G-758 - Harassment

The Grievor contested the Respondent's decision that his harassment complaint was not established. The Grievor had alleged that his supervisor had harassed him by humiliating him, by being untruthful regarding his work performance, and by filing a harassment complaint against him.

At Level I, the Grievor argued that the Alleged Harasser's conduct constituted harassment, was an abuse of authority; and was a reprisal under the Public Servants Disclosure Protection Act (PSDPA). He argued that there was an apprehension of bias due to the Alleged Harasser's correspondence with the Respondent's representative. The Level I Adjudicator dismissed the grievance finding that the Grievor had not met his onus to establish that the Respondent's decision was inconsistent with applicable policies and legislation. The Adjudicator rejected the Grievor's argument regarding bias because when the Respondent named his representative for the grievance, he had already discharged his duty and was functus officio with regard to the harassment decision.

At Level II, the Grievor argued that the Level I Adjudicator breached the principles of procedural fairness, and that the Level I decision was not consistent with RCMP and Treasury Board policy. He argued that the Level I Adjudicator lacked a clear understanding of the facts. He argued there was a breach of procedural fairness due to the delay in receiving the Level I decision, and he reiterated his Level I arguments regarding bias, abuse of authority, and reprisal.

The ERC found that the Grievor failed to demonstrate how the Respondent's decision was not in line with harassment policies. The Respondent reviewed the evidence and applied the correct test, and concluded that the test for harassment was not met.

The ERC found that there was no breach of procedural fairness. The Grievor was heard through a Level I submission, and the presumption of impartiality of the Level I Adjudicator was not rebutted. The Grievor had not requested that the decisions for this grievance and another be issued concurrently, and there was no requirement to do so. The Grievor did not specify any argument he was prevented from making, or anything he would have argued differently had he received the two Level I decisions concurrently, and the Grievor was heard de novo and concurrently at Level II.

The ERC concurred with the Respondent's finding that the test for harassment was not met because the Alleged Harasser's actions were not improper. The ERC stated that abuse of authority is a form of harassment, and that improper conduct is required to establish harassment. The Respondent found that there was no intent to injure. The ERC stated that the Respondent did not err his analysis and noted that abuse of authority cannot occur where there is no intent.

Regarding reprisal, the ERC found that the Respondent did not err in finding that the Alleged Harasser's act of filing a valid harassment claim did not meet the criteria for harassment. He was exercising his rights under RCMP policy, pursuant to which a supervisor is as equally entitled to file a harassment complaint as is a subordinate. The ERC agreed with the Level I Adjudicator's review of the Grievor's argument regarding reprisal under the PSDPA, which exceeded the scope of the RCMP grievance process.

Regarding the Grievor's allegation of an apprehension of bias against the Respondent, the ERC agreed with the Level I Adjudicator's review of the issue.

The ERC recommended that the grievance be denied.

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

The Grievor challenged a decision by the Respondent, finding that an RCMP member, Corporal X, did not harass him. At Level I, the Adjudicator denied the grievance, finding that the Grievor had failed to establish that the Respondent’s decision was inconsistent with applicable policy or legislation. The Grievor sought a review at Level II. The ERC recommended that the grievance be denied, on the basis that the Respondent did not err by concluding that Corporal X’s conduct did not meet the test for harassment. The Commissioner agreed, and dismissed the grievance.