Grievance Case Summary - G-416

A harrassment complaint was filed against the Grievor. After an initial investigation, the complaint was determined to be unfounded. The Grievor received administrative guidance with respect to his personnel management skills. The Complainant grieved the decision and a second investigation was ordered. The result was a finding that the original complaint was founded in part.

The Grievor filed a grievance claiming that the second investigation was unfair as it amounted to double jeopardy and was barred as he had already been subject to disciplinary action. He also argued that the second investigation and decision were unfair due to the delay involved.

The Grievor also claimed that the original complaint was expanded from two to four allegations in the course of the second investigation and that he had been denied the chance to make full answer and defence because information was withheld from him and the original complaint lacked sufficient detail.

The Committee found that the fact that the first investigation was not conducted fairly did not entitle the Grievor to a stay of proceedings. A second investigation was the appropriate way to proceed.

The Committee found that the Respondent was not prevented from launching the second investigation on the basis of the principle of double jeopardy as enshrined in section 11(h) of the Charter of Rights and Freedoms as this section of the Charter does not apply to administrative proceedings. Further, the administrative guidance the Grievor received after the first harassment complaint decision did not constitute discipline and, therefore, was not a bar to the second investigation.

The Committee found that the Grievor's submission that the initial harassment complaint was expanded from two allegations to four was not supported as the initial complaint contained the basic information related to all four allegations.

The Committee also found that, while there was considerable delay to the proceedings, these delays were not such as to deprive the Grievor of his right to a fair process as a reasonable person would not conclude that the delay was unacceptable to the point of being so oppressive as to taint the proceedings".

Finally the Committee found that the requirement for fairness was not met by the Grievor receiving only a copy of the original complaint, because it lacked enough detail for him to be able to defend himself against certain of the allegations.

The Committee recommended to the Commissioner of the RCMP that the grievance be allowed.

The Comissioner has rendered a decision in this matter, as summarized by his office:

Acting Commissioner William Sweeney allowed the grievance in part.

Acting Commissioner Sweeney found that it was appropriate to conduct a second investigation and that the Respondent was not barred from doing so, whether on the basis of the principle of double jeopardy or due to administrative guidance having been provided to the Grievor.

Acting Commissioner Sweeney agreed with the ERC that the scope of the investigation was not expanded: the categorization of the allegations in the harassment complaint into four heads instead of two did not add anything to the investigation that had not already been raised as part of the complaint.

The Grievor was not deprived of his right to a fair process due to delay, especially in light of the fact that the reason for the delay was to rectify shortcomings of an earlier process that negatively affected the Grievor.

Acting Commissioner Sweeney concluded that, while the second investigation was procedurally more fair than the first, not informing the Grievor of the whole case he had to meet was a shortfall of the second process. He found that two of the allegations in the complaint were too vague for the Grievor to fashion a meaningful response in his defence. Although further clarification and examples were gathered from the Complainant by way of an investigation, the Grievor was never privy to that information, even though such particulars were taken into consideration by the Respondent. The latter therefore did not have the benefit of the Grievor's reply, leading to a potentially skewed analysis. To prevent this situation, the Grievor should have been provided with additional particulars of the Complainant's allegations. These particulars could have been provided by way of: the Respondent asking the Complainant for more details, prior to the investigation; the partial disclosure of the Complainant's witness statement (ie. excerpts relevant to the two allegations); and/or the disclosure of a summary of the information provided in the Complainant's witness statement relevant to the two allegations. At most, the complete disclosure of the Complainant's witness statement (or a summary of this statement) was still an option, as long as it was possible to do so without breaching the Complainant's privacy and confidentiality rights. Since this was not done, the Respondent did not have all the necessary information required to render a decision with respect to those two allegations. Acting Commissioner Sweeney agreed with the ERC that the grievance should be allowed (in part however) on the basis of his conclusions on this issue.

With respect to the remaining allegation of harassment still at issue, (the fourth having been deemed unfounded, a finding not challenged by the Grievor), Acting Commissioner Sweeney concluded that there were sufficient particulars surrounding this allegation and the Grievor was thus in a position to formulate a complete response. After reviewing the relevant evidence in the grievance record, Acting Commissioner Sweeney found that the Respondent was correct in deciding that the Grievor's behaviour as described in that allegation constituted harassment. Accordingly, the Respondent's decision on that allegation was maintained.