FPSLREB Decisions

[1]    Martin Cyr has been a Parks Canada employee since 1983. During the summer of 2003, he received three disciplinary sanctions.

[2]    This file deals with the grievor's comments and actions during the summer of 2003 that were offensive to other employees to the point where, according to the employer, they constituted sexual harassment. On September 3, 2003, Mr. Cyr received a suspension without pay for a period of 16 working days, or 160 hours.

[3]    On September 4, 2003, Mr. Cyr filed a grievance opposing this sanction. On February 27, 2004, the grievance was sent to adjudication and the hearing was held in October 2004. The evidence adduced at the hearing also dealt with the other two files that will be the subject of separate decisions.

The Facts

[4]    Mr. Cyr works at Havre-Saint-Pierre where Parks Canada operates the Mingan Islands tourist site. Parks Canada vessels are used to transport employees to the islands to provide animation services and to act as tourist guides.

[5]    Several boats are used to carry the animators-guides to the islands. In the instant case, a team of five to six people travelled two to three times a week on the boat to which Mr. Cyr was assigned. The travel time is about 15 to 20 minutes. There is a captain on the boat, who sits in the pilothouse, and Mr. Cyr acts as a maintenance and security clerk. He looks after the maintenance and cleanliness of the docks and washrooms, as well as security on board the boat (tying up and casting off and storage of material transported by the guides).

[6]    The animation-guide team consists in part of young people working the summer under the Young Canada Works Program. These individuals mainly come from outside the region, although young residents of Havre-Saint-Pierre are also hired. These guides, in the case before us, are mostly young women between 18 and 25 years, along with a slightly older female coordinator.

[7]    Two young female guides, who were living for the summer with a female Parks Canada employee in Havre-Saint-Pierre, talked among themselves towards the end of July 2003. Their conversations focused on the fact that they were uncomfortable travelling on the boat where Mr. Cyr worked.

[8]    The Parks Canada employee reported the nature of this conversation to the administration. Marie Lachance questioned a few of the animators-guides and determined that these employees had some criticism of Mr. Cyr's conduct. In light of these facts, Pierre Kavanagh, Director, Technical Services, informed Stéphane Marchand, Director of the Mingan Islands Park, of the situation.

[9]    Mr. Marchand assigned the administrative investigation to two employees, namely, Michèle Boucher and Marie Lachance. On July 31, 2003, the Director informed Mr. Cyr that the administration was proceeding with an investigation of the facts and of the inappropriate actions for which he was allegedly responsible (Exhibit E-9).

[10]    On August 15, 2003, Mr. Marchand informed Mr. Cyr that a meeting would be held on August 21, 2003 (Exhibit E-10), so that Mr. Cyr could explain the facts and actions alleged against him. A detailed list of the alleged actions is contained in the letter, the content of which is as follows (the names were removed from the copy adduced at the hearing for purposes of confidentiality. I have substituted the letters A to F for reference purposes).

[Translation]

Dear Mr. Cyr:

As mentioned earlier, here is a description of the facts and actions alleged against you. This approach will make it easier for you to prepare for our meeting on August 21, 2003.

Description of the alleged facts and actions:

• Early in July 2003, you allegedly took a bottle of Pepsi from between the legs of "A". At the time of this event on board the vessel "Rorqual Bleu", your head and hands were allegedly between her two legs. This action was apparently repeated more than once.

• Early in July 2003 (a Sunday), "B" allegedly asked you to wait a few minutes (at Île Niapiskau) so that he could finish a discussion with a colleague. You allegedly cast off from the dock acting as though you were going to leave him on the island. When you came back, you allegedly asked him to jump into the boat without tying it up. You then said that you had to go sleep at Île Quarry.

• Early in July 2003 (a Wednesday), you allegedly placed you hand on "C"'s knee without apologizing.

• During the week of July 14, 2003, "D" allegedly made a hand gesture to you (a downward gesture) to tell you that she had a problem with her radio. You allegedly repeated the gesture simulating masturbation and allegedly said "See you in the morning...".

• On board the "Rorqual Bleu", you allegedly stared at the chests of some women while scratching yourself and/or placing your hand on your genital organs. In addition, "E" states that you allegedly made certain comments at the end of June 2003. You allegedly said to her that she had nice legs and, noting some scratches on her legs, you said to her "Who did that to you?" You allegedly went on to say "Anyway, I would not hurt you".

• "F" states that you often looked at her up and down and stared at her.

• When "G" was walking from the back to the front of the boat, you allegedly patted her on the buttocks. She allegedly immediately said to you "Do not touch my bottom". "G" also says that you often scratch your genital organs.

[11]    When he met with the Director, Mr. Cyr said that he did not remember these events. He agreed that if the employees felt offended, he was prepared to apologize. On September 3, 2003, Mr. Marchand informed Mr. Cyr that he was imposing a 16-day suspension without pay for these events (Exhibit E-11).

[12]    The persons in question testified at the hearing. Employee "A" confirmed the incident regarding the soft drink bottle that Mr. Cyr retrieved from under the bench where she was sitting. From the photographs adduced (Exhibit E-2 and E-3), it is evident that this is a raised bench located to the left of the cabin. To get at it, it is necessary to walk up a step and then there is a sort of shelf under the seat. Generally, Mr. Cyr puts tools, equipment and his personal belongings in this location (soft drinks, lunch, etc.).

[13]    Without warning or even excusing himself, Mr. Cyr went to retrieve his soft drink bottle. He was quite bent over because the employee saw Mr. Cyr's head close to her legs. She said that she felt uncomfortable. However, on subsequent crossings, she continued to sit in the same location. On the question of frequency, witness "A" did not relate any incident where Mr. Cyr allegedly approached her as closely to get things from under the bench. The offended and uncomfortable employee said that Mr. Cyr allegedly did not excuse himself.

[14]    Employee "C" described an incident where, while walking in the space between the captain's seat and the bench, Mr. Cyr allegedly leaned on her knee. She said she was frustrated that Mr. Cyr did not apologize.

[15]    Employee "D" described the hand gesture that Mr. Cyr allegedly made when she was shaking her radio as she came onto the boat. She said she had difficulty remembering this incident. She has known Mr. Cyr for several years and she did not see anything aggressive in this event. She felt it was a joke between colleagues.

[16]    Employee "E" said that she felt uncomfortable when Mr. Cyr looked at her. She felt she was being examined from head to toe and that he was staring at her chest. The employee stated that she and at least one other female employee preferred to go to the front of the boat during the crossing so as not to be observed by Mr. Cyr. In addition, she commented that Mr. Cyr had the habit of scratching himself in the area of his genital organs.

[17]    Employee "E" confirmed the incident where Mr. Cyr made a comment on the fact that she had scratches on her legs. He made an inappropriate comment, indicating that he would not hurt her.

[18]    Employee "F" provided the same testimony as employee "E". She felt uncomfortable being stared at by Mr. Cyr.

[19]    Employee "G" confirmed the incident in which Mr. Cyr allegedly patted the life jacket she was wearing in the area of her buttocks. She said that she saw an arm movement and felt herself being slapped on the bottom of her life jacket. When she reported these facts to the employer, in August 2003, she was unaware, as were the other employees, whether the interview was in connection with a complaint filed against Mr. Cyr.

[20]    Employee "B" confirmed the incident of July 2003 when Mr. Cyr asked him to hurry up and get in the boat. The boat moved away from the dock and then came back. Mr. Cyr asked the employee to jump into the boat without tying it up. Mr. Cyr allegedly said that he wanted to go sleep at Île Quarry.

[21]    Once on the boat, Mr. Cyr asked him about the "girls" on the team. He asked him what he would do if he found himself alone on an island with one of them. Mr. Cyr said that if he were in that situation, he "would not hurt the girl".

[22]    The employee mentioned that when he got off the boat at Île Quarry, he saw the boat's captain and Mr. Cyr go to bed.

[23]    Lastly, the park's Director, Stéphane Marchand, explained what happened during the meeting on August 20, 2003, with Mr. Cyr and a union representative. According to Mr. Marchand, Mr. Cyr provided few explanations; he did not remember the actions alleged against him. It is true that, on this occasion, Mr. Cyr mentioned that he was suffering from a groin irritation problem. He allegedly unbuttoned his pants and exposed the upper part of his thigh, which was red. Mr. Cyr allegedly said that he never intended to harass the employees and that if some felt that he had done so, he was prepared to apologize.

[24]    Mr. Marchand subsequently consulted staff relations officials. It was clear to him that Mr. Cyr's actions had made the employees on board the boat uncomfortable. Mr. Cyr was constantly on the defensive during the meetings. That is why he imposed a 16-day suspension without pay on him.

[25]    In cross-examination, Mr. Marchand admitted that a copy of the harassment policy was posted in August 2003. The letter of sanction relating to these events was given to Mr. Cyr on September 3, 2003. The facts relating to this meeting will be dealt with in the decision on grievance 166-33-33267, regarding inappropriate language and threats that Mr. Cyr allegedly made to his superiors.

[26]    For his part, Mr. Cyr mentioned that he never intended to make anyone uncomfortable. He is quite taken aback by this situation because, in the summer of 2002, he performed the same work and at the end of the summer, the employees he had socialized with gave him a congratulatory letter (Exhibit F-1).

[27]    He admitted that he scratched his groin area and mentioned that some of his colleagues gave him a hard time about it. His actions are the result of a skin irritation. He adduced a medical certificate (Exhibit F-3).

[28]    He believes that his actions and comments during summer 2003 have been exaggerated. He stated that he was prepared to apologize if he had offended some people.

[29]    Yvon Méthot, the union representative, corroborated Mr. Cyr's testimony regarding the fact that during the meeting with management, Mr. Cyr stated that he did not intend to harass anyone but that if that was the case, he was prepared to apologize.

[30]    Mr. Méthot testified that he discussed with Mr. Cyr the report of the meeting on August 20, 2003, and that he noted that the report did not mention the fact that Mr. Cyr was prepared to apologize.

Arguments of the parties

[31]    The employer refers to several arbitral awards on harassment. It argues that the evidence is convincing and that there is do doubt about the sincerity of the employees who felt intimidated by Mr. Cyr's comments and actions.

[32]    The employer is required to maintain a harassment-free workplace and there must be sanctions for any inappropriate actions.

[33]    For his part, the grievor's representative argues that the comments and gestures ascribed to Mr. Cyr must be placed in their context. There is no formal complaint and it is important to consider the matter within the context of all of the facts adduced.

[34]    There is some tension between the Director and Mr. Cyr, which may have clouded his perspective and led to an overly severe sanction.

Reasons for decision

The facts concerning this matter took place in the summer of 2003. Over the past decade, the public has broadly debated harassment issues in general and especially in the workplace.

[35]    In the instant case, the employer has developed a harassment policy. The disclosure of the policy to employees and the identification of the persons responsible for its application in the workplace are assets that make it possible to prevent or sanction any action that is disrespectful to individuals.

[36]    Even without formal notice, all reasonable persons must refrain from harassing another employee in the workplace. Negative actions must be sanctioned, while ensuring that circumstances are taken into account.

[37]    The evidence reveals that the harassment policy was posted in August 2003. It was not specified whether the employer had identified an individual to ensure its application.

[38]    We are dealing with young people, employed for the summer. Some of them come from towns and cities outside Havre-Saint-Pierre. They are required to travel on a boat where there is limited space and where people are often close to one another. It would have been useful if the employer had informed the employees at the start of the job that there was a harassment policy and had identified a person in administration who was responsible for its application.

[39]    Despite this preamble, I believe that all reasonable persons must refrain from making intimidating or harassing gestures to other employees even if the employer has not developed a harassment policy.

[40]    The most eloquent testimony regarding intimidation and harassment was that of the witnesses identified as "E" and "F", who stated that they felt uncomfortable when Mr. Cyr stared at them from head to toe. This attitude upset them to the point where they preferred to remain at the front of the boat during crossings.

[41]    To this I would add the point that Mr. Cyr made inappropriate comments to employee "E" regarding the scratches on her legs and that he would not hurt her.

[42]    In the other instances, it does not seem to me that the employees identified the actions or comments by Mr. Cyr as acts of harassment.

[43]    Indeed, employee "A" said that she found it inappropriate and impolite that Mr. Cyr went to get a soft drink under the bench she was sitting on. However, the employee confirmed that she continued to sit in the same place afterwards and she never told Mr. Cyr that she found his actions offensive.

[44]    An employee deplores the fact that while walking on the boat, Mr. Cyr regained his balance by leaning on her knee. It is noted that during summer 2003 and summer 2002, this is the only time such an action occurred. It is difficult to conclude that it was intentional, as might be the case if Mr. Cyr had, on several occasions, pretended to lose his balance.

[45]    Mr. Cyr's comment to employee "D", regarding the radio she was shaking, is described by the employee herself as a joke. She says that she never felt harassed or intimidated.

[46]    The patting of employee "G"'s life jacket represents an isolated action, which did not appear to me to have intimidated the employee.

[47]    The comments exchanged with employee "B" appear to be discussions between colleagues. These comments, on the appearance of young women transported on the boat, are inappropriate and confirm that Mr. Cyr had looked at them carefully and perhaps had stared at them.

[48]    Lastly, as to the fact that Mr. Cyr was often scratching his groin, his argument in his defence is that he had a skin disease and that his male colleagues teased him about it. Mr. Cyr should have given some thought to the comments from his male colleagues. He was aware that he was doing this; he could have acted more discreetly when in the presence of young female employees.

[49]    Mr. Cyr should have been more aware of his actions. However, I believe he is sincere when he says he wants to apologize if he offended anyone.

[50]    I have reviewed the case law adduced by the parties. It shows that the sanctions vary from case to case and that the circumstances must be taken into consideration.

[51]    In Floyd Joss v. Treasury Board (Agriculture and Agri-Food Canada) , 2001 PSSRB 27, there is an exhaustive examination of the concept of harassment and it is interesting to recall the following passages:

In paragraph 61, the adjudicator notes that, germane to the issue of what constitutes harassment are Arbitrator Laing's comments in Re British Columbia and B.C.G.E.U. (1995), 49 L.A.C. (4th) 193, at pages 242-243:

I do not think that every act of workplace foolishness was intended to be captured by the word "harassment". This is a serious word, to be used seriously and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by any objective standard, is fleeting.

[52]    In Janzen and Govereau v. Platy Enterprises et al., [1989] I S.C.R. 1252, Supreme Court Chief Justice Dickson required a practical definition of sexual harassment. After reviewing the case law and documentation on the issue in the United States and Canada, he concluded at page 64 :

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

[53]    Referring to the ruling of Dickson C.J., Adjudicator Smith writes in Floyd Joss (supra):

I believe this approach to sexual harassment is applicable to non-sexual harassment. Mere unwelcome conduct in itself is not sufficient to support a complaint of harassment.

[54]    Given the smallness of the boat that the employees were required to use to travel to the islands, the employer should have done a better job of making its harassment policy known.

[55]    I must also consider that the main complaint levelled against Mr. Cyr is that he stared at the employees to the point where several of them felt uncomfortable. Several events refer more to unwelcome conduct than to harassment.

[56]    I believe that the employer should have considered the reports it received and the circumstances in which they were made.

[57]    Given the circumstances, I believe a 16-day sanction, of 160 hours, seems too harsh. A four-day suspension seems appropriate to me and constitutes sufficient warning to ensure, in future, a workplace that is free from such actions of intimidation and harassment.

[58]    I allow the grievance in part by substituting for the sanction imposed by the employee a four-day or 40-hour suspension without pay.

Jean-Pierre Tessier
Board Member

OTTAWA, February 10, 2005

P.S.S.R.B. Translation