Grievance Case Summary - G-417

The Grievor presented a grievance alleging that he was a victim of harassment by his unit manager. He agreed to have the grievance put on hold so that a harassment complaint could be filed with the Respondent. The Respondent determined that an investigation into the complaint was not justified. The Grievor wrote to the grievance administrator stating that he wanted to continue with the grievance. He indicated that the Respondent was biased, partisan, and had a personal interest in the outcome. The Grievor asked for access to a number of documents.

The Level 1 Adjudicator decided that certain key documents were to be provided to the Grievor. The Respondent provided only one of the key documents. The Level I Adjudicator referred the file to the Grievance Advisory Board (GAB) which concluded that the Grievor failed to prove that the Respondent made an error in not initiating a harassment investigation, or that the Grievor was prejudiced by the error. The Level I Adjudicator accepted the reasons of the GAB and rejected the grievance.

The Grievor did not receive all of the documents identified by the Level l Adjudicator as relevant to the present grievance. This breach violated the duty to act fairly.

The Treasury Board's Policy on the Prevention and Resolution of Harassment in the Workplace (TB Policy) requires delegated managers to be impartial in any complaint process in which they are involved. This is also an essential element of the duty to act fairly.

The Committee found that there was an appearance of bias in this case. Firstly, the Respondent had been involved in the events leading to the grievance and had previously discussed some aspects of the complaint with the Grievor. Also, the Respondent noted in his reasons that the Grievor had criticized his management of the unit. The Committee also found that the Respondent did not respect RCMP policy which required that he propose dispute resolution options to the parties.

The Committee recommended that the grievance be allowed and that the Commissioner order that the harassment complaint be returned to a new delegated manager to be dealt with according to the TB Policy.

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

The Grievor submitted documents to the ERC that he had not submitted at Level I. The Commissioner found that this additional information should not be considered in the review of the grievance, since the Grievor failed to demonstrate that he could not reasonably have known these documents existed when he presented his grievance at Level I.

The Commissioner found that the 30-day time limit to present a Level I grievance was not respected, which is a ground for deeming the Grievor’s grievance to be inadmissible.

Notwithstanding this finding, since the Level I Adjudicator and the ERC ruled on the merits of the grievance, the Commissioner decided to do likewise and review all the issues raised in the grievance.

The Commissioner agreed with the ERC that the Respondent breached his duty to act fairly by failing to disclose to the Grievor all the documents that the Level I Adjudicator had ordered him to disclose.

The Commissioner agreed with the ERC that the Respondent appeared to show bias. The Respondent’s finding in his decision not to investigate the Grievor’s harassment complaint to the effect that he did not need to conduct an investigation because he had been involved in the events, could give rise to a reasonable apprehension of bias in the mind of a reasonable person. Given his previous involvement in the facts of this grievance, it would have been advisable for the Respondent to recuse himself as a decision-maker.

Since the Treasury Board Policy on Prevention and Resolution of Harassment in the Workplace and the Administration Manual do not specify how the parties should be redirected to an alternative recourse (such as mediation), the Commissioner found that the respondent fulfilled this obligation by providing this information as part of the correspondence preceding his decision on the harassment complaint, rather than in his written decision.