# 2022-131 Harassment, Harassment

Case summary

F&R Date: 2023-06-05

The grievor contested a portion of the harassment investigation final report and the Responsible Officer (RO) decision letter related to an allegation of harassment to which she was the respondent. The grievor stated that findings were made based on information that was not disclosed to her during the investigation process and this prevented her from submitting proper representations, which is contrary to the Harassment Prevention and Resolution Instructions (HPRI) and violates her right to procedural fairness. The grievor noted that when she attempted to address the issue with the RO she was advised that her only recourse was to submit an Access to Information and Privacy request. The grievor stated that this information was further used to comment negatively on her character in the final report while withholding the names of who made the comments as well as the circumstances surrounding the comments. She further added that the content of her submissions to the investigator were not accurately reflected in the final report and noted that she only received a copy of the Terms of Reference (TOR) after the investigation had concluded and only after much prompting on her part. As redress, the grievor requested that the final report and the RO's decision letter be amended to remove any conclusions drawn from the interviews conducted with witnesses, for which she did not have the opportunity to refute or present alternative witness statements for.

The Commander of 4 Health Services Group acting as the Initial Authority (IA) denied the grievor redress. The IA stated that the RO was expressing their concern regarding the grievor's inappropriate leadership behavior, following an evaluation of the situation, and stated that they were not in a position to overrule the RO's opinion. The IA further indicated that the content of the final report conformed with the direction set out in the TOR as the investigator provided a report with findings and analysis accordingly, adding that the report was submitted to, and accepted by, the RO in accordance with the applicable policies.

The Committee found that there were several issues with how the RO fulfilled their duties in this process. Based on the comments provided by the RO, the Committee found that the RO failed to properly review the investigation report as well as the evidence collected prior to determining if the allegation of harassment was founded or not. The Committee also found that by relying solely on the investigator and not conducting their own review of the documentary evidence, the RO absconded their duties as final decision maker as laid out in the HPRI, resulting in the investigator becoming de facto the RO. The Committee found that the RO failed to ensure that the investigator properly adhered to the direction set by the HPRI in how they conducted their investigation, most importantly in the withholding of evidence from the grievor and not affording her the ability to comment on or refute them. The promise made by the investigator to these witnesses for anonymity has no basis within the HPRI, however through no fault of their own these witnesses availed themselves of this offer. These statements formed the basis for the supplemental observations made by the investigator in the final report. In order to avoid any unintended consequences, rather than disclosing these statements to the grievor, the Committee recommended to the Final Authority to afford the grievor redress by directing that the final report and the RO's decision letter be amended to remove any reference to the supplemental observations made by the investigator and any findings or decisions stemming from them.

FA Decision Summary 

The Director - Canadian Forces Grievance Authority (CFGA), acting as Final Authority, agreed with the Committee's findings and recommendation and directed that the Chief of Military Personnel ensure that the documents in harassment complaint file be removed from the unit's harassment files and forwarded to the CFGA for disposal in accordance with the Library and Archives of Canada Act.