Grievance Case Summary - G-354-355-356

The Grievor lodged three grievances against three instructors of a weapons training course. According to the Grievor, the instructors had decided, by mutual agreement, to ensure that he failed the course. The Grievor also asked for additional information. The three Respondents claimed that the grievances should be inadmissible, because there is another procedure for processing harassment complaints. The Level I Adjudicator concluded that the grievances had been presented prematurely since the Grievor should have followed the established procedures so that a supervisor could address the harassment complaint.

It should be noted that the Grievor presented a workplace harassment complaint against the Respondents, before having received the decision of the Level I Adjudicator. After receiving the decision of the Level I Adjudicator, the Grievor presented his grievances to Level II and again requested additional information. He asked the Level II Adjudicator to wait before ruling on the admissibility of the grievances, since he was waiting for a decision on his harassment complaint. The Grievor sent the results of the investigation of his complaint to the External Review Committee which indicated that the Grievor's complaint was not founded. The Committee obtained a copy of the investigation report. It sent this report to all the parties and it sent the documents provided by the Grievor to the Respondents. The Committee gave them an opportunity to present their views regarding the new documentation and the merits of the allegations. It also asked the Respondents to respond to the request for additional information that was presented by the Grievor at Level I.

The Committee does not agree with the Level I Adjudicator regarding the premature nature of the grievances. Under the Treasury Board Policy on harassment, an alleged victim of harassment has a number of options for recourse and the investigation process described in the policy is discretionary. There is no provision in the Act for the Level I Adjudicator, in the context of the grievance process, to not rule on the merits of the grievance simply because the process set out in the Treasury Board policy was not used, or because a decision regarding a complaint has not yet been handed down. With regard to the Grievor's request for other documents, according to the Committee, the documents requested by the Grievor were not relevant or necessary.

As for the merits of the grievances, the Committee notes that there is adequate evidence for rendering a decision, and the parties had the opportunity to be heard. In addition, it is in the parties' interest that the grievances be settled as quickly as possible. In Girouard vs Canada (Attorney General), 2005 FC 915, the Federal Court of Canada recognized that, in some cases, procedural fairness requires that a decision on the merits be made as quickly as possible when a number of years have passed.

The Committee does not believe that the Respondents' actions constituted a form of harassment against the Grievor. In its opinion, a reasonable person would not consider the behaviour of the Respondents to be out of place or offensive to the Grievor. There is nothing to indicate that there was collusion among the course instructors to ensure that the Grievor would fail.

The grievances should be denied.

The Commissioner rendered his decisions in these matters, as summarized by his office:

[TRANSLATION] The Commissioner addressed the admissibility of the grievances by finding that the grievances were not premature since the Grievor was entitled to file a harassment complaint and present a grievance in connection with the same incident. It was not necessary to have an investigation report on the complaint to be able to present the grievances. The Commissioner also determined that the Grievor had standing. The Level I Adjudicator was therefore required to decide the grievances on their merits and ensure that there was enough information in the file to be able to fully consider the issue and make a decision. The Adjudicator was required to first address the Grievor's request for relevant documentation and then render his decision on the merits or, if he deemed it necessary, request additional information.

Having decided that the grievances were not premature, the Commissioner agreed to study the merits of the grievances himself rather than sending them back to Level I since he had enough submissions and information and it was important that the grievances be disposed of as soon as possible to ensure procedural fairness.

As regards the merits of the grievances, the Commissioner considered all the information, including current policies and the investigation report, and found that the Respondent's actions, words and decisions towards the Grievor did not constitute harassment. The Commissioner therefore denied the grievances.