Confusion Created by Giving Priority to Harassment Complaints Over Grievances for Military Members

Topic

Confusion Created by Giving Priority to Harassment Complaints Over Grievances for Military Members

Case number

• 2009-001 (F&R Date: 2009–12–31)

Description

The Harassment Prevention and Resolution Guidelines (hereafter “the Guidelines”) provide that a harassment complaint will be closed if a member files a grievance on the same issue. However, Article 2.09 of the Canadian Forces Grievance Manual (hereafter “the Manual”) states that a grievance can be suspended if it concerns a harassment complaint that has not been treated by the appropriate Responsible Officer.

The provisions of the Guidelines and those of the Manual are contradictory since the first gives priority to the greivance mechanism, while the second states that the harassment mechanism is to be used first. In my view it is more logical – as the Manual states – to suspend the grievance and first make use of the mechanism created for dealing with complaints of harassment. In addition to enabling the Canadian Forces (CF) to fulfil their obligation to provide a harassment-free workplace, the advantage of this approach is as follows: by determining, first, whether the allegations fit the definition of harassment provided for in DAOD 5012-0 and, if they do, ordering an investigation, the evidence gathered in that investigation can be used by the IA and the FA to act on any grievance that may be submitted against the decision of an RO. Moreover, allegations of harassment treated by the process provided for in the DAOD will be treated more expeditiously and thus closer in time to the incidents raised.

In effect, if a harassment complaint utilizes the process reserved for grievances, the CDS, when he reviews the file, cannot conduct his own investigation if he considers that the allegations meet the definition of harassment; instead he must refer the harassment allegations back to the appropriate CF authorities so that they may conduct an investigation. The parties involved therefore return to square one, thus incurring further delays. Alternatively, in the majority of the cases examined by the Board, the passage of time and the resulting absence of witnesses and fading of memories leave the CDS with no other choice, in the context of the grievance process, but to conclude that there would be no point in sending the harassment allegations back for investigation, and the grievance on the issue is therefore denied.

Although it would be appropriate to modify the directive in order to correct this contradiction, I understand that any amendment to DAOD 5012-0 cannot be made without the approval of the Assistant Deputy Minister (Human Resources - Civilian) and the Chief of Military Personnel since this directive is applicable to both civilian and military personnel. In addition, the Board has been informed that the Director Human Rights and Diversity has already recommended modifications to the DAOD. I understand as well, that Treasury Board is on the verge of adopting a new policy in matters of harassment concerning Public Service employees. Consequently, it would appear that the directive will not amended until this new policy on harassment becomes effective.

Recommendation

However, until modifications to the DAOD can be effected and in order to eliminate any confusion, I recommend that the CDS order the appropriate CF authority to clarify the meaning of article 4.10 of the Guidelines, as it applies to CF members, through the promulgation of a CANFORGEN.

Final Authority Decision

With regard to the Board's systemic recommendation, the CDS indicated that DAOD 5012 0 concerning harassment is presently under review and that a DAOD concerning the grievance process is being developed. He was therefore satisfied that the discrepancy between the two processes would be corrected within a reasonable time.