Grievance Case Summary - G-216

The Grievor took part in an undercover operation which led to numerous arrests. A question later arose as to the propriety of the way the Grievor and another undercover operator had identified one of the persons arrested. An officer in the division in which the operation took place initiated an internal investigation into the conduct of the Grievor and the other operator. Both operators were removed from the national undercover operators' pool pending the investigation. The internal investigation was later discontinued, apparently on the 'understanding' that the operators would not be reinstated to the national undercover pool and would never be used as undercover operators again. The two officers who had been instrumental in the initiation and discontinuance of the investigation sent correspondence to the Drug Enforcement Directorate (DED) regarding their view that the Grievor should not be reinstated into the national undercover operators' pool in light of allegations of misconduct. DED eventually reinstated the operators into the national undercover pool, over the objections of the officers.

The Grievor filed a complaint of harassment and abuse of authority against the two officers, arguing that his career in the undercover field had been destroyed by the accusations and unproven allegations made by them. He argued that the officers had denied him the opportunity to answer the allegations when they had ended the internal investigation and had sought to impose punitive measures on him. After the complaint was investigated, the Appropriate Officer found it to be unsubstantiated. He found that there had been no harassment, that the allegations made by the officers were not unfounded, but merely unproven, and that it had been a legitimate exercise of managerial authority to make the recommendations to DED. The Grievor then filed a grievance against the Appropriate Officer's decision. The Grievance Advisory Board recommended that the Grievor had no standing, since it found that he had alleged abuse of authority but that the definition of harassment had not included abuse of authority at the relevant time. The Level I adjudicator examined whether the officers' behaviour constituted harassment under the Force policy definition, and found that it did not. The Grievor sought Level II adjudication and the matter was referred to the Committee.

On January 5, 1999, the ERC issued its findings and recommendations. The Committee found that the RCMP Harassment Policy is subservient to the Treasury Board (TB) Harassment Policy, and found that the TB policy at the relevant time included abuse of authority in its definition of harassment. The Committee noted also that actions which amount to abuse of authority would certainly meet the general definition of harassment in both the RCMP and TB policies. The relevant question was whether the actions of the officers were "improper", were directed at and offensive to the Grievor, and were such that the officers "knew or ought to have known" that they would be unwelcome. To amount to abuse of authority, conduct must constitute an improper use of power to interfere with or influence the career of an employee.

The Committee found that while the discontinuance of an internal investigation was a legitimate exercise of managerial power, to thereafter continue making allegations of misconduct with regard to the conduct that was the subject of that investigation was improper. The reason the issue remained unresolved was that the investigation was discontinued by the officers. The damaging accusations that were made were known by the officers to be unproven. These improper actions were offensive to the Grievor, the officers knew or ought to have known that they would be unwelcome and they constituted an improper use of power in order to influence the Grievor's career in undercover work. The Committee recommended that the grievance be upheld with regard to the allegations of harassment against both officers.

On March 19, 1999, the Commissioner rendered his decision. It is as follows, as summarized by his office:

The Commissioner agreed with the Committee that the Grievor met the criteria for standing to present the grievance and on the issue of timeliness. As for the merits of the grievance, the Commissioner concurred with the ERC's analysis. He directed that the C.O. of the concerned Division address a formal letter of apology to the Grievor for failing to provide him with a harassment-free workplace. He also directed that all of the correspondence at issue be removed from all files. Finally, the Commissioner directed that a review be done to ensure that the Grievor is not in any way barred from operating as an undercover operator. The Commissioner found the delay in resolving this grievance to be unfortunate.