IN the MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
re: DISCHARGE GRIEVANCE OF ANDREW PROUSSAEFs
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
M. L’Esperance – National Representative, Toronto
R. Johnson – President, Council 4000
A. Proussaefs – Grievor
G. Proussaefs Powers – Observer
S. Adornato – Witness
J. Amenta – Witness
Appearing For The Company:
J. Coleman – Counsel, Montreal
K. Laviolette – Manager, Labour Relations, Montreal
Hearings in this matter were held in Toronto on March 9 and 25, 1998.
This arbitration concerns the grievance against discharge filed by Mr. Andrew Proussaefs, who was dismissed from service on August 25, 1997 for alleged sexual harassment, conduct unbecoming an employee and assault. The grievor denies any wrongdoing and seeks reinstatement into his position, with compensation for all wages and benefits lost.
Mr. Proussaefs, who commenced employment with the Company in or about 1988, was employed as a rate representative in the Company’s Revenue Management department in Montreal at the time of the events giving rise to this grievance. Also employed within the same office, as a revenue management analyst, was Ms. St-Louis. Ms. St-Louis was first hired in June of 1994, and initially encountered the grievor when they worked together on weekend and evening shifts in the Montreal Customer Service Centre. It appears that commencing in May of 1996 Ms. St-Louis moved to the Revenue Management Centre, located initially in Place Bonaventure and later relocated to 1060 University Avenue, in Montreal. Mr. Proussaefs also transferred to the Revenue Management Centre, and for a period of time, running from May to December of 1996, the grievor and Ms. St-Louis enjoyed a friendly relationship. Although their work locations were not close, it is not disputed that on a regular basis Ms. St-Louis would stop by the grievor’s work area in the morning, as she deposited her lunch in the adjacent kitchen area, where she would speak in an office-social way with Mr. Proussaefs and others in his immediate work area. According to Ms. St-Louis’ evidence, matters remained cordial between herself and Mr. Proussaefs for some time after they moved to the Revenue Management Centre. It is not disputed that she took an interest in Mr. Proussaefs’ hobby of collecting vintage comic books, and began to purchase them from him for her children. The evidence also discloses that Ms. St-Louis, who had an interest in photography, sometimes showed some of her photographic work to the grievor, as well as to other employees in his section. The evidence also establishes that Ms. St-Louis occasionally sent recipes to the grievor’s wife, and that both employees participated in normal office social occasions, such as Christmas parties and luncheons, and saw each other in the Company of others, during lunch breaks, in a nearby cafeteria.
Ms. St-Louis relates that at a certain point in time, after purchasing the comic books from the grievor for approximately three months, she told him that she was no longer interested in doing so. She relates her belief that the friendship between them began to sour from that point onwards. According to her evidence, in or about the second week of December, 1996, while she was speaking with employee Joe Amenta, the grievor approached and asked what she would be wearing to the Christmas party, indicating that his wife wanted to know. When she responded that she would wear a long black velvet dress with a low-cut back, according to her evidence Mr. Proussaefs’ responded by questioning why she should hide her legs, because they were the only nice thing about her, adding “its not like you have any tits to show off”. Ms. St-Louis related that she was offended by the comment. She elaborated that it was not uncommon for the employees in the office, including herself, to engage in the exchange of jokes with a sexual content. Such jokes, she explained, were never aimed at any individual, however, and she was therefore surprised and disturbed by the fact that the grievor would direct such a comment specifically at her. She took the matter no further, save to make a response to the effect that she did not understand how his wife could put up with him.
A second incident related by Ms. St-Louis occurred in January of 1997. According to Ms. St-Louis she was then speaking to employee Joe Amenta at his desk, when the grievor rose from his nearby desk and approached her, asking her to open her blazer, adding: “You have no tits, I have more tits than you have” in a laughing tone. As he did so he flexed his arm muscles and made his chest expand. She states that this prompted her to call him an insulting name, which she admits was crude in nature, which caused him to react by shoving her. There appears to be little dispute that the force of the impact caused Ms. St-Louis to be propelled backwards into a filing cabinet. Ms. St-Louis further relates that after he shoved her into the filing cabinet Mr. Proussaefs made a comment to the effect that men are always stronger than women saying “I’m stronger than you are, don’t you ever forget that.” Ms. St-Louis relates she then felt afraid of the grievor, realizing for the first time that he could be dangerous and impulsive.
The next incident related by Ms. St-Louis occurred in or about March of 1997, shortly before she was transferred, along with the entire Revenue Management Centre, to Toronto. She states that during the course of a fire drill exercise, as the employees were filing back into the building at its conclusion, Mr. Proussaefs walked back into the building several feet behind Ms. St-Louis, speaking to fellow employee Sergio Adornato. As they walked she overheard Mr. Proussaefs say quite audibly to Mr. Adornato, about Ms. St-Louis: “Still sucking her tits? You still want to fuck her …?” Overhearing the comment in the presence of others, Ms. St-Louis felt shock and humiliation.
Ms. St-Louis relates that at the time of that incident, although she felt a degree of fear of the grievor, she decided not to complain, for several reasons. She states that she had much going on in her own life, being involved in studies, and preparing for her move to Toronto, along with her family. According to her evidence it was simply too much to contemplate taking on the issue of complaining of Mr. Proussaefs’ conduct. Moreover, she hoped that the situation would improve, to the extent that she was going to Toronto first, and that he would remain in Montreal, only to be moved considerably later, in the staged transfer of the Revenue Management Centre.
The final and triggering incident occurred after Ms. St-Louis moved to Toronto. She relates that during the course of her employment in Toronto she had occasion to speak with a Toronto-based employee, Frank Sakalinis. When Mr. Sakalinis inquired as to how she liked working in Toronto, she responded that she enjoyed it, but that her only concern was that with the move of the final group of employees from Montreal to Toronto scheduled for September of 1997, she would be compelled to work once again in the company of Mr. Proussaefs. She explained to Mr. Sakalinis that he was a loud and obnoxious individual who did not make her feel safe. She gave no other details. At that point Mr. Sakalinis confided in Ms. St-Louis that he had in fact had prior occasion to speak with Mr. Proussaefs by telephone on or about July 21, 1997. It appears that he had reason to speak with Mr. Proussaefs on a rate matter, and had had no prior contact with him. During the course of their telephone conversation, as Mr. Sakalinis related to Ms. St-Louis, and later testified before the Arbitrator, Mr. Proussaefs asked whether he knew Ms. St-Louis, and whether he was married. When he responded that he was not married, the grievor responded that if he was looking for someone to ask out Ms. St-Louis would be “easy”. Pressed further, at the arbitration hearing, he indicated that the grievor may have specifically referred to her as being “a slut”. According to Ms. St-Louis’ recollection of her conversation with Mr. Sakalinis, he told her that Mr. Proussaefs had said about her: “If you want to do her, she’s easy. She’s the office slut.”
Ms. St-Louis relates that she was stunned when she heard this account from Mr. Sakalinis. Feeling that he had no right to degrade her as a person and slander her reputation, she determined that she would no longer put up with Mr. Proussaefs, whom she then perceived as “the office bully who was pursuing me in Toronto.” She then made an official complaint to Company supervisors, resulting in a disciplinary investigation of Mr. Proussaefs for sexual harassment of Ms. St-Louis.
Much of the evidence given by Ms. St-Louis is corroborated by other witnesses, albeit with some variance in nuance and detail. Mr. Adornato confirmed that during the fire drill Mr. Proussaefs did make the comment to him related in the evidence of Ms. St-Louis. In Mr. Adornato’s view, that should not have been construed as an insult to her, but rather as an insult to him. Employee Joe Amenta confirms that he witnessed the grievor pushing Ms. St-Louis into the file cabinet. As he relates the incident, he and Ms. St-Louis may have been talking about physical fitness, an area in which he is a consultant, when the grievor arrived and began to flex his muscles. As he recalls the incident, when the grievor flexed his chest Ms. St-Louis made a comment like “You’re so macho!” and gave him a shove, which caused Mr. Proussaefs to react by pushing her back, as a result of which she fell into the file cabinet. While Mr. Amenta suggested that it was not a deliberate gesture on the grievor’s part, he stated “He doesn’t know how strong he is … I was kind of stunned.” Employee Dennis O’Bery, who was sitting in an adjacent work station at the time of the pushing incident, testified that he heard a noise and some discussion. According to his account Mr. Amenta later told him that Mr. Proussaefs and Ms. St-Louis had argued, and that the grievor had shoved her against some shelving. He also stated that, on occasion, he has seen the grievor “explode, or lose it.” He also confirmed, in cross-examination, that after the move to Toronto Ms. St-Louis confided in him that she was afraid of Mr. Proussaefs, as a result of the shoving incident.
The grievor denies all wrong-doing. During his initial disciplinary interview with the Company Mr. Proussaefs denied having touched Ms. St-Louis during the shoving or file cabinet incident. He then stated, in part: “This was a daily ritual that we had where she would hit my chest and arms, as a sign of affection because of the way I’m built. It did not bother me, however, on one occasion it did and after she swore at me. I swore back at her and just from my facial expression she was startled and she tripped over her feet and fell over a bookcase.” He also denied having said the words attributed to him to Mr. Adornato during the fire drill.
With respect to the comment made to Mr. Sakalinis, Mr. Proussaefs does not deny that he said something negative about Ms. St-Louis. According to his explanation, he had received a number of anonymous phone calls, both at work and at home, with the caller remaining silent on the line. During the initial investigation he explained “I had no proof of who it was. However, on one occasion I heard her voice, and I knew then that it was her. Its unfortunate that Mr. Sakalinis called me ten minutes after, I was upset and I was not thinking, but I did say what I said.”
In his evidence before the Arbitrator the grievor gave somewhat different accounts of the events reviewed. According to his evidence Ms. St-Louis appeared to be infatuated with him. He states that she would confide in him with respect to personal and marital problems, and would seek his advice. He states that she began to ask him questions as to what he liked in women, and whether he was happy with his spouse. He says that he ignored her and tried to maintain things on a friendly basis. According to Mr. Proussaefs, she dressed deliberately to make herself more attractive to him and began to emulate his hobbies and interests, including getting involved in purchasing collector comics.
Mr. Proussaefs also stated that Ms. St-Louis propositioned him twice. When asked to elaborate on that he stated that on one occasion she invited him and employee Joe Amenta to come to her house to watch her rabbit perform a sexual act, and on another occasion made a similar invitation concerning observing the lust of her neighbour’s dog. He states that Ms. St-Louis spoke in a vulgar way to him virtually every day, and that this eventually became repulsive to him. Mr. Proussaefs states that on several occasions he told her that he had enough and that he wanted her to leave him alone. According to his testimony that appeared to anger her, and explains much of her subsequent complaints and allegations against him.
With respect to the filing cabinet incident, Mr. Proussaefs testified during the arbitration hearing that Ms. St-Louis was speaking with Joe Amenta, ridiculing Mr. Proussaefs, when he rose from his desk and confronted her, with his arms crossed. He says she pushed him twice, causing him to open his arms as a reflex, which resulted in her being propelled into the filing cabinet.
As Mr. Proussaefs recounts it, Ms. St-Louis would frequently follow him and Mr. Amenta during their lunch breaks, when she would go for a cigarette and sit next to or immediately behind them in the public areas of the CN station. According to Mr. Proussaefs, Ms. St-Louis frequently raised sexual topics during their conversations and, on at least one occasions, showed him nude black and white photographs of her, as well as nude poses of her husband. He further relates that she occasionally made comments such as “A man’s car is an extension of his penis.” He further relates that on one occasion, during an office luncheon, she drank heavily, touched him under the table and insisted that he hand-feed her, sucking on his fingers as he did. He states that he never harassed the complainant employee, never made the comment attributed to him to Mr. Adornato and never asked Ms. St-Louis to open her blazer, although he conceded that he did reply to an insulting comment which she made about his chest, saying, “At least I have some, you don’t.”
The second series of events for which the grievor was disciplined arose after the initial complaint made to the Company by Ms. St-Louis. The incident in question occurred in Montreal on Sunday, August 24, 1997. At that point the Company was conducting its investigation of the complaint made by Ms. St-Louis, and the grievor was then suspended from service pending completion of the investigation. The record discloses that as of July 29, 1997 Mr. Proussaefs was advised of his suspension. He was instructed to hand in his security pass, and not to return to the Company’s building until appointed interviews. There appears to be little doubt that he was well aware that he was not to attempt to enter any Company building without pre-arranged permission. Further, a memo dated July 29, 1997, with the grievor’s photograph attached, was circulated to security staff in the lobby of the building where the Revenue Management Centre was housed, indicating that the grievor should not be admitted, save at the appointed date, and that his security pass, bearing his photograph, should not be given to him.
Notwithstanding the foregoing instructions Mr. Proussaefs drove to the Company’s building in the company of his wife on August 24, 1997. While she remained in the car he entered the security lobby, at 1060 University Avenue. He there encountered Mr. Martin Beauchamp, a security guard employed by a private company. According to Mr. Beauchamp’s evidence Mr. Proussaefs proceeded to fill out a line in the visitors’ registration book, stating that he was an employee and had an envelope to deliver to the fourth floor. When Mr. Beauchamp indicated to the grievor that as an employee he did not need to fill the visitors’ book, but could enter by simply swiping his magnetic card in the scanner, he responded that he had forgotten his card at home and had an urgent need to deliver the letter to the fourth floor. It is not disputed that the envelope which Mr. Proussaefs then had with him contained certain receipts for which he was making expenses claims, apparently in relation to his impending move to Toronto.
Mr. Beauchamp relates that he then recognized the grievor from the memorandum and photograph which had been provided to him. He then asked Mr. Proussaefs to show another piece of photo identification, at which point the grievor apparently provided him with a CN employee card, which allowed Mr. Beauchamp to affirmatively identify the grievor as the person who had been interdicted. When he then indicated to Mr. Proussaefs that he recognized him as a person who was forbidden to enter, Mr. Beauchamp states that the grievor immediately began to make scribble marks over the entry he had placed on the visitors’ register, so that his writing would be illegible. According to Mr. Beauchamp he had in fact entered a name other than his own name on the register, and in the space provided for indicating the company he worked for, he had simply put the initials “SHL”, an entry made by the previous visitor. When Mr. Beauchamp attempted to cover the visitors’ register with his arm, he relates that the grievor abruptly pushed him back, causing him to fall into the chair behind him. The guard then stood up and instructed Mr. Proussaefs that he was to leave immediately. He relates that he followed the grievor to the door, whereupon Mr. Proussaefs took the door and pushed it directly into him, causing him to be struck by it. This prompted Mr. Beauchamp to run after the grievor who, it does not appear disputed, fled down the sidewalk, in a direction away from the car in which his wife was waiting for him. Shortly thereafter, Mr. Beauchamp wrestled the grievor to the ground, obtained help in securing him and summoned a municipal police constable to give him assistance. The grievor was placed in handcuffs and, eventually, into a police van. It appears, however, that the municipal police officers released him, after viewing a video tape of the lobby incident, and apparently indicating to Mr. Beauchamp that they had no jurisdiction over the incident, as it had occurred on railway property, and was under the jurisdiction of the CN Police. The grievor was then released. The Company asserts that the foregoing incident, which apparently occurred on the day immediately prior to its decision to discharge the grievor, further discloses conduct unbecoming an employee, and assault, in further justification of the decision to terminate Mr. Proussaefs’ services.
Mr. Proussaefs does not deny that he attended at the Company’s building on Sunday, August 24, 1997, for the purpose of delivering the envelope which he showed to Mr. Beauchamp. He states that when Mr. Beauchamp denied him entry he concluded that there was no reason for his name to remain on the visitors’ register. By his account, as he was scratching out the entries he had made Mr. Beauchamp seized him and placed him in a headlock. He says that he then noticed that there was a black object which the guard appeared to be reaching for. Fearing for his life, he ran out of the building and fled down the sidewalk until he was apprehended by Mr. Beauchamp, who was assisted by another person. He relates that he sustained an injury to his left arm and required attention at the emergency room of a local hospital, causing him to eventually complain to the police of an assault upon him by Mr. Beauchamp.
Counsel for the Company submits that the case at hand is to be resolved largely on the basis of credibility, and that the grievor’s testimony and version of events, both in relation to the alleged harassment of Ms. St-Louis and the encounter with security guard Beauchamp are not to be believed. With respect to the harassment incidents, he stresses the corroboration of other bargaining unit employees of much of the account of events given by Ms. St-Louis, stressing that the individuals who came forward are not members of management, and have no reason to fabricate evidence against Mr. Proussaefs. Counsel specifically points to the corroborating evidence of Mr. Adornato, Mr. Sakalinis and Mr. Amenta, as they relate to the shelving or file cabinet incident, the humiliating comments made during the course of the fire drill and what Counsel characterizes as the slanderous remarks made over the telephone by Mr. Proussaefs to Mr. Sakalinis, for the sole purpose of denigrating Ms. St-Louis and undermining her reputation in the workplace.
Counsel further submits that the Arbitrator should give no weight to the grievor’s account of the incident of August 24, 1997, concerning his encounter with security guard Beauchamp. He draws to the Arbitrator’s attention the page of the visitors’ register, a copy of which was tendered in evidence, which clearly indicates that Mr. Proussaefs attempted to conceal his true identity to gain entrance to the fourth floor office, knowing full well that he was prohibited from doing so. With respect to the grievor’s candour, he further notes that on a previous occasion Mr. Proussaefs was discharged for falsely claiming illness, and receiving sickness benefits, for the purpose of extending a vacation trip to Greece. He draws the Arbitrator’s attention to his decision in CROA 2368, where it was confirmed that the grievor had deliberately misled the Company, but was nevertheless reinstated, without compensation, on a “last chance” basis. He also notes that on a previous occasion the grievor was compelled to apologize in writing to another female employee for his offensive conduct.
With respect to the jurisprudence in support of the Company’s decision to terminate the grievor’s services, Counsel draws to the Arbitrator’s attention a number of awards, including Re Canadian Pacific Ltd. and Brotherhood of Maintenance of Way Employees (1996) 57 L.A.C. (4th) 90 (M.G. Picher); Re Canadian National Railway Co. and Canadian Brotherhood of Railway, Transport & General Workers (1988) 1 L.A.C. (4d) 183 (M.G. Picher); Re Royal Towers Hotel Inc. and Hotel Restaurant & Culinary Employees & Bartenders Union, Local 40 (1992) 32 L.A.C. (4th) 264 (Blasina); Re Camco Inc. and United Electrical, Radio & Machine Workers, Local 550 (1990) 16 L.A.C. (4th) 1 (Whitehead); Re Toronto Hydro Electric System and Canadian Union of Public Employees, Local 1 (1988) 2 L.A.C. (4th) 169 (Davis); Re Browning-Ferris Industries Ltd. and Canadian Union of Public Employees, Local 1932, an unreported award of Arbitrator Ross C. Dumoulin dated August 20, 1997. Further reference was made to Aggarwal, Sexual Harassment in the Workplace (Second Edition) (Butterworths, Toronto and Vancouver, 1992), at pp. 7-14, and pp. 57-70.
The Union’s representative submits that the Company’s response to the incidents reviewed in evidence is an overreaction, which fails to take into account the context of the workplace. She stresses that the evidence of a number of witnesses confirms the account of Mr. Proussaefs, to the effect that there was much sexual banter and joking which occurred in the Montreal office where Ms. St-Louis and Mr. Proussaefs worked. She notes the evidence of Ms. St-Louis herself, who indicated that she participated in a sexual banter which went on in the office, emphasizing that during all of the time of her employment in Montreal, when she alleges she felt humiliated and denigrated by Mr. Proussaefs, Ms. St-Louis made no complaint to anyone.
The Union’s representative also stresses that there is no evidence that Mr. Proussaefs made a habit of “putting people down”, and that the preponderance of the testimony of the employees called as witnesses indicates that if he made any comments it was in a joking way. She also argues that even if Mr. Proussaefs did make a negative statement about Ms. St-Louis in one telephone conversation with a Toronto employee, a comment which he admits, that falls far short of establishing evidence of a poisoned work environment. She further questions what role, if any, management or supervisors played in controlling the apparent degree of sexual talk which a number of witnesses confirmed went on openly in the workplace.
The Union’s representative asks on what basis it might be appropriate for Ms. St-Louis to have made comments about the grievor’s body, while he stands accused of harassment for having made comments about hers. She submits that, on the whole, the evidence does not sustain the discipline or discharge of Mr. Proussaefs, and that he should be reinstated, with full compensation for wages and benefits lost.
I turn to consider the merits of the parties’ respective positions. Before doing so, however, for the purposes of completeness, I deem it appropriate to record a procedural aspect of the hearing. The grievor’s brother, Mr. George Powers, appeared at the outset of the hearing. He requested leave to file in evidence a substantial number of statements which he apparently gathered from other employees and individuals, during an investigation which he conducted himself, following the discharge of his brother. I ruled that I would not admit the statements which Mr. Powers sought to tender in evidence, as there appeared to be no indication that they dealt with eye-witness accounts of any of the specific incidents of alleged sexual harassment and assault involving the grievor. Without taking specific cognizance of the statements Mr. Powers sought to file with the Arbitrator, it appears that they were in the nature of statements and opinions given by other employees, some of which concerned the good character of Ms. St-Louis. The character of the complainant employee is not pertinent to the issue before the Arbitrator, except as it might be reflected in specific incidents relating to encounters between the grievor and the complainant employee. Such incidents could arguably support an allegation of acquiescence or provocation on her part. That evidence, however, could fully and properly be given by Mr. Proussaefs himself, who did testify extensively during the course of the hearing about encounters between himself and Ms. St-Louis, going both to her character and her motivation.
Boards of arbitration must view with great caution and concern an attempt to adduce large volumes of after-the-fact evidence aimed at discrediting the character of a complainant who alleges sexual harassment. In a case of this kind, it is the statements and actions of the complaining employee which directly involve the grievor that are pertinent to the arbitral inquiry, whether to establish that certain statements or actions were invited or encouraged, or for some other purpose pertinent to the merits of the case. In the instant case the grievor had ample opportunity, which he did not hesitate to use, to advance his own characterization of the complaining employee, and her course of conduct towards him over a substantial period of time. Her involvement with others, assuming any such involvement could properly be proved, or their opinions of her, would be of little or no probative value for the purposes of assessing the grievor’s conduct against the standard of general societal norms. Moreover, apart from the hearsay nature of the apparently negative statements sought to be introduced by the grievor’s brother, their admission would have risked the board venturing extensively into corollary areas of evidence which are irrelevant, inflammatory, and highly prejudicial. On that basis I ruled them to be inadmissible.
It is beyond discussion that sexual harassment in the workplace is a grave offence, deserving of the most serious measures of discipline. The Re Canadian Pacific Ltd. case, cited above, an award sustained upon judicial review by the Quebec Superior Court in a decision dated February 12, 1997, concerned false allegations of a homosexual relationship made against two male employees. In that award, which sustained the discharge of the author of the allegations, the following comments appear:
The Brotherhood submits that, to its knowledge, there has never been a decision by a Canadian court or tribunal making a finding of sexual harassment involving heterosexual males only. It argues, in fact, that as a matter of law sexual harassment between such persons is not possible. In support of its position it refers the Arbitrator to a definition of sexual harassment appearing in a decision of the Supreme Court of Canada, issued in 1989 in Janzen v. Platy Enterprises Inc. 89 C.L.L.C. 17,011. That case involved physical touching, sexual advances and verbal abuse against two female waitresses by another employee, coupled with indifference on the part of the manager of the restaurant where these events occurred. The Brotherhood draws to the Arbitrator’s attention the following comments by Dickson, C.J.:
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 job related consequences for the victims of the harassment. It is ... 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.
In the Arbitrator’s view, while the above passage represents an accepted definition of certain conduct which constitutes sexual harassment, it must be understood as part of a judgment rendered in the common law tradition, responding to the facts of the particular case then before the Court. It must be interpreted in its context. Passages from the judgment which suggest that sexual harassment, commonly understood, may involve sexual demands or other practices which affects conditions of employment or employment opportunities based on “a characteristic related to gender” should not be taken as intended to be exhaustive or definitive of sexual harassment for all purposes. While physical touching and the making of sexual demands may be the crudest form of sexual harassment, giving rise to the earliest complaints and court or tribunal decisions, experience has shown that the concept of sexual harassment can be much broader. Innuendo by words or gestures, unwelcome staring, sexually abusive jokes or other language, the unwelcome displaying of pornography and the writing of graffiti on workplace walls which singles out or demeans individual employees are all now generally recognized as forms of sexual harassment, even though they may not involve an abuse of power or the making of sexual demands by the member of one sex upon a member of the other sex. It is important, I think, to recognize that the categories of sexual harassment, like the categories of negligence, are never closed.
It is also useful to reflect on the comments made by Arbitrator Blasina in the Royal Towers award cited above. It appears that in that case much argument was addressed to workplace standards of conduct and the permissive atmosphere which was thereby created. At pp. 277-78 Arbitrator Blasina considered and disposed of that argument in the following terms:
Noting that although the jurisprudence is relatively recent, counsel for the union argued that sexual harassment is not a new phenomenon. One should not automatically assume that everyone would be cognizant that conduct that has been going on for a long time is now wrongful. I would certainly agree that sexual harassment is not something new and that each grievor deserves individual consideration.
Counsel for the union also endeavoured to argue that sexual harassment has been condoned in the past. This proposition as a generalization is one whose foundation I believe is doubtful. The jurisprudence regarding sexual harassment and sexual discrimination has naturally focused on cases where problems existed. I would expect too that more people now are aware of their rights and are prepared to rely upon them. I would expect that some cases are now being advanced which might never have been heard before. The evolving jurisprudence has greatly assisted in teaching employers how to unequivocally deal with such problems and has been educative particularly for those persons who should have known better. But, it has not been particularly enlightening for those who knew better all along; and realistically, such persons do not tend to come under adjudicative scrutiny.
Sexual harassment is first simply harassment - but then with sexual overtones. The sexual overtones make it more reprehensible because it becomes a meaner and more pointed assault on the victim’s self-esteem. I am no psychiatrist but I would think people are generally more vulnerable and more fragile when abused in a sexual way.
Also, the conduct complained against is inextricably attached to an emotional element. The state of mind of both parties is critical. All the circumstances must be weighed. Sometimes the exact same conduct in other circumstances could be a joke or tease or expression of affection or confidence. Sexual harassment, however, is none of these because the purpose, or effect, of the conduct is to injure. Sexual harassment is an act of aggression.
So, I do not accept the generalization that sexual harassment has been condoned because I do not accept that our society has condoned harassment of and injury to another person. I recognize notwithstanding that such misconduct will still occur but I would reject the notion that somehow this is a mitigating circumstance. Each case requires individual scrutiny, and I agree that ignorance may possibly be an excuse in some cases, but ordinarily this would not be so. Particularly, one does not need to be told that you do not torment and demean another person and do so repeatedly such that you make them miserable and make them hate coming to work. That applies to any harassment – sexual or not. Quite simply, any person with a modicum of goodwill and respect for his fellow man, would know better. Any person need only ask himself how he would like it if he or his wife, daughter or sister, or other loved one had to work under such conditions.
The evidence before the Arbitrator does, as the Union’s representative submits, reveal a certain degree of “laissez faire” with respect to the discussion of sexual topics in the Montreal office where the events under examination generally occurred. Clearly, there was nothing prudish about Ms. St-Louis, and she participated, as did others, in banter and jokes of a sexual nature. It would also appear that she did, on at least some occasions, confide to a degree in Mr. Proussaefs in matters relating to her personal and family life. There is, however, nothing in the evidence which, in my view, would justify a conclusion, by any reasonable employee, that Ms. St-Louis ever invited or provoked insults or comments of a sexual nature to be made openly, in a way calculated to denigrate her character and humiliate her. No witness, other than the grievor, suggested that any sexual comments or discussion by the complainant employee was ever made in other than in a light or joking manner, in a way consistent with the talk which was common among most employees in the workplace. I also am satisfied, on the evidence before me, that the suggestion that Ms. St-Louis was infatuated with Mr. Proussaefs is false.
Upon a careful review of the evidence, the Arbitrator must come to the conclusion that the credibility of Mr. Proussaefs in this grievance is highly suspect. Firstly, with respect to the shoving incident, where the objective evidence before the Arbitrator clearly confirms that Ms. St-Louis was propelled into a file cabinet or shelves, the chronology of the grievor’s accounts of what occurred discloses grave inconsistencies. During the first inquiry made by the Company’s investigating officer, he gave an account which would have suggested that he did not touch Ms. St-Louis, but that she was merely startled by his facial expression, which caused her to fall backwards. Under oath, before the Arbitrator, Mr. Proussaefs offered an entirely different theory of the incident, explaining that he had his arms folded across his chest and that when Ms. St-Louis pushed him twice, he opened his arms, inadvertently striking her and pushing her backwards as he did so.
I find the grievor’s evidence in respect of that incident to be incredible. Mr. Amenta, who was an eye-witness to what happened, corroborates Ms. St-Louis’ account, at least to the extent that Mr. Proussaefs deliberately pushed her. The only difference in their accounts is whether he was provoked by her words, as she claims, or whether she in fact touched him first, as Mr. Amenta indicates. I find in unnecessary to resolve that difference in the evidence. It is sufficient, I think, to conclude, as both Ms. St-Louis and Mr. Amenta testified, that Mr. Proussaefs deliberately pushed the complainant employee, and that he just as deliberately falsified his account what occurred during the course of the Company’s initial investigation.
The grievor’s credibility also fails with respect to the alleged statement he made to Mr. Adornato, when he is said to have stated loudly, within the earshot of the complainant employee “Still sucking her tits? You still want to fuck her …?”. Mr. Adornato, who has no axe to grind in this matter, confirmed that the statement was made, as alleged by Ms. St-Louis. The fact that he characterized it as an insult aimed at him is of little moment. Whatever its intended purpose, a comment of such breathtaking insensitivity, made openly and loudly within the earshot of others, can only be understood as intended to bring insult and humiliation to Ms. St-Louis.
It is in the context of the prior incidents reviewed that the telephone exchange between Mr. Proussaefs and Toronto employee Frank Sakalinis must be viewed. There can be no doubt, on the balance of probabilities, that Mr. Proussaefs conveyed to his fellow employee in Toronto the clear impression that Ms. St-Louis was a person of low moral character in matters sexual, and that she would be an easy conquest if he were so inclined. This, it may be noted, was not the sharing of an intimacy between old friends. The grievor’s statement, clearly slanderous of Ms. St-Louis, was made over the telephone during the course of the first conversation between two men who had never met. Even allowing for the dubious theory advanced by the grievor, that he believed that Ms. St-Louis had been making anonymous phone calls to him during business hours (a fact not borne out by telephone records tabled in evidence) there can be little doubt but that his statement to Mr. Sakalinis was a malicious and inexcusable attempt to sully the reputation of Ms. St-Louis among her new work colleagues in Toronto. In all of the circumstances, the Arbitrator has no difficulty understanding and accepting the perception of Ms. St-Louis, related in her testimony, that she felt genuine fear of what was to follow, having confirmation that the person she saw as the Montreal office bully was now pursuing her to Toronto.
Nor does the Arbitrator accept the grievor’s account of the incident relating to his attempt to enter the Montreal office on August 24, 1997. The grievor’s actions in relation to the filling of the guest register confirm, to the Arbitrator’s satisfaction, that he set out to deceive the security guard in an effort to enter the premises, when he clearly knew that he was prohibited from doing so. His attempt at scribbling over the false entries which he placed on the register, only after the guard made it clear that he had found him out, reflect a naive and transparent attempt to undo evidence which could later be used against him. While it is arguable that the security guard’s subsequent hot pursuit of Mr. Proussaefs out of the building and down the street, and his forcible detention might have been excessive in the circumstances, I am satisfied that the grievor did, without justification, push and thereby assault Mr. Beauchamp who was only attempting to perform his appointed duties.
In conclusion, with respect to the facts, I am satisfied that the allegations of the Company are made out on the evidence before me. Mr. Proussaefs made insulting personal comments of a sexual nature aimed at Ms. St-Louis, openly in the workplace, in a manner calculated to degrade and humiliate her. He did so in relation to his comments about her breasts prior to pushing her into the file cabinet, did so in his comments to Mr. Adornato on the occasion of the fire drill and resorted to the same pattern of conduct in his gratuitous and slanderous remarks about her good character during the course of a telephone call to a another employee, whom he did not know, in Toronto. He also attempted, by fraud, to enter Company premises when he knew he was prohibited from doing so, and physically assaulted a security guard when he was found out.
Plainly, all of the foregoing actions are deserving of discipline. The only issue to be determined is the appropriate measure of discipline which should be applied in the circumstances. When the grievor’s record is examined for the purposes of weighing mitigating factors, there is little that can be applied in Mr. Proussaefs’ favour. As an employee of ten years’ service he cannot claim great longevity in his position. Moreover, his employment was interrupted by a substantial suspension arising out of a prior incident of dishonesty, involving a fraudulent illness indemnity claim for which he was discharged, and subsequently reinstated on a “last chance” basis by this Arbitrator in CROA 2368, on May 14, 1993. Further, and most unfortunately, the record discloses that on a previous occasion, following his reinstatement, Mr. Proussaefs was found to have drawn and displayed a lurid picture which denigrated a female co-worker. Although he initially denied drawing the offensive picture, upon being confronted with the opinion of a hand-writing expert confirming that he had done it, he admitted that he had, and was compelled to make a written apology to the female employee in question, a person other than the complainant in the instant case. In that apology he wrote, in part: “Please believe me when I say that I truly regret causing such emotional stress, pain and anxious [sic] in such a thoughtless form. I understand that every employee deserves to be treated with the utmost respect and courtesy. I promise that such an incident will never in the future occur again.”
That promise was not kept. The words and actions which the grievor later directed to Ms. St-Louis, were in clear disregard of any appreciation by him of the meaning of the words of the above quoted apology. The relationship between Mr. Proussaefs and Ms. St-Louis had previously been cordial, and they had both participated in general joking, sometimes of a sexual nature. For reasons which he must best appreciate, however, the grievor turned the focus of his jokes onto Ms. St-Louis in a personal way, calculated to attack and humiliate her. Thereafter, he engaged in a pattern of deception and dishonesty, both during the Company’s disciplinary investigation and before the Arbitrator, in an attempt to evade the consequences of his actions. Regrettably, he did the same thing by fraudulently attempting to enter the Company’s office on August 24, 1997. In matters of evidentiary conflict, he simply cannot be believed. Further, there was nothing in the evidence of the grievor, nor in a closing statement which he presented at the conclusion of the hearing, that suggests a shred of recognition on his part that he was at fault in any of the events reviewed. There was no attempt on his part to acknowledge the suffering he might have caused, to express remorse or to apologize. On the whole, therefore, I can see no basis upon which to reverse the decision of the employer to terminate his services.
For the foregoing reasons the grievance is dismissed.
Dated at Toronto, April 3, 1998
MICHEL G. PICHER