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Magill v. Atlantic Turbines Inc.

IN THE MATTER OF the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12 AND IN THE MATTER OF a Board of Inquiry appointed to investigate the complaint of Ann Magill Between Ann Magill, complainant, and Atlantic Turbines Inc., respondent

Prince Edward Island Board of Inquiry Under the Human Rights Act D. Larter

January 30, 1997
(65 paras.)

Appearances:
 

David Hooley and Pamela Williams, for the complainant.
John Mitchell and Sean Casey, for the respondent.


REASONS FOR DECISION

1)  THE COMPLAINT

1      Ann Magill (the Complainant) was hired by Atlantic Turbine Inc. (the Respondent) as a Detail Parts Inspector on July 21, 1993.  By letter dated December 16, 1994, the Complainant's employment was terminated by the Respondent. Although the letter of termination did not specify precise reasons for the termination, the Respondent's evidence was that it was due to excessive absenteeism.

2      On January 3, 1995, the Complainant filed a Complaint of Sex Discrimination with the Prince Edward Island Human Rights Commission, alleging that she had been discriminated against on the basis of sex, contrary to Section 6 (1) of the Human Rights Act.  R.S.P.E.I. 198 8, Cap. H-12 (the Act).  The Complainant also alleges that the Respondent contravened Section 7(1) of the Act by paying male employees at a higher rate of pay for substantially the same work.  The Complaint, written and signed by Ann Magill on December 21, 1994, reads as follows:
 

The particulars of my complaint are:

Extensive experience and background as per attached sheets: DND Jul 1977 - Oct 1987 Airframe technician and Flight Engineer.

1) In my employment interview with Yves LeRoi, VP operations, I was lead to believe that I would be able to move up through the company, due to my previous experience and work performance.  This was never the case and every time I questioned the verbal promises I was given excuses and put off.

2)

Transport Canada recognizes Military qualifications as valid towards an AME licence. Yves LeRoi on more than one occasion has shown his disregard for Military background.

3)

During my employment interview there was no mention of an apprentice program and I was hired as a parts inspector.  After a few days, I was informed I was on the apprentice program and required to clock time to Peter McLellan, senior inspector for training.  The training consisted of Peter showing me the books, inspection sheets, and how the paperwork system worked.  I was capable of performing my duties with little supervision in a matter of weeks.

4)

The apprentice program was for the benefit of the Company.  Only the two females; not the men hired as inspectors, were on the apprentice program. Two men hired as parts inspectors after me were not on the program and were hired at a higher wage.

5)

All men in inspection shop at higher wage, not based on previous experience.  One man in shop at same class and wage as females, however, he was hired as an apprentice from Holland College course - no previous experience in aviation field employed with company slightly longer than me.

6)

Senior inspector (senior based on time with the company) is not a supervisor, has five years Military experience as an engine technician and is at an annual salary in excess of ten thousand dollars to mine.

7)

Yves LeRoi said I could work in test cell when I was more familiar with the engine.  When after more than 6 months and on more than one occasion I asked when I could work in test cell; he put me off.

8)

Any request to further myself by trying to get experience outside inspection during slow times was refused.  My requests were never considered, however, when it was to their advantage I would be asked to work in other shops - without recognition or advancement.

9)

As an inspector we maintained a great deal of paperwork.  When I noticed errors and showed the error to whomever did it, to prevent repetition, I was usually treated with animosity.  We (female inspectors), brought this situation to the attention of the senior inspector he stated more than once that it was our imagination, he said we had aggressive attitudes and that we should be nicer to the men.  He told us we were trying to show up the men by pointing out their mistakes.  Any mistake not pointed out would reoccur.

10)

Mistakes made by men were often down played; but mistakes made by us were always brought to our attention immediately and quite often treated as major.

11)

When Yves LeRoi had to talk to inspection as a group, it was evident in his voice of the low regard in which he held the females.

12)

Females were never permitted to assist in training of junior personnel.  This training was done by a man with less time in inspection.

13)

On more than one occasion I questioned the Engine Shop Manager, Dallas Miller and Yves LeRoi about the inequity of my pay, in particular why I was at a lower rate than the male inspectors.  The answer varied from Yves saying that it was a pay wage set by old management not him or that some of the men worked a great deal of overtime and had proven their worth; or that as Dallas put it "I have to wait my time like everyone else".

14)

There are several cases where experience, qualifications and time with the company do not justify the position and pay:

Peter McLellan - approx three years with company, previous experience 5 years, military - class 1 senior inspector annual income in excess of forty thousand dollars.

Miguel Mayoralgo - approx one year with company, previous experience Pratt & Whitney - class 1 higher wage than female.

Rick Moores - approx eight months - previous experience Pratt & Whitney - class 1 inspector higher wage than females.

Bill Hardy - approx two years - previous experience Holland College Electio Mechanical course - class 2 inspector same wage as females.

Tamara Shores - approx three years - previous experience three years military - class 1 inspector less than thirty thousand annual wage.

The above people and myself - approx year and 1/2 with company annual income 10 1/2 years military - class 1 inspector less than $30,000.00 annual income all do the same job as inspectors.

15) There are other examples of questionable positions and pay:
Mark Petrie - hired direct from Holland College course in Mar - Apr 1994 and is currently Class 1 inspector.

Robbie Rankin - prior background - computers approx 2 1/2 years with company - Class 1 inspector stamp.

Andrew MacDonald - prior background - Holland College course approx 2 1/2 years with company - Class 1 inspector stamp.

Ernest Newcombe - approx two years with company prior background auto mechanics - Class 2 inspector stamp.

Walter Vos - approx two years with company - Holland College Course has gone from apprentice to Class 1 to Class 2 inspector in 1994.

Darcy Poirier - approx three years with company, prior background motorcycle mechanic - Class 3 inspector, supervisor for RGB shop - annual income in excess of 45 thousand dollars.

16) Our Quality Control Manual (QCM) has specific criteria a class 1 it requires three years prior experience in the aviation field; class 2 requires two years as an inspector and so on up the scale to Class 4.   When we (females) questioned why men with little experience were in possession of these class stamps, we were told it was to allow them to stamp work order sheets.

17)

When we (females) made suggestions or concerns for an improved work environment we were not listened to - yet same or similar suggestion made by male inspectors were accepted and implemented.

18)

A situation occurred with the engineering assistant, Mike Gauthier, in regards to an engine. He called overtemp situation against.  I felt; based on previous experience that an overtemp did not exist.  I informed both a supervisor and senior inspector my findings; I was told to just do what you're told to do.  The next morning the director of engineering Rod Herbert concurred with my findings and stated that an overtemp situation did not exist; my opinion was not considered.  My experience and background were not taken seriously.

19)

On 11 May 1994 during a renovation to the company facility, I suffered from Carbon Monoxide poisoning and needed medical attention at Prince County Hospital.  The day I returned to work I questioned if the new shop area would have improved ventilation because I did not care to get sick again: the response from Dallas Miller "It's not my fault you can't hack it!"

20)

When we (females) requested a radio in the inspection area we were turned down even though there is a radio in several other shops: CMM, jigbore, welding, machine shop, RGB and even a mechanic in engine shop.

21)

I've personally been the subject of sexual comment, actually a cartoon with my name on a female figure and the caption "I Party Naked!".  I had intended to file a complaint, but when I told the Quality Control Manager, Bill Batchelor, he told me that it was not a good idea and that it would jeopardize my job - so I backed down.

22)

On 29 Nov the other female and I expressed our concerns and feelings to Dallas Miller.  We felt we had no respect from the men on the floor and in particular the senior inspector.  We questioned why men with less background and/or experience were at the same class level or higher, with the same or higher pay than ourselves.  He assured us that he would look into things for us and that he would see what could be done.

23)

On Mon Dec 5 the senior inspector made an excuse to move me from my inspection table and when I questioned it he admitted that he wanted to separate the females because we supposedly talked too much, even though our work was always of a high standard and completed on time.  Several areas of the engine shop work in pairs or groups and are never regarded as talking too much, we merely sit beside each other in inspection.  He got angry and asked "why the hell are we (females) complaining about him to Dallas?" I was sick (blocked sinus and ear infection) and stated that I was not going to work overtime, in reference to that day.

24)

On Tues Dec. 6, one week after we (females) spoke to Dallas Miller and the day after the incident with Peter McLellan I got a memo from Dallas Miller in reference to my sick days and overtime.  It was a very strong memo and I felt quite threatened by it.  I had no verbal warning that there was any problem with any employment prior to this memo.

25)

Ten days after the memo my termination papers were typed up.  They were mailed on the 20th Dec, the same day a male apprentice reported to work in inspection at my table.  The termination papers give no reason for dismissal.  I was terminated while on sick days, I sent a medical slip on the 12 Dec; due to high emotional stress, in compliance with the Dec. 6 memo. 4 days lacer I was fired.

I have always complied with company policy and did my job with the highest regard to accuracy and professionalism. In my opinion, I have experienced discrimination and pay inequity based on the fact that I am a female.

3      Although the complaint may not be concise and clear in all respects, it does identify the basic nature of the complaint, being:
 

Issue #1 - Unfair wage differentials and advancement opportunities.

The complaint alleges that women were not being promoted at the same rate as men, were having to complete apprenticeship programs which the men were not required to complete, that pay scales for men were higher than for women in the same area, and that experience, qualifications, and seniority were being irrationally considered by the Respondent.  The Complainant alleges that she was not given an opportunity to diversify and move up within the Respondent company and that requests made by the Complainant to further diversify and improve her qualifications during slow periods were either refused or ignored.  She also states that where she did advance her qualifications, it was completed without recognition or advancement;

Issue #2 - Sexist attitudes and sexual harassment within the company.

The complaint alleges that when women brought to the attention of management errors being made by male employees, they were either ignored or disregarded. Conversely, the Complainant alleges that errors made by women were acted upon immediately.  The complaint alleges that females were not permitted to assist in training junior employees, nor were suggestions to improve the work environment made by females considered.  The complaint also alleges harassment by the Respondent by virtue of her discovery of a sexist cartoon with her name and other allegedly harassing allusions to her on it in one area of the Respondent's workplace.

4      The PEI Human Rights Commission was unable to effect a settlement between the parties.  The minister of justice and the Attorney General appointed me as a Board of Injury pursuant to Section 26(1) of the Prince Edward Island Human Rights Act (the Act).

5      The hearing convened in Charlottetown, P.E.I., on April 16, 1995 and continued on April 18, 19, 22, 23, 24, 25, 26, 30, May 1, and May 2, 1996.  There were no preliminary objections to the appointment of this Board of Inquiry, nor were any questions raised concerning its jurisdiction to conduct this inquiry and fulfil its responsibilities pursuant to Section 26 of the Act.

2)  THE FACTS

6      The Complainant commenced employment with the Respondent on July 21, 1993 in the position of a Detail Parts Inspector.  Her employment background included service in the Canadian Military between October, 1976 and October, 1987 as a Teletype Operator, Airframe Technician, and a Flight Engineer. In October of 1987 the Complainant resigned from the Canadian Armed Forces and, with the exception of being employed as a Financial Planner between 1991 - 1992, remained at home raising her children until being hired by the Respondent.

7      The Respondent is a designated overhaul facility with a licensing agreement with Pratt & Whitney to perform the repair and overhaul of the Pratt a Whitney PW-100 airplane engine.  The Respondent company is located in Slemon Park, P.E.I., and commenced operation at that location in May 1992. The Respondent, at the relevant time, employed approximately 55 employees in the following tasks: 25 working in engine disassembly; 25 in engine assembly; and 5 in the inspection department.  While the Complainant was employed with the Respondent, there were: 4 women working for the Respondent; 2 in the inspection department; and 2 in mainly clerical positions.

8      The Complainant was hired by Yves LeRoi, the Respondent's Vice-President in charge of Operations and Director of Maintenance.  The starting salary of $25,000.00 per year for the Complainant was suggested to Mr. LeRoi by the Complainant as an acceptable salary.  The Complainant testified that during this interview with Mr. LeRoi, she was assured by him that based on her experience, qualifications and background, she would be at the top end of the pay salary within a year to a year and a half.  By letter dated July 22, 1993, the Complainant received an offer of employment from the Respondent and signed by Mr. LeRoi.  The offer of employment reads as follows:
 

July 22, 1993

Mrs. E. Ann Magill
St. Eleanors, PEI

RE:

OFFER OF EMPLOYMENT

Dear

Mrs. Magill:

I am pleased to offer you a position with Atlantic Turbines, for employment as available, as a "Parts Inspector", subject to the following conditions:

1. The salary will be $25,000.00 per annum.

2.

The position will be considered probationary and will become permanent upon satisfactory completion of 6 months' service.

3.

All Parts Inspectors are expected to have their own tools and tool box.  If required, a payroll deduction plan is available for the purchase of such tools.

4.

Shop coats will be supplied.

5.

Smoking is not permitted except in specifically designated areas.

6.

Salary is paid twice per month by bank transfer.

7.

Employment to commence as available.

8.

Company benefits as outlined on attached list.

Please confirm your acceptance of this offer by signing the attached copy and returning it to me at your earliest convenience.  Please also complete the enclosed standard company application form.

Yours sincerely,

Offer of employment accepted (signature)

Date:  22 Jul 93

Yves Le Roi
Vice President Operations

YLR/dmg

Enclosures

9      The offer of employment is silent as to the before mentioned assurance; although, in her evidence, the Complainant considered this assurance to be a key part of the interview.  There is no further evidence of this agreement from the time the Complainant was hired until February 12, 1994.  On this later date, the Complainant, believing that Mr. LeRoi was leaving the country, wrote a memo to him, reminding him of his assurance that "within a year to a year and one half you will be at the top end of the scale of $39,000.00". After sending this memo, the Complainant met with Mr. LeRoi at which time the Complainant testified that he denied having given such an assurance.

10      It is noted that, despite being referred to by Counsel as being an essential witness, Mr. LeRoi was not called to testify at the hearing.

11      At the time the Complainant commenced her employment with the Respondent, the company was experiencing major growth.  In regard to training and apprenticeship programs, the Respondent followed the directions set by policies from its parent company, Canadian Helicopter Inc.. The average time period for the apprentice program was eighteen months.  An employee would, based on a number of factors, normally progress through the AP1, AP2, and AP3 levels in stages of six month intervals.  The next advancement is to the mechanic or technical technician levels, each of which progressed in twelve month steps.

12      On December 8, 1993, the Complainant received her first, and only, performance appraisal.  At that time, the Complainant noted that she enjoyed working with the Respondent and felt quite comfortable there.  On January 21, 1994, the Complainant was promoted from her initial AP3 to Mechanic 1, effective February 1, 1994.  Her progression was noted by management as being in line with the policies followed by the Respondent company.

13      On October 14, 1993, the Respondent advised all employees of the Respondent's policy as to sick leave.  In essence, the Respondent adopted a policy that required an employee to obtain a medical doctor's certificate, where that employee was absent for 3 or more consecutive days.

14      On December 6, 1994, the Complainant received the following memorandum in regards to her absenteeism:
 

Memorandum

TO: Ann Magill

FROM:

Dallas Miller

DATE:

December 6, 1994

RE:

Absenteeism

It has been brought to our attention that you have missed thirty four (34) days from January 1st, 1994 to November 30th, 1994 due to sickness.  We realize that people do get sick but thirty four (34) days in less than one (1) year is unacceptable.  Any time missed in the future due to medical reasons must be accompanied by a doctor's slip.  Failure to abide by this will jeopardize your employment with Atlantic Turbines.

It has also been brought to our attention that you do not intend to work any more overtime.  At the time of your employment with Atlantic Turbines, it was emphasized that overtime would be requested and expected of you when the workload was high.  Refusal to comply with overtime request will also jeopardize your employment with Atlantic Turbines.

Regards,

(signature)

Dallas Miller
Engine Shop Manager

cc:

Yves Le Roi

John MacDougall

15      The President of the Respondent company, John MacDougall, testified that the absenteeism the company was experiencing with the Complainant was causing problems within the company, was having a negative effect on other employees, and had developed into a reliability and dependability problem for the company.  According to Mr. MacDougall, the Complainant had accumulated 320.75 hours of sick leave during the year 1994.

16      After receiving the December 6 memo, the Complainant took a number of vacation and/or sick days.  On December 9, 1994, she visited her doctor at the Prince County Hospital.  On that date, her doctor gave her a sick slip which was dated December 9, 1994 and delivered to the Respondent on December 12, 1994.  This medical slip reads:
 

"This is to certify that Ann Magill is unable to work for medical reasons.  It is uncertain how long she will be ill."

17      Despite this medical slip, the Complainant attended the Respondent's Christmas party the following day, December 10, 1994.  Following such, the Complainant was subsequently absent from work due to sickness between December 12th to December 16th.  On December 22, the Complainant received the following letter of termination from the Respondent:
 

December 16, 1994

Mrs. Ann Magill
St. Eleanors, P.E.I.

Dear Ann:

RE: Termination of Employment

This letter is to notify you that your employment with Atlantic Turbines Inc. has been terminated, effective immediately.

We enclose 6 weeks severance pay, along with other amounts you are entitled to by statute.  Please see Doris in the payroll office to obtain any other documentation you require.

We have prepared a form of release which we have signed and which we would request that you review and sign as well at your earliest possible convenience.  The enclosed release is a legal document which includes a final release by you in connection with your employment.  Once you have had an opportunity to review the enclosed release and signed the same, please return a signed copy directly to me.

If you have any questions or concerns about the release, I would suggest that you consult with a lawyer.

Yours very truly,

Dallas Miller
Engine Shop Manager

jM/dg

Enclosure

ANALYSIS AND DECISION

18      Section 6(1) of the Act states as follows:
 
6(1)

No person shall refuse to employ or continue to employ any individual on a discriminatory basis or discriminate in any term or condition of employment.

Section 7(1) of the Act states as follows:
 
7(1)

No employer or persons acting on behalf of an employer shall discriminate between his employees by paying one employee at a rate of pay less than the rate of pay paid to another employee employed by him for substantially the same work, the performance of which requires equal education, skill, experience, effort, and responsibility, and which is performed under similar working conditions, except where the payments are made pursuant to

(a)

a seniority system;

(b)

a merit system; or

(c)

a system that measures earnings by quantity or quality of production or performance, but where the systems referred to in clauses (a) to (c) are based on discrimination, the exceptions do not apply.

19      The proof requirements under the Provincial Human Rights Statutes have been succinctly set out by Mr. Justice MacIntyre in the case of Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536:
 

"To begin with, experience has showed that in the resolution of disputes by the employment of the judicial process, the assignment of a burden of proof to one party or the other is an essential element.  The burden need not in all cases be heavy - it will vary with particular cases - and it may not apply to one party on all issues in the case; it may shift from one to the other.  But as a practical expedient, it has been found necessary, in order to insure a clear result in any judicial proceeding, to have available as a "tie-breaker" the concept of the onus of proof."

20      His Lordship proceeded to state the following general principles with respect to the burden of proof in Human Rights proceedings:
 
A)

In direct discrimination cases, where the Complainant has shown a prima-facie case of discrimination on a prohibited ground, the onus falls on the Respondent to justify the discriminatory rule on a balance of probabilities;

B)

In adverse discrimination cases, the Complainant must show a prima-facie case of discrimination.  A prima-facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the Complainant's Favour in the absence of an answer from the Respondent.

21      Therefore, in order to succeed, the Complainant in this case must prove her case on a balance of probabilities.  The initial burden is on the Complainant to advance evidence of a prima-facie violation of the Act.  If there is evidence of a prima-facie case, the evidentiary burden shifts to the respondent to provide credible evidence of a non-discriminatory explanation for its conduct.

22      To determine whether the Complainant has been discriminated against by the Respondent, we must examine the two main issues surrounding the allegations made by her in light of this evidentiary test.
 
Issue # 1 - Unfair wage differentials and advancement opportunities.

23      In regard to what I have referred to as issue number one, the main thrust of the Complainant's argument is that women employed by the Respondent company were being paid substantially less than their male counterparts, that women were not being promoted at the same rate as men, and that experience, qualifications and seniority were being irrationally considered by the Respondent.  Considerable evidence was presented by both counsel on the background, training, experience, and job descriptions of both the Complainant and those other employees referred to in the Complainant's complaint.

24      Having carefully reviewed the evidence, I find that the Complainant was hired by Yves LeRoi at a starting salary of $25,000.00 and that this starting salary was a salary suggested by the Complainant and accepted by the Respondent company.  In regard to the alleged assurance that the Complainant would reach the top end of her level within a year to a year and a half, I find that this allegation not to be proven.  I make this finding because such an assurance was not referred to in the Complainant's offer of employment nor was it ever reported, or acknowledged by management at the Respondent company.  The Respondent company had an apprenticeship and training program in place at the time.  The arrangement with Mr. LeRoi, as alleged by the Complainant, does not follow the program set by the Respondent.

25      In regard to the Complaint that females were not permitted to assist in training junior personnel, I accept the evidence of another female employee of the Respondent company, Tamara Shores, that such training assistance did take place.

26      In regard to the Complainant's advancement through the Respondent company, I accept the evidence of the Respondent, that her advancement with the Respondent was consistent with other employees.  On January 21, 1994, the Complainant was promoted from the AP 3 position to the Mechanic 1 position in accordance with the policies established by the Respondent company.  Her progression may not have been as rapid as she may have wished; however, it was, at the relevant time, consistent with company policy.

27      In regard to the Complainant's allegation that she was not permitted to diversify and work in other areas, I find evidence to the contrary.  The Complainant had requested a work assignment in another area of the Respondent company (riveting department) and was permitted to do so.  Based on the evidence presented, I find that the Respondent did permit the Complainant to diversify into other areas when the work schedule allowed for such.  The opportunities to diversify may not have been as frequent as the Complainant had wished, however, it was done when the opportunity arose.

28      In regard to pay differentials between men and women at the Respondent company, it is clear that pay differentials did exist; however, in my review of the evidence, I find that there was a sufficient rational basis for the Respondent to do so.  When the company moved to its Slemon Park location and commenced operation, there was a clear need on the part of the Respondent to hire employees with prior experience with Pratt & Whitney, the manufacturer of the engines that were the subject of the Respondent's enterprise.  In order to attract the best possible employees, the company offered the salaries that they did.  Much evidence was led in regard to the prior experience of a number of the employees at the Respondent company.  I have extensively reviewed all of the evidence presented, both through the witnesses called and the documents entered as exhibits.  I have extensively reviewed the evidence presented, the resumes for the employees which have been entered, and have considered the seniority of each employee outlined in the Complaint.  I find that for those outlined in the Complainant's complaint, their experience, qualifications, education and seniority with the company did justify their respective positions and their salaries.  Although the Complainant does have impressive qualifications, I find that they are at a lower level in relation to the co-workers mentioned in her complaint.

29      In light of the above, I am satisfied that upon hearing the witnesses, and having reviewed the transcript, that the Complainant has not shown, on a reasonable preponderance of the evidence, that she was discriminated against based upon sex contrary to Section 7(1) of the Act in regard to this aspect of her complaint.  I would, therefore, dismiss this aspect of the complaint.
 
Issue # 2 - Sexist attitudes and sexual harassment with the Company.

30      In regard to sexual harassment, which I have classified as the second issue, the Complainant has alleged a number of incidents of sexual harassment.  She indicates that mistakes made by men were often down played; however, the opposite would occur if the mistake was made by a woman.  She also alleged that women's suggestions or concerns with regard to the work environment were not listened to, whereas similar suggestions made by male inspectors were accepted and implemented.

31      I have reviewed the evidence presented and do not find the Complainant has proven these allegations.

32      At paragraph #2 1 of her complaint, the Complainant states:
 

"I have personally been a subject of sexual comment, actually a cartoon with my name on a female figure and the caption "I party naked!".  I had intended to file a complaint, but when I told the Quality Control Manager, Bill Batchelor, he told me that it was not a good idea and that it would jeopardize my job - so I backed down."

33      Sometime during the Complainant's first six months as an employee with the Respondent Company, she discovered a cartoon beneath plexiglass in the test cell area of the Respondent company.  The Complainant testified that the cartoon showed a background similar to the background in the test cell area.  The cartoon illustrated 5 males, one being a clown.  In the bottom right hand comer of the picture a female figure was shown.  Beneath the illustration of the clown the name Kirk was written, being one of the persons the Complainant was working closely with at the time.  Beneath the female character was inscribed the Complainant's name.  A heart was drawn around both cartoon figures' names and beside the female character the words added "I party naked!".  During her evidence, the Complainant testified as follows:
 
Q.

Now.  What did you do with the cartoon when you saw it?

A.

I removed it and I took it over to inspection and I showed Tammy [Shores] and Peter [MacLellan] and they both, didn't, you know, they chuckled, sort of thing, and I said I don't find it funny.  Then I spoke with Bill Batchelor [Quality Manager].  I was bordering on tears because I did find it very offensive.  I told Bill Batchelor that I didn't appreciate this and that I though, that I should make a complaint.

And at that time, as I said, I was still a contracted worker.  I was not a full time employee.

Q.

You hadn't finished your six months probation.

A.

That's right.  And, Bill Batchelor referred to upper management as dinosaurs, and that it would not be looked upon as favourable, which I immediately said, well than, I'm just kidding. I, you know, I immediately withdrew.

Q.

Your complaint?

A.

Yes. I, I decided immediately that it was not a good idea.

Q.

O.K., what did you do with the cartoon, physically?

A.

I destroyed it.

34      Further in her evidence the Complainant testified:
 
Q.

What did you take offense to about the cartoon?

A.

I took offense to the "I party naked!" very immediately, and then I noticed the names in the hearts around mine and Kirk's name.  At that time, Kirk was training me for the electrical and indicating, and I don't like the inference that it implied.

35      Further in her evidence the Complainant testified:
 
Q.

Yeh.  So, in any event, you took your "complaint" initially to Mr. Batchelor, and because you were still on probation, you didn't pursue it, at his suggestion.

A.

Yes, I tried to make it seem like I, that I had been kidding, because I was worried.  At that time my husband was unemployed, this was our sole source of income, so, I tried to make light of it as much as possible.

Q.

Were you able to forget about it?

A.

No.

Q.

Why did it continue to stick out in your mind, as, as the year 1994 wore on?

A.

Well, the biggest reason being that the female in the foreground is at a lower rank.  If you could see, she's wearing a chevron on her right hand shoulder.  It's a private chevron, whereas the people other than the clown, have what appears to be officer bars.  So, in that reference, because I am military, I, it affected me, personally, because, to me, it represented that they even thought of me as much lesser.

36      Mr. Batchelor, the Quality Control Manager at the Respondent company, testified that he had put an unembellished copy of this cartoon in the test cell area because it bore a striking resemblance to the test cell area of the Respondent company.  In regards to the adorned version, Mr. Batchelor testified that he did not embellish it, nor was he aware as to who did.  It was not established in the evidence as to who embellished the cartoon.  In regard to his conversation with the Complainant, Mr. Batchelor stated:
 

Anne approached me outside of the old, like, that former detail inspection area, when we were in the old shop, and said, have you seen that cartoon in the test cell?  I said, yes.  And she said, I'm thinking of filing a Human Rights Complaint, and I was a little astonished and said, I don't think that will be a good idea.  I thought, given the nature of the cartoon, in that it was neither pornographic, nor obscene, it might have been a little embarrassing, but, it didn't merit a Human Rights investigation.  She could see that I was pretty astonished, I guess, and she just kind of laughed and said, don't worry, I'm just kidding, and went back into the inspection area.

Q.

Why would it be embarrassing?

A.

There was a rumour going around that she was flirting with one of the rest cell apprentices, Kirk.

37      From the evidence it is clear that a complaint was made to the Respondent when the Complainant brought the cartoon to the attend on of Mr. Batchelor.  The authorities reviewed state that when a complaint of harassment is received by an employer, the employer is obligated to respond promptly and effectively with a thorough investigation.  In doing so, the employer must also conduct its investigation with the utmost of sensitivity to the victim.  In this case, I find that no investigation was carried out by the Respondent and, rather than supporting the Complainant and making inquiry into her complaint, the Respondent chose to ignore it.  Moreover, the Respondent advised the Complainant that such a complaint would not be looked upon favourably by upper management.  I also note in the evidence that the Respondent, at the relevant time, did not have a sexual harassment policy in place for their workforce.  Although the Respondent indicated that such a policy may be part of the corporate Mission Statement of its parent company, it is clear in the evidence, that the Respondent did not itself have a written sexual harassment policy in place.

38      In regard to the evidentiary burden in sexual harassment cases, it was held in Bouvier v. Metro Express (1992), 17 C.H.R.R., D/313, that the burden on the victim is only that of establishing that the conduct complained of was: (1) of a sexual nature, (2) unwanted, and (3) humiliating to her.  At paragraph 59 of this decision it states:
 

"in short, sexual harassment consists in unwelcome behaviour of a sexual nature which is an affront to the personal dignity of another person.  It may be blatant or subtle, and may take many forms, but the evidentiary burden on the victim is only that of establishing that the conduct complained of was (1) of a sexual nature, (2) unwanted, and (3) humiliating."

39      I find, based upon the evidence, that the cartoon incident occurred, that its subject matter was sexual in nature, that it was found to be unwelcome by the Complainant, that she communicated her unwelcome feelings to the Respondent, and that an insufficient response was provided to the incident by the Respondent.

40      Having made such a finding one must address two questions, namely: a) Did this one incident amount to sexual harassment, and if so, does this constitute sex discrimination under the Prince Edward Island Human Rights Act? and, b) If so, what is the appropriate remedy for such a discriminatory act?

41      Chief Justice Dickson of the Supreme Court of Canada, in its landmark decision in Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252, defines sexual harassment in the work place as follows:
 

"Without seeking to provide an exhausted 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 effects 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, and 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."

42      Chief Justice Dickson went on to articulate the essence of what amounts to sexual harassment:
 

"The main point in allegations of sexual harassment is that unwelcome sexual conduct has invaded the workplace, irrespective of whether the consequences of the harassment included denial of concrete employment rewards for refusing to participate in sexual activity."

43      It is clear from the Janzen decision that sexual harassment is a phenomenon that is incapable of precise or exhausted definition.  More importantly, it covers a potential spectrum of actions in conduct, from somewhat low key verbal innuendo to attempted rape and rape.

44      In "Sexual Harassment of the Workplace", (2nd edition, Butterworths, Toronto, 1992) at 139, the author gives a concise description of the types of impugned acts what might constitute sexual harassment, including comments, jokes and posters of a sexual nature, that might effect the image of women.

45      The author also explains that there are two different types of sexual harassment: The first is more direct and is based on propositions and sexual advances, while the second is more indirect and is related to behaviour that is intimidating and makes the work environment very difficult. The Complainant's case here lies more in the second type of sexual harassment, which is described in the article as:
 

"Then there is sexual annoyance: Sexual annoyance, the second type of sexual harassment, is sexually related conduct that is hostile, intimidating, or offensive to the employee, but none the less has no direct link to any tangible job benefit or harm.  Rather, this annoying conduct creates a bothersome work environment and effectively makes the workers willingness to endure that environment a term or condition of employment."

46      I also reference guidelines which were issued by the Canadian Human Rights Commission on February 1, 1983, describing sexual harassment as including: (2) unwelcome remarks, jokes, innuendos, or taunting; (4) practical jokes which cause awkwardness or embarrassment.

47      I note the striking breath of the definition of sexual harassment.  Sexual harassment, therefore, includes any unwelcome conduct of a sexual nature that detrimentally affects a person in her or his work environment.

48      Upon applying the authorities of sexual harassment to the present case, I find that the posting of this cartoon in the workplace of the Respondent to constitute sexual harassment.

49      As to whether sexual harassment constitutes sex discrimination, I reference the Janzen decision, wherein Chief Justice Dickson concluded that sexual harassment is sex discrimination.

50      I am very mindful that in this case we are dealing with one alleged incident of sexual harassment.  In Bell v. The Flaming Steer Steak House Tavern Inc. (1980), 1 C.H.R.R. D-155, the first Canadian Board of Inquiry decision on a complaint of sexual harassment, the Board stated at page 156:
 

"However, persistent and frequent conduct is not a condition for an adverse finding under the code because a single incident of an employee being denied equality of employment because of sex is also prohibited activity."

51      As to the employers responsibility in harassment cases, there have been a number of judicial decisions which recognized that an employer is responsible for its employees' acts involving discrimination or harassment, including Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84. In this case, Justice LaForest stated at page D/4333:
 

"Hence, I would conclude that the statute contemplates the imposition of liability on employers for all acts of their employees in the course of employment", interpreted... as being in some way related or associated with the employment.  It is unnecessary to attach any label to this type of liability; it is purely statutory. However, it serves a purpose somewhat similar to that of vicarious liability in tort, by placing responsibility for an organization on those who control it and are in a position to take effective remedial action to remove undesirable conditions."

52      In deciding that discrimination has been proven, I am again mindful that this complaint involves only one isolated incident.  In reviewing the transcript and materials provided, I note, however, that there were other incidents of alleged harassment present at the Respondent company; in particular statements attributed to Mr. LeRoi.  As Mr. LeRoi was not called as a witness, I am obliged to give little weight to the comments purported to have been made by him.

53      Notwithstanding such, I find that the Respondent is liable for failing to provide the Complainant with a harassment-free workplace, by failing to respond to her complaint and by not exercising due diligence to ensure that the workplace was harassment-free.

REMEDY

54      In awarding a remedy, I take into consideration the objects of Human Rights legislation as set out in O'Malley (supra) at p. 547:
 

"The code aims at the removal of discrimination.  This is to state the obvious.  Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination."

55     Section 26(4) of the Act states:
 

"Where the matter referred to the board of inquiry is nor settled between the parties and the board finds a complaint is supported by a reasonable preponderance of the evidence, the board shall report its recommendation to the Commission on the course that ought to be taken with respect to the complaint."

56      Having considered the foregoing, and all the circumstances of this complaint, I recommend the following:

A)   APOLOGY

57      In cases where a respondent's behaviour upon being advised of possible harassment has been marked by insensitivity, which I do find in this case, tribunals have ordered that the Respondent issue a formal written apology to the Complainant.

58      Accordingly, I would recommend that a written apology be provided to the Complainant by the President of the Respondent company within 90 days of this decision.  If the parties are unable to agree on wording, I remain seized to deal with such.

B)   LOSS OF WAGES

59      Having reviewed the evidence, I am not convinced that sexual harassment was a factor in the Complainant's loss of employment.  The evidence presented indicates that her loss of employment was due to excessive absenteeism and a disputed refusal to work overtime.  I find no nexus between this one incident of discriminatory conduct and her loss of employment.

C)   GENERAL DAMAGES

60      I find that the Complainant has suffered hurt feelings and loss of dignity due to the open display of the embellished cartoon.  Accordingly, I recommend that the Respondent to pay to the Complainant the sum of $2,500.00.

61      In making such award, I am mindful that there are no cases completely on point with this case.  However, I have taken into consideration the nature and duration of the harassment, the victim's age, and the psychological impact of the harassment on her.  I have also noted the applicable criteria as set out in the case of Morgan v. Canadian Armed Forces (1989), 10 C.H.R.R.D./6386 at D/6403.

62      I have also considered the case of Pond v. Canada Post Corporation [1994] C.H.R.D. No. 9. In this case, the Complainant alleged sexual harassment by her immediate supervisor, who used a pornographic statue as a basis for making offensive comments about her and permitted posters of naked women to be put up in the workplace.  In finding that sexual harassment had been established, the Tribunal awarded $4,000.00 for psychological injury.  I note, that in the Pond case, the harassment continued over an extended period of time.

63      In this case I have found evidence of hurt feelings and diminishment of self-respect, but do not find that it is of the severity in the case cited to warrant a payment at the high end of the monetary scale.

D)   INTEREST

64      It is clearly established that interest is payable on an award for special compensation.  Therefore, I would recommend that there be an order for interest to be paid on the monies awarded in accordance with the pre-judgment interest provisions in effect in Prince Edward Island, from the date the Complainant was dismissed from her employment to the date of this decision.

E)   POLICY IMPLEMENTATION

65      The Respondent is also ordered, within 90 days of this decision, to develop and implement a Sexual Harassment Policy for all employees.  The Policy shall include: a strong statement of the employer's philosophy concerning sexual harassment; procedures to be followed in response to sexual harassment complaints; and provisions relating to disciplinary consequences.  This Policy will be accompanied by an education plan that explains how the Policy will be disseminated, and the kind of training that will accompany such policy dissemination.  In the event that the parties cannot agree on this Policy, I shall remain seized to make a final determination of it.
 
 

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