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166-2-27331 (2001 PSSRB 27)
Joss v. Treasury Board (Agriculture & Agri-Food Canada)
Before: F. Chad Smith
Appearances: J. Bart, for the Grievor; R. Snyder, for the Employer
Decision rendered: March 14, 2001
Suspension (10 days) – Harassment – the grievor received a 10-day suspension for his alleged harassment of two employees, S and B – S had been under the grievor's supervision for a time – the grievor had become concerned about S's attendance and proposed to his supervisor that S be required to get a medical assessment – when the grievor's supervisor complied with this suggestion, S filed a grievance – B was a human resources advisor for the employer – during a meeting with S regarding his grievance, at which both the grievor and B were in attendance, B suggested to S that he file a harassment complaint against the grievor – S, in fact, filed a complaint alleging that the grievor had harassed him on six occasions – B investigated this complaint and found three of the allegations to be substantiated – the grievor objected to B's involvement in the investigation of the complaint as he was the one who had suggested to S that he should submit it – also, the grievor and B had a contentious history – the grievor received a five-day suspension for his alleged harassment of S – the grievor grieved the imposition of this disciplinary sanction – in preparation for the hearing, the grievor obtained medical information regarding S from S's doctor – the grievor also learned that he would have to subpona any of the people whom he wished to have testify, even B – as a result of certain adverse comments which the grievor made regarding B's lack of impartiality in the matter, B filed a complaint alleging that the grievor had harassed him on three occasions – S also filed another harassment complaint against the grievor for obtaining medical information from his doctor – ultimately, a settlement was reached regarding the grievor's grievance against the five-day suspension imposed upon him – when certain employees who had been subponaed asked the grievor what had happened, he showed them the settlement agreement, which did not contain a non-disclosure clause – S considered that this constituted harassment of him and filed another harassment complaint against the grievor – following an investigation, a Public Service Commission (PSC) investigator found that the grievor had harassed S, by revealing the terms of the settlement agreement to other employees and by obtaining medical information from S's doctor – she also found that the grievor had harassed B, by making adverse comments regarding his lack of impartiality – it was for these alleged acts of harassment against S and B, contrary to the Treasury Board (TB) Harassment Policy, that the grievor received the 10-day suspension which is the subject of this grievance – in an earlier decision, the adjudicator had denied the grievance: 166-2-27331 (January 13, 1998), (1998) 33 PSSRB Summaries 13 – this decision was set aside on judicial review and the matter was referred back for rehearing before a new adjudicator: Joss v. Canada (Attorney General) (1999), 176 F.T.R. 118 – neither S nor B testified – the PSC investigator testified regarding the contents of her report – the adjudicator found this approach to be problematic as this evidence was mostly hearsay – however, this problem was overcome by the grievor, who acknowledged his involvement in the incidents in question – the only question which remained for the adjudicator to determine was whether the grievor's actions constituted harassment against S and B within the meaning of the TB Harassment Policy – the adjudicator found that the definition in the TB Harassment Policy contained a subjective element which was not proved, as neither of the alleged victims had testified – in any case, she found that the incidents in question did not constitute harassment of either S or B by the grievor under the circumstances – in particular, she found that the grievor's objection to the apparent lack of impartiality on the part of B was well-founded under the circumstances.
|Cases cited:||Re Lumber and Sawmill Workers' Union, Loc. 2537 and KVP Co. (1965), 16 L.A.C. 73; Western Star Trucks Inc. and International Association of Machinists and Aerospace Workers, Lodge 2710 (1997), 69 L.A.C. (4th) 250; Re British Columbia and B.C.G.E.U. (1995), 49 L.A.C. (4th) 193; Skelly and Quebec Human Rights Commission v. O'Hashi,  J.T.D.P.Q. no 32 (Q.L.); Re Canada Post Corp. and C.U.P.W. (1987), 27 L.A.C. (3d) 27; Re ITT Canon Canada, Division of ITT Industries of Canada Ltd. and Canadian Automobile Workers, Local 1090 (1990), 15 L.A.C. (4th) 369; Re Royal Towers Hotel Inc. and Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40 (1992), 32 L.A.C. (4th) 264; Janzen and Gauvreau v. Platy Enterprises et al.,  4 W.W.R. 39 (S.C.C.); Johnson v. Canada (Treasury Board) (1993), 70 F.T.R. 217.|