# 2012-074 Harassment

Harassment

Case Summary

F&R Date: 2012–11–27

In September 2005, the grievor, who was serving outside Canada, was charged under the Code of Service Discipline for failing to maintain dress standards. On 3 October 2005, the grievor submitted a harassment complaint against his Warrant Officer (WO) containing 35 examples of comments and situations which, in his view, constituted harassment. The Complaint comprised allegations of abuse of authority, including the manner in which the charges had been laid and the fact that the WO constantly reminded him of his poor personnel evaluation report (PER), at times in front of others.

Following a preliminary situational assessment (SA) of the complaint, the grievor's Commanding Officer (CO) concluded the allegations did not meet the definition of harassment. On 15 November 2005, the grievor submitted a grievance requesting that a harassment investigation be conducted by an independent authority.

The initial authority (IA) first agreed with the conclusion of the SA, but following additional comments by the grievor later ordered a harassment investigation. Acting as the Responsible Officer (RO), the IA found that the allegations had not been proven; however, having noted an "irreconcilable schism" between the grievor and his chain of command (CoC), he ordered that the grievor be repatriated one year early. It would appear that the grievor prepared a grievance on 18 May 2006; however, there is no evidence that the grievance was ever submitted. On 30 June 2006, the grievor's legal counsel requested that the grievor's grievances (the grievor had also submitted a grievance concerning his PER) be placed in abeyance until completion of the disciplinary proceedings.

On 26 August 2008, the grievor's legal counsel wrote to the Director General Canadian Forces Grievance Authority (DGCFGA) requesting authorization to pursue the grievances, including the harassment complaint, despite the expired deadlines for submission. The DGCFGA answered that the final authority was unable to consider and make a determination until the grievor "articulates the specific nature of any additional grievances in writing..." through his CO. On 16 December 2008, the grievor submitted a grievance which essentially reiterated the allegations and requests set out in the unsigned grievance of 18 May 2006.

On 29 June 2012, following an inquiry by the Canadian Forces Ombudsman's Office, the DGCFGA asked the grievor if he still wished to pursue his grievance. The grievor replied in the affirmative and the file was referred to the Board.

The grievor took issue with the RO's decision to exclude the charges laid against him from the scope of the investigation. He was of the view that the circumstances leading to the charges could have met the definition of abuse of authority. The grievor also contended that some of the circumstances surrounding his 2004/2005 PER, including the constant referral to the PER by the respondent should have been examined by the investigators as they were relevant to his harassment allegations. As for his early repatriation, the grievor's position was that this decision was unwarranted and caused damage to his career. The grievor initially requested a determination with respect to his complaint, full remuneration of all benefits and allowances he lost due to his repatriation, financial compensation for pain and suffering, as well as apologies from the respondent and his CoC; however, in his latest correspondence with the Board, he indicated that he now simply requests a review of his harassment complaint.

Although an IA decided in response to the initial grievance that a harassment investigation should take place, no IA was assigned to review the 16 December 2008 grievance in which the grievor took issue with the RO decision resulting from the investigation.

The Board noted that the file materials suggests that the grievance of May 2006 was not properly submitted. The Board did not see the usefulness of considering this matter further given that the DGCFGA later authorized the grievor to re-submit his grievance in which he challenged the omission of certain evidence from the harassment investigation and the RO's decision; the Board therefore turned its mind to the grievance of 16 December 2008.

The Board pointed out that it was regrettable that the file lay dormant until June 2012 for no apparent reason. The Board also noted that while the grievance took issue with the terms of reference (TOR) and the investigation, neither a copy of the investigation report itself nor the TOR was in the file materials; attempts by the Board to locate and obtain this important documentation was unsuccessful. Furthermore, the Board was of the view that even if these documents were available and now found to be deficient, there would be little point in ordering a new investigation into events that occurred seven years ago as most of the parties involved, including the grievor, were now released.

The Board was of the opinion that whether or not the RO was satisfied that harassment occurred, the file materials revealed the presence of a workplace conflict and the grievor's allegations raised some concerns about the handling of his complaints. In the absence of the complete file, the Board could not determine whether the RO's conclusion was reasonable. Nonetheless, the Board felt compelled to comment further as the grievor's allegations deserved some consideration to the extent that was possible given the circumstances.

The Board noted that it appeared from the RO's comments that neither the CO nor himself was of the view that the grievor's allegations relating to the disciplinary charges and the PER could constitute harassment. Therefore, these two issues were evidently left out of the harassment investigation. As the grievor contended, regardless of the charges and the content of the PER, the circumstances which led to the charges and the way he was treated in relation with his dress standards may have constituted abuse of authority. In the Board's view, the exclusion of those allegations, in particular the ones indicating the grievor was reminded on more than one occasion, sometimes in the presence of others, that he was the recipient of an inferior PER, potentially distorted the content of the complaint and had an impact on the conclusions following the investigation. In the Board's opinion, the fact that the grievor had submitted a separate grievance relating to the content of the PER was irrelevant to the question

of harassment.

Furthermore, the Board found that little consideration appeared to have been given to the grievor's perception of the respondent's attitude towards him and opined that enquiries at determining if other members of the unit felt offended by the respondent may have been appropriate while keeping in mind, of course, that one person may be reasonably offended by a remark whereas another would not. As well, the Board was of the view that the grievor's contentions that some of the allegations were not considered by the investigators because of "a lack of malicious intent" was also problematic in terms of the conclusions of the investigation. However, in the absence of all relevant documents, the Board could not determine whether the proper standard of proof was condisered and whether the decision rendered was justified and reasonable.

The Board noted that although the grievor initially had some issues with the decision to repatriate him, he eventually came to the conclusion that such action was taken in his best interest. Concerning the foreign duty allowances, the Board pointed out that they are provided to offset the cost of living outside Canada and that there is no entitlement otherwise. Finally, the Board added that if the grievor wished to pursue damages, he would have to make a claim against the Crown through the Director Claims and Civil Litigation as no authority exists within the grievance system to address these claims.

The Board recommended that the Chief of the Defence Staff (CDS) partially uphold the grievance.

The Board recommended that the CDS express regret to the grievor for the way his file was handled.

CDS Decision Summary

CDS Decision Date: 2013–07–10

The CDS disagreed with the Board's recommendations that the grievance be partially upheld and that regret be expressed to the grievor with regard to the handling of his file. The CDS was satisfied that the grievor's harassment complaint was conducted in accordance with the procedural fairness principles and that the Responsible Officer decision was reasonable in the circumstances.

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