NC-040 - Harassment

The Appellant and the Alleged Harasser worked together in the Recruiting Section of “X” Division. The parties’ working environment was very friendly and members would play tricks on each other and talk openly about sexuality. On September 3, 2015, the Alleged Harasser met with the Appellant while he was the acting supervisor to discuss some shortcomings he saw in her. She was hurt by the Alleged Harasser’s comments and later refused to work with him. On November 3, 2015, the section supervisor held a meeting between the Appellant and the Alleged Harasser to resolve the conflict, but the situation was not resolved.

On November 4, 2015, the Appellant filed a harassment complaint against the Alleged Harasser comprising six allegations. The allegations related to events that took place between March and November 2015. The Respondent appointed two investigators to investigate these allegations. The investigators met with several witnesses and interviewed the Appellant twice. The parties received the preliminary report in May 2016 and the Appellant was given the opportunity to comment on it. In his decision, the Respondent criticized the work atmosphere in the Recruiting Section, indicating a lack of professionalism in the workplace. He concluded that the Alleged Harasser had indeed made the remarks alleged in the complaint, but he could not conclude that the Alleged Harasser knew or should have known that his words would offend the Appellant in view of her actions and the prevailing working atmosphere in the section.

The Appellant appealed this decision, arguing that the Respondent had not considered all of the evidence, that he had misinterpreted it and that he had considered evidence that had not been disclosed to him before the decision was rendered.

The ERC found that the Respondent’s failure to mention the audio recording provided by the Appellant did not support a finding that the decision was clearly unreasonable. Indeed, the investigators argued that after having received the Appellant’s response to the preliminary report and the audio recording, they were of the opinion that the Appellant had not brought any new elements that would merit a supplemental investigation. The Respondent also indicated that the audio recordings were included in the documents provided to him so that he could make his decision. The ERC also found that the Appellant did not mention any error by the Respondent in his assessment of the evidence, but that she had reiterated the evidence by concluding that it demonstrated that she had been harassed. The ERC found that the investigators had to question the Appellant on issues that had been raised by witnesses and that they were not biased in doing so. Finally, the ERC found that the version of the facts as stated by the Alleged Harasser in his testimony could not be considered new facts.

The ERC recommended that the appeal be dismissed.

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

[Translation]

At the time, the Appellant and the member that is the subject of the harassment complaint (the Alleged Harasser) were assigned to "X" Division's Recruiting Section where there was a [translation] "very particular work environment" marked by comments and jokes that were sometimes unrestrained and [translation] "made in a humorous context." Employees found this environment to be [translation] "pleasant, relaxed, funny, friendly..." stating that [translation] "the complainant took part in jokes, teased others and seemed very comfortable..." In August 2015, while he was the acting supervisor, the Alleged Harasser met with the Appellant to [translation] "discuss some professional shortcomings" she had demonstrated. He then brought these shortcomings to the attention of the supervisor who ordered a Code of Conduct investigation. This action taken by the Alleged Harasser gave rise to the conflict that led to the Appellant filing a harassment complaint against him. Two investigators from the Professional Standards Unit were assigned to the file and they submitted their report to the Respondent who, in his capacity as Commanding Officer, dismissed the complaint in its entirety, [translation] "... disturbed, even offended to note the good-natured tone used by the employees to comment on and illustrate their work environment and the comments they exchanged freely with each other." According to the Respondent:

[Translation]

The Respondent therefore concluded the following:

[Translation]

The Appellant subsequently appealed, finding that the Respondent's decision contravened the relevant principles of procedural fairness and was based on an error of law. In her submissions, she raised the reasonableness of the decision instead. The matter was referred to the External Review Committee (ERC), whose Chairperson [translation] "agreed with the Respondent's comments regarding the work atmosphere in the Appellant's section... it was an unprofessional environment and some members, including the Appellant, behaved in a manner that did not reflect RCMP values." The ERC Chairperson was of the opinion that [translation] "the Appellant was complacent in this work environment and actively participated in jokes of a sexual nature," and therefore, ERC recommended to the Adjudicator that the appeal be dismissed. The Appeal Adjudicator accepted the ERC's recommendation, dismissing the appeal on the basis that the Appellant had not demonstrated that the Respondent's decision was clearly unreasonable.