# 2012-075 Harassment, Situational Assessment

Case Summary

F&R Date: 2012–10–22

The grievor submitted a complaint, alleging harassment on the part of two of his superiors in the form of improper conduct (racist comments), unfair treatment, as well as verbal abuse. Some three months later, the grievor's Commanding Officer (CO) informed the grievor that following a situational assessment (SA) and a unit level investigation, he had determined that the allegations did not meet all of the conditions to be considered harassment; specifically, the CO indicated he was not convinced that the inappropriate comment had been directed at the grievor. The CO added, however, that the alleged behaviour was inappropriate and one of the respondents would be required to attend harassment training.

The grievor submitted a grievance arguing that his complaint was not handled properly by the CO in that it was not dealt within a reasonable amount of time and the CO failed to conduct a fair and proper investigation. The grievor included three witness statements confirming that inappropriate comments had been made and were directed at him. As redress, the grievor requested a re-examination of his allegations, the conduct of an investigation and that appropriate disciplinary action be taken against the two respondents.

In his decision, the initial authority (IA) acknowledged there were deficiencies in the initial handling of the complaint and re-initiated a SA. The IA explained that he sought responses from the two respondents who both denied the allegations; however, based on his review of the three witness statements he concluded that the allegations did meet the definition of harassment in that "objectionable" comments were made which had created a negative and offensive environment.

The IA also stated he was satisfied with the actions taken by the CO and that an investigation was not required.

The grievor requested adjudication by the Chief of the Defence Staff (CDS) and expressed the view that personnel have not been held accountable for their actions. In a subsequent submission to the Board, he requested compensation for his pain and suffering, as well as letters of regret and apology from various personnel.

The Board reviewed the applicable policies pertaining to harassment, including the Harassment Prevention and Resolution Guidelines. The Board found that according to the Guidelines, the grievor's CO, as the Responsible Officer should have acknowledged receipt of the complaint and notified both respondents within five working days. Despite the CO's explanation on exceeding the normal time limit, the Board found that he failed to administer the grievor's harassment complaint within a reasonable timeframe. The Board added that it was incumbent upon the CO's superior to address this issue as he sees fit.

The Board noted that the IA set aside the CO's decision and conducted his own SA. From comments in his decision to the grievor, the Board concluded that the IA considered the SA to be an initial investigation. The Board disagreed and explained that, in fact, the SA is simply a determination whether the allegations would amount to harassment, if proven, on the basis of the definition contained within the policy and there is to be no investigation, no weighing of evidence, and no assessment of credibility at this point. The Board found that both the IA and the grievor's CO failed to conduct a proper SA and the grievor's complaint was not handled properly, in accordance with the policy. In addition, the Board was of the opinion that each of the grievor's allegations, as stated, met the definition of harassment.

The Board noted that the grievor was still working in the same environment and operated at times in close proximity to the two respondents. In the circumstances, despite the fact that measures aimed at addressing the situation were taken, in view of its finding that both SAs were flawed, and based on concerns raised by the grievor, the Board was of the view that a thorough investigation of the initial harassment complaint was necessary.

On the matter of financial compensation, the Board noted that the CDS does not have the authority to grant such compensation; however, the Board pointed out that, should the grievor wish to pursue the issue, one available option is to make a claim against the Crown through the Director Claims and Civil Litigation. As well, in the Board's opinion, the request by the grievor that administrative and/or disciplinary action be taken against the respondents was premature at this stage given that the results of an investigation were unknown.

The Board recommended that the CDS partially uphold the grievance.

The Board recommended the CDS direct that an independent investigation be conducted into the grievor's complaint and, for the sake of ensuring complete transparency, the Board recommended that the investigators be external to the grievor's unit and Command.

CDS Decision Summary

CDS Decision Date: 2013–06–19

The CDS agreed with the Board's findings and recommendations that the grievance be partially upheld and that a harassment investigation be initiated with a private consulting firm to assist with the investigation.