G-756 - Harassment

The Grievor contested the Respondent's decision that his harassment complaint was not established. The Grievor had alleged that a Sergeant (Sgt.) in his detachment had harassed him by failing to assist in resolving a conflict between the Grievor and his supervisor; and, by filing a harassment complaint against him.

The Grievor challenged the Respondent's decision on the basis that it was not clear that a subordinate could harass a superior, that the Sgt.'s harassment complaint against him was a reprisal as defined by the Public Servants Disclosure Protection Act (PSDPA), and that there was a reasonable apprehension of bias. The LeveI I Adjudicator rejected the Grievor's argument that the RCMP hierarchy negated the possibility of harassment by a person of lower rank. He found that the PSDPA had its own complaint mechanism, and that this portion of the grievance exceeded the scope of the RCMP grievance process. Lastly, he found that the Grievor's submissions did not include any details to support his argument of bias.

At Level II, the Grievor argued that the Level I Adjudicator breached the principles of procedural fairness, that the Respondent and the Level I Adjudicator had not considered the totality of the evidence, that the Level I decision was not consistent with RCMP and Treasury Board policy, and that the harassment complaint against him by the Sgt. was both a reprisal and an abuse of authority.

The ERC found that, despite the Grievor's bald assertion, there was no breach of procedural fairness. The Grievor was heard through a Level I submission, and there was no argument or evidence in the record sufficient to rebut the presumption of the Level I Adjudicator's impartiality.

The ERC found that the Grievor did not meet his burden of persuasion because he provided no explanation and no examples as to what evidence the Respondent or the Level I Adjudicator did not adequately consider. A grievor is required to satisfy the initial burden of persuasion, on a balance of probabilities standard.

The ERC found that, since the Grievor did not provide any explanation or specify any provisions of the harassment policies that the Respondent failed to respect, he failed to demonstrate how the Respondent's decision was not in line with these policies. Instead, he made a bald assertion in reference to the Level I decision.

The ERC further found that the Respondent did not err in his assessment of the Grievor's argument regarding reprisals. The Respondent found that the Sgt.'s act of filing a harassment claim against the Grievor did not meet the criteria for harassment because she had filed a valid harassment complaint.

The ERC found that, as per the Commissioner Standing Orders (Grievances) at section 12(3) and Administrative Manual II.38.L.3 (Grievances), the Grievor was barred from raising the abuse of authority argument because he had not raised it before the Level I Adjudicator although it was known to him at that time.

Lastly, although the Grievor did not argue that the Respondent had failed to apply or misapplied the reasonable person test for harassment, the ERC found that it was authorized to address an error of law that was evident on the face of the record by virtue of paragraph 34(3)(a) of the RCMP Act. This paragraph provides that the ERC may provide such findings and recommendations to the Commissioner as it sees fit. Although the Respondent correctly cited the reasonable person test, the Respondent improperly considered whether the Sgt. intended to cause offence or harm. The ERC found that this was a misapplication of the reasonable person test because the Alleged Harasser's intent is not a component of the test.

The ERC recommended that the grievance be allowed and that the Commissioner renders a new decision. The ERC noted that while there had been a significant passage of time, the Grievor was entitled to a decision in which the correct test was applied.

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

The Grievor challenged a decision rejecting his complaint of harassment. At Level I, the Adjudicator denied the grievance, finding that the Grievor had not established his case. The Grievor sought a review at Level II. The ERC recommended that the grievance be allowed and that the Commissioner issue a new decision, on the basis that the Respondent had made an error of law with respect to the test for harassment. The Commissioner disagreed and dismissed the grievance.