Human Rights Office

Human Rights Office
Human Rights Office

Memorial University of Newfoundland Faculty Association v. Memorial University of Newfoundland, 2015 CanLII82326

Summary

The following case is a grievance filed by the Memorial University of Newfoundland Faculty Association (MUNFA) on behalf of Dr. Sutradhar.  The MUNFA is grieving a 20-day suspension of pay that was imposed upon Dr. Sutradhar following a complaint from a graduate student of unwanted sexual touching and investigated by the respondent, Memorial University of Newfoundland (MUN).

The complainant of sexual harassment against Dr. Sutradhar was an international graduate student under the supervision of Dr. Sutradhar.  Her claim is that on several occasions he touched her in inappropriate ways.  The Head of the Department of Mathematics and Statistics, confirms that he instructed Dr. Sutradhar to alter the configuration of his office so that the desk was place in a way that it separated him and his students.  This never occurred and the placemen to furniture necessitated students sitting directly beside Dr. Sutradhar.  The complainant states that during their regular meetings he would touch her arm and leg and on one occasion he moved his hand up her skirt.

Following the complainant’s allegations the university conducted an investigation.  Using MUN’s policy on harassment and discrimination, they followed the prescribed procedures and concluded that on a balance of probabilities that sexual harassment took place.  In considering the nature and severity of the sexual harassment, the university imposed a 20-day suspension of pay.

The university submitted they followed the prescribed process under the harassment and discrimination policy and given the outcome of the investigation saw fit to impose a 20-day suspension of pay.  Stating that, the decision was determined with “having regard to the repeated physical contact over a lengthy period of time, the increasing seriousness of the contact, and the power imbalance in the relationship”.

The Association on behalf of the Grievor submitted that the complainant was not a credible witness and that the Arbitrator should decide credibility in favour of the Grievor.  The Association noted that the complainant gave multiple contradictory statements throughout the complaint process and insinuated the complaint was precipitated by the fact that the complainant was performing poorly within her graduate program.

 

Questions to be Determined and Findings

  1. What is the effect, if any, of the conduct of the investigation by the Investigator; (NONE)
  2. Did the Employer have just cause to impose discipline on the Grievor on the grounds of sexual harassment; and (YES)
  3. Did the employer have just cause to impose the penalty of a 20 day suspension without pay? (YES)

Analysis

The Board reserves the right to review the procedures undertaken by the Investigator and determined whether they aligned with Procedural Fairness as outlined in the MUNFA Collective Agreement.

The Grievor stated that the Investigator should not have required face-to-face contact for the interview and that his written responses should not adversely impact him.  This Board stated that it is not for them to tell an Investigator how to go about the investigation but rather to determine whether the procedure was followed.

The Board finds that the Investigator’s investigation as well as the conduct of the University President are aligned with the Procedures as outlined in the MUNFA Collective Agreement.

In determining on a balance of probabilities whether the Employer proved the allegations, the Board considered Faryna v. Chorny with respect to credibility:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must be to reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

The Board considered the relationship with the Grievor and complainant in this situation, as well as the Grievor’s failure to heed the advice of the Department Head with respect to his office furniture arrangement and in weighing the credibility the Board accepts the complainant’s version of events.

With respect to the 20 days suspension without pay, the Board considered that the complaints spanned over a period of time, the complainant was vulnerable due to her status as an international student and a graduate student and therefore the Board ruled that the 20 day suspension was to be upheld.