Clarity Needed Regarding the Harassment Policy

Topic

Clarity Needed Regarding the Harassment Policy

Case number

• 2013-071 (F&R Date: 2013–10–30)

Description

In a harassment related grievance file, the Committee noted that the Initial Authority had erroneously found that a proper situational assessment (SA) could not be completed because certain elements of a harassment complaint, as described by section 4.1.2 of the Harassment Prevention and Resolution Guidelines (the Guidelines), had not been provided. 

The Committee reviewed sections 4.1.2, 4.2 and 4.3 of the Guidelines and determined that it is not mandatory that a harassment complaint address all the elements of a complaint as described at section 4.1.2 of the guidelines.  The Committee acknowledged that section 4.3 of the policy, if read in isolation, might appear to suggest that a complaint must contain all of the listed elements in order to proceed.  However, the Committee explained that section 4.3 also makes it very clear that upon receipt of a complaint, a Responsible Officer (RO) must complete a SA, having no discretion to do otherwise. 

The Committee further explained that the words of a policy should be interpreted taking into consideration their entire context, including the scheme and intention of the policy. It was the Committee’s view that the intent of section 4.1.2. is to provide the RO with sufficient information to apply the test set out in section 4.3.  If, after conducting a SA, the RO is of the view that the complaint lacks the necessary information to determine whether the alleged actions meet the definition of harassment, the RO must proceed in accordance with section 4.5, which lists actions to be taken when the allegations do not meet the harassment definition. 

The Committee was also concerned by a statement made by the harassment subject matter expert who, while advising the Initial Authority, incorrectly indicated: “…I recommend that a Harassment Investigation is not warranted due to insufficient facts and details, as well as no attempt to use the ADR process in the early stages of the complaint …”. 

The Committee explained that the Guidelines do not require the use of ADR before one is permitted to submit a complaint of harassment.  Moreover, the Committee was surprised to see that a harassment subject matter expert would state that no investigation was required due to a lack of facts and details.  This prompted the Committee to point out to the Chief of the Defence Staff (CDS) that the intent, function, and execution of the SA process continues to be misunderstood and misapplied in the Canadian Armed Forces (CAF).

The Committee has raised this same observation a number of times previously (2009-092, 2012-122, and 2013-001) and the CDS has agreed that there is an issue with the execution of the SA step (2012-072 and 2012-075).  This is a serious shortcoming because, when the assessment is completed incorrectly, such as it was in this particular case, it can result in unfairly denying a complainant an investigation, further compounding their situation. Given the clear evidence that many capable and well-meaning people continue to misread the policy, the Committee concluded that it would be beneficial for the CAF to formally provide clarification and/or education on this issue.

Recommendation

The Committee recommended that the CDS direct that additional clarification and/or education be provided regarding the purpose and conduct of the SA.

The Committee also recommended the CDS direct that the language found in the Guidelines pertaining to the minimum information required for complaint submission, as set out in provisions 3.3.2c, 4.1.2 and 4.3a, be reviewed and clarified, specifically noting that it is not mandatory to address all the Elements of a Complaint in all cases.

Final Authority Decision

The CDS was not convinced that a systemic issue exists with respect to the information required when submitting a complaint, but he forwarded the Committee's systemic recommendation to the Director Human Rights and Diversity for his consideration (DHRD).  As a result, the DHRD informed the CDS that the sections in the Guidelines, identified by the Committee, will be revised and clarified during the drafting of the improved harassment policies.