoholic beverages. At the conclusion of the luncheon, the complainant suggested that she and the grievor remain at the restaurant to talk about the ongoing issues concerning the DSD team. The grievor agreed and he and the complainant remained in the restaurant after the rest of the DSD team had left.

[6] Mr. Albert indicated to the complainant that he hoped the post-luncheon meeting would lead to better understanding and a friendlier relationship between them, and within the DSD team.

[7] During the post-luncheon meeting, the grievor and the complainant consumed several more alcoholic beverages.

[8] During the post-luncheon meeting, the grievor indicated to the complainant that he thought there was a sexual attraction between them and that they should act on this attraction. The complainant reminded the grievor that they were both married.

[9] During the post-luncheon meeting, the grievor suggested to the complainant that they go to the washroom of the restaurant and engage in sexual relations. The complainant refused this suggestion.

[10] Following his suggestion that they go to the restaurant washroom, the grievor continued to talk about the alleged sexual attraction between the two parties, touched the complainant's leg, and attempted to unbutton her blouse. The complainant continued to deny the grievor's advances.

[11] The post-luncheon meeting between the grievor and the complainant ended when the complainant's husband arrived to pick her up from the restaurant as previously arranged.

[12] On the day following the DSD team luncheon, the grievor approached the complainant, acknowledged that his behaviour the previous day had been inappropriate, and indicated that he had been under the influence of alcohol and that the behaviour was uncharacteristic for him. The grievor considered this conversation to be an apology and to have resolved the matter.

[13] Although the complainant initially indicated to management that she could move on from the incident and did not wish to pursue the matter, she made a formal, written complaint to the employer concerning the grievor's behaviour on January 29, 2001. Shortly thereafter, the grievor was informed by the employer that the complainant's complaint would be investigated.

[14] The employer retained an independent investigator to investigate the complainant's complaint. The investigation began in June 2001, and an initial report was submitted in August 2001. The investigator's final report was submitted on October 3, 2001.

[15] During the investigation, the investigator interviewed both the grievor and the complainant. The grievor cooperated fully with the investigation. In his statements to the investigator, the grievor fully acknowledged the events of the March 2000 luncheon as recounted by the complainant, and as detailed in this statement of facts.

[16] Following the receipt of the investigator's report, the employer notified the grievor that it had concluded that the complainant's allegations regarding the March, 2000 luncheon were founded, and that the employer would be considering appropriate disciplinary action.

[17] A meeting to discuss disciplinary measures was held February 20, 2002, at which the grievor and his union representative were present, as well as members of management. Following this meeting, the grievor was suspended for five days without pay, effective February 21 to February 27, 2002.

[18] To the employer's knowledge, other then [sic] the incident described above, the grievor has not been involved in any other incident of sexual harassment in the workplace. There are no other recorded disciplinary measures from the grievor's 14 years of service with the employer.

[19] The grievor admits that his behaviour during the March, 2000 DSD team luncheon was inappropriate.

[5]    The letter of suspension was signed by Catherine St. George. She testified that she took into account the work environment, Mr. Albert's length of service and his record, the seriousness of the event, the fact that he apologized and the impact that the event had on the complainant in deciding the quantum. She was aware of similar cases that had a greater length of suspension but, because of the various mitigating factors in this situation, Ms. St. George felt that a minimum length of suspension was more appropriate.

[6]    Mr. Albert testified that the incident took place due to the consumption of alcohol, and his actions were not normal. He has worked with his current employer for 14 years and has never been disciplined.

[7]    The grievor's representative asked him what he had learned from this incident, and Mr. Albert replied, "Never drink at work. As a supervisor, I would never let it happen again because of the repercussions".

Argument of the Employer

[8]    At issue here is whether the five-day suspension was reasonable given the facts. The employer has a moral and legal duty to deal with sexual harassment, and it has done so here.

[9]    The grievor made a blatant sexual proposition to an employee under his supervision and touched her inappropriately. The complainant was a vulnerable employee, having had some health issues, as well as being a term employee. The grievor was aware of these facts.

[10]    The grievor has not acknowledged the seriousness of his actions. Even now, he says the lesson he has learned is not to drink at work.

[11]    The employer was fully aware of the mitigating factors involved here when it decided quantum. They should not be considered again.

[12]    Counsel for the employer referred to the following cases: Young and Treasury Board (Indian and Northern Affairs Canada) , PSSRB File No. 166-2-28274 (1999) (QL), Lavoie and Treasury Board (Solicitor General Canada - Correctional Service) , PSSRB File No. 166-2-18953 (1989) (QL), Teeluck and Treasury Board (Solicitor General - Correctional Service Canada) , PSSRB File No. 166-2-27956 (1998) (QL).

Argument for the Grievor

[13]    In the Agreed Statement of Facts, at point number 13, the complainant stated she did not want to pursue the matter after Mr. Albert apologized to her. This was probably due to the fact that Mr. Albert apologized to her the very next day, after the events took place.

[14]    In Canadian Labour Arbitration, Third Edition, at section 7:4400, authors Brown and Beatty discuss mitigating factors. They are:

1. The grievor's good record.

2. Long service.

3. Was the offence an isolated incident.

4. Provocation.

5. Was it a spur of the moment offence, as a result of strong emotional impulses.

6. Has the penalty created economic hardship.

7. Evidence that company rules were not enforced uniformly, thus constituting a form of discrimination.

8. Circumstances negating intent.

9. The seriousness of the event.

[15]    The grievor had lengthy service with his employer; he had a clean record; this was an isolated incident; it was a spur of the moment occurrence brought on by alcohol and he issued a prompt reply. All of these should mitigate against the penalty imposed.

[16]    Counsel for the grievor referred to the following cases: Belanger (1992), PSSRB File Nos. 166-2-21268 and 166-2-21269; Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America in Re Sandwich, Windsor and Amherstburg Railway Company (1951), 2 L.A.C. 684.

Decision

[17]    The parties proceeded by way of an Agreed Statement of Facts as the events were not in dispute. The issue I must decide is, given these facts, was the employer's disciplinary response of issuing a five-day suspension inappropriate?

[18]    The employer's policy against harassment in the work environment (Exhibit E-2) was known to the grievor. The policy states, at page 2:

Supervisors/managers must:

provide a work environment free of harassment and promote a zero-tolerance level of harassment.

[19]    The policy defines sexual harassment as:

Sexual harassment means any conduct, comment, gesture, or contact of a sexual nature, whether on a one-time basis or in a continuous series of incidents:

• that might reasonably be expected to cause offence or humiliation to any employee; or

• that the employee might reasonably perceive as placing a condition of a sexual nature on employment or on an opportunity for training or promotion.

[20]    Mr. Albert supervised Ms. "X" and he had an obligation to promote a zero-tolerance level of harassment. There can be no doubt that Mr. Albert's actions, as outlined in paragraphs 8, 9, and 10 of the Agreed Statement of Facts, can be considered sexual harassment.

[21]    Mr. Hill argued, on behalf of the grievor, that a number of mitigating factors are present here which should be taken into account. I agree with this, and so does the employer. Ms. St. George stated that she looked at case law which suggests a penalty greater than five days would be appropriate, but these same mitigating factors that Mr. Hill cited were considered by Ms. St. George. She ultimately felt five days was appropriate when all factors were taken into consideration.

[22]    While mitigating factors are issues that should be considered, once it has been shown to me that the employer did consider them, it would not be appropriate for me to consider them again and further reduce what I feel is an appropriate penalty in these circumstances.

[23]    Any disciplinary action should be designed to be corrective. What did Mr. Albert learn from this incident? He stated that he learned that he should not consume alcohol at work. While that is no doubt a good thing to know, Mr. Albert was not disciplined for drinking on the job. One would have hoped that the lesson he learned was that sexual harassment is wrong. Period. What he did was wrong.

[24]    I heard that Mr. Albert's actions were out of character and I have no reason to doubt that. He certainly has not repeated his actions, so in that regard he has learned his lesson. However, given these facts, I believe the employer's response of issuing a five-day suspension is appropriate, and I see no reason to mitigate the penalty any further.

[25]    For all of these reasons, the grievance is denied.

Joseph W. Potter,
Vice-Chairperson

Ottawa, January 24, 2005.