Grievance Case Summary - G-690

In October 2005, a subordinate filed a harassment complaint against the Grievor. Several allegations were made, including one allegation of sexual harassment and several allegations of alleged harassment in the workplace. The Grievor was informed of the complaint and provided a written statement, but was not apprised of the entirety of the allegations. The Respondent then mandated a harassment investigation. The Grievor was, at this time, still not apprised of the allegations. In October 2006, he provided an oral statement with respect to the harassment investigation. The Grievor did not receive a preliminary investigation report nor was he offered an opportunity to comment on this report or other witnesses' statements.

In February 2007, the Human Resources Officer (HRO) provided the Respondent with the materials from the harassment investigation. On February 18, 2007, the Respondent found that the Grievor's actions constituted harassment. The Respondent, who was also the Appropriate Officer, ordered a Code of Conduct investigation and initiated a disciplinary hearing into the Grievor's actions.

Within the disciplinary process, the Grievor received disclosure of the harassment investigation report and noticed new allegations, inconsistencies between the Respondent's rationale and the evidence gathered, and that the Respondent's finding of harassment was unsupported by the evidence.

The Grievor grieved the Respondent's decision. He stated that the decision was reached in a procedurally unfair manner on the basis that he had not been apprised of all the allegations and was not afforded the opportunity to be heard. He further alleged that the Respondent had no authority to initiate a disciplinary hearing since the one year time limit had expired (the Adjudication Board did in fact dismiss the Code of Conduct contravention as the time limit had in fact expired). The Grievor also argued that the decision was unsupported by the evidence.

The Respondent, during the Early Resolution (ER) phase, ordered a third-party review of the initial investigation and decision. He later admitted during ER and the Disciplinary Hearing that the harassment investigation was flawed, the Grievor's procedural rights had been breached, the investigation report was misleading, that he did not compare the draft decision to the evidence, and that the evidence did not support his conclusions. The third-party review also revealed that the workplace harassment allegations were unfounded.

Taking into consideration these admissions, the Level I Adjudicator found that the Grievor's right to procedural fairness was breached at the investigation stage and that the evidence did not support the Respondent's decision. Given the passage of time, the Level I Adjudicator directed the Respondent to apologize to the Grievor. However, the Level I Adjudicator denied the grievance on the basis that the Grievor was not prejudiced.

The ERC found that, as the Grievor was not given the opportunity to be heard on all allegations of harassment, his right to procedural fairness was breached. Although in exceptional cases, the decision will remain valid notwithstanding the breach of procedural fairness if the merits of the application or the motion would otherwise be "hopeless", the ERC found that this was not one of those rare cases. It found that the decision was ultra vires. The ERC lastly found that the Grievor was prejudiced as one's right to a fair hearing is an unqualified, independent right and a breach of such a right will cause prejudice.

The ERC recommended that the Commissioner allow the grievance. However, given the passage of time, it would be impracticable that a new investigation be ordered. The ERC recommended that the Commissioner apologize to the Grievor.

The Commissioner's decision, as summarized by her office, is as follows:

The Grievor challenged the Respondent's decision finding that he committed workplace and sexual harassment. The Grievor claimed that the process was procedurally unfair, the limitation period for a conduct hearing had expired, and he missed promotional opportunities, as a result. The Grievor sought as redress: an apology, a new investigation, and promotion to the posting of his choice. The Adjudication Board presiding over the disciplinary proceedings agreed that the limitation period had expired and ended the disciplinary proceedings. The Respondent conceded that the investigation had been flawed, the decision made in error and had directed a review at Early Resolution which was never completed, but contended the Grievance should be denied, as the issue was now moot due to the decision of the Adjudication Board. The Grievor argued that the Respondent's decision remained in effect and continued to prejudice him. Several collateral issues were referred for adjudication. The Level I Adjudicator on the merits found the Grievance was not moot, the investigation was flawed, and it would be appropriate for the Respondent to apologize, given a new investigation would be unreasonable due to the passage of time. However, the Grievance was denied, as the Level I Adjudicator found the Grievor failed to demonstrate prejudice. The matter was referred to the ERC. The Chairperson recommended the grievance be allowed and found that the procedural unfairness was sufficient to demonstrate prejudice. The ERC also recommended the Commissioner issue an apology to the Grievor with no other redress. The Commissioner agreed with the ERC, apologized to the Grievor for the breach of his procedural rights, and rescinded the Respondent's decision.