FPSLREB Decisions

The grievor, a border services officer (BSO), grieved the employer’s decision to terminate him on the basis that he engaged in inappropriate, unwanted, and harassing behaviour of a sexual nature toward a young student border services officer (SBSO). The discipline arose out of a single, on-duty incident in which the SBSO complained that the grievor engaged her in an intrusive and sexualized conversation, invaded her personal space, and made an inappropriate sexual request and a vague, sexualized threat. The grievor presented a very different version of events, denying that he engaged in harassment or sexual harassment and arguing that he was the victim of the employer’s zero-tolerance approach to sexual harassment. Given the parties’ starkly different versions of the events, the outcome turned on credibility. Applying the test in Faryna v. Chorny, 1951 CanLII 252 (BC CA), the Board found that the grievor’s evidence was not credible. It accepted the SBSO’s evidence in its entirety and found that the grievor’s behaviour constituted sexual harassment and was a flagrant breach of the employer’s Code of Conduct and the Values and Ethics Code for the Public Sector. The Board also rejected the grievor’s characterization of his actions as mere “sexual annoyance”, finding that such categorizations are inconsistent with modern views of what is acceptable in the workplace. His behaviour did fall at the lower end of the sexual harassment “spectrum”, but termination was justified, given the many aggravating factors. The grievor was in a position of trust generally and a position of power relative to a young, vulnerable SBSO. His behaviour had a lasting impact on her and the employer’s efforts to recruit and retain young women. The grievor also lacked honesty and remorse and had little insight into his actions, which left the Board with little confidence that he was unlikely to reoffend if he returned to the workplace. The Board also explained its earlier decision to, at the employer’s request, not identify the complainant by name and to redact her name from the Board’s file and record. Concealing the identity of a sexual harassment victim protects important public interests and is a limited intrusion on the open court principle.

Complaint dismissed.