Worker demoted after inappropriate comments and texts to summer students
The firing of an Ontario city parks worker over his sexual harassment of summer students has been overturned by an arbitrator, but he won’t be allowed to return to his old job.
Sean Pastoor worked in the parks department at the City of Woodstock, Ont., for 20 years with no disciplinary problems. For the last 10 of those years, Pastoor was responsible for supervising students who worked in the department over the summer.
In June 2009, when Pastoor was an assistant supervisor, a 21-year-old female summer student filed a sexual harassment complaint against him, claiming he had harassed her and other female summer students since she started working in the department in 2007.
Sexual comments to summer students
The student claimed Pastoor made sexual comments and sent inappropriate text messages to her and another female student over the course of the summer. The messages were sent to her work and personal phone. She also said he invited the two young women to join him and his friend in his hot tub and said he would like to play a game of naked “Marco Polo” in his pool with them. Other incidents included Pastoor:
• asking if all girls liked to be choked
• inviting the two summer students, and later the complainant’s 16-year-old sister who also worked part time at the parks department, to his hot tub
• sending texts asking her to marry him, saying he wanted to eat ice cream off her body, commenting on her workout outfits and asking her to pick him up at a bar at 1 a.m.
The summer student admitted she and her co-worker sometimes willingly took part in the conversations and responded inappropriately to the suggestive comments. They also gave him a framed photograph of the two of them and sex-themed cards. However, she said she thought this would lead to better work assignments and she didn’t come forward earlier because she was afraid of losing her job.
After the complaint was made, the city interviewed other current and former summer students. One employee who was a summer student a few years earlier reported Pastoor had tried to include himself in the after-hours social activities of female summer students and sometimes called her on evenings and weekends to invite her to bars. She also said he once gave an inappropriate compliment while she was at work.
Another former summer student said she was warned by full-time employees about Pastoor’s tendency to make sexually appropriate comments to female students, which she said he did on “almost a daily basis.” She didn’t formally complain because she was afraid she wouldn’t be rehired, though she told him directly he was being a “pervert.” After that comment, Pastoor left her alone, she said.
It also came to light that Pastoor began dating a summer student in 2007 and eventually moved in with her later that year.
An investigation of Pastoor’s work computer revealed he had several personal pictures loaded onto it, including pictures of the complainant in non-work settings and inappropriate ones of her at work, pictures of the student he dated lying in bed with him, pictures of himself making lewd gestures, and a series of photos of two young girls walking, taken from the back. Pastoor said he didn’t take most of the pictures but loaded them onto the computer, which other employees had access to.
Not harassment, just banter: Fired supervisor
On July 17, 2009, the city decided to terminate Pastoor’s employment for “totally inappropriate, sexually harassing and intimidating” behaviour and abusing his role as a supervisor. Pastoor filed a grievance through the union, claiming he was fired without cause. He also denied harassing the students, claiming if he knew the behaviour was unwanted, he would have stopped, as he did with the student who called him a pervert.
The city did not have a policy prohibiting fraternization of supervisors with other employees, found the arbitrator, but noted these were students who were younger than him and over whom he had supervisory authority. It should have occurred to Pastoor his behaviour was inappropriate, especially regarding the 16-year-old, said the arbitrator, and the city would have had a problem if any of the students’ parents had become aware of the situation and complained.
Pastoor’s behaviour constituted vexatious behaviour that he reasonably should have known to be unwelcome, meeting the definition of harassment in the Ontario Human Rights Code. Though the city’s harassment policy allowed a certain level of “social bantering,” Pastoor’s comments were not acceptable bantering, said the arbitrator. The photos on the computer also constituted serious misconduct.
Pastoor should not have simply expected the students to tell him if his comments were inappropriate, since they were subordinates and “may have lacked the maturity and wherewithal to be able to discern the appropriate reaction” to the comments, found the arbitrator.
However, Pastoor’s 20 years of discipline-free service and the fact the harassment didn’t go beyond verbal and texted comments led the arbitrator to determine he should have another chance at employment. The city was ordered to reinstate Pastoor with a two-month suspension.
However, the arbitrator found Pastoor couldn’t be trusted with the responsibilities of a supervisory position and ruled he be “indefinitely demoted” to a non-supervisory job.
“Through his actions, (Pastoor) has unequivocally demonstrated that he lacked an appreciation of the role of a supervisor and the responsibilities inherent in such a position,” said the arbitrator.
For more information see:
•Woodstock (City) v. C.U.P.E., Local 1146, 2010 CarswellOnt 8106 (Ont. Arb. Bd.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.
