NC-056 - Harassment

The Appellant presented a harassment complaint (Complaint) against his supervisor, the Alleged Harasser. The Complaint contained numerous allegations, including incidents where the Alleged Harasser had made comments which the Appellant perceived as offensive. Other allegations involved incidents where the Appellant believed the Alleged Harasser had failed to properly support him in a major investigation. This lack of support was, according to the Appellant, exemplified by the Alleged Harasser's denial of human resources and overtime to assist in the investigation. The Complaint further alleged that the Alleged Harasser had failed to support the Appellant with respect to certain work opportunities. The Respondent directed that a limited investigation into the Complaint take place, and only the Appellant and Alleged Harasser were interviewed. An investigation report was completed.

The Respondent rendered a Decision finding that the Complaint was not established. In his view, the Alleged Harasser's actions did not amount to harassment. The Respondent found that the Alleged Harasser had not intended to offend the Appellant in several of the incidents where he had made comments which the Appellant objected to. The Respondent also considered that many of the other events raised by the Appellant reflected disagreements between he and the Alleged Harasser regarding the manner in which the Alleged Harasser had legitimately exercised his supervisory responsibilities. The Respondent also provided reasons which appeared to be a basis for his finding that the allegations, when assessed collectively, revealed no pattern of harassment.

The Appellant appealed the Respondent's Decision.

The ERC found that the Decision was clearly unreasonable. The definition of harassment requires a consideration of whether the Alleged Harasser knew or ought to have known that his behaviour would cause harm. The Respondent was required to apply a test which reviews the Alleged Harasser's conduct from the perspective of a reasonable person who places himself/herself in the Appellant's situation. However, the Respondent's findings regarding certain incidents, which involved allegedly offensive comments towards the Appellant, indicated that he had focused his assessment on the Alleged Harasser's intention, rather than the perspective of a reasonable person. Additionally, the information obtained from the Appellant and Alleged Harasser strongly suggested that other witnesses might have relevant evidence to provide in relation to some of those incidents, yet there was no explanation as to why they had not been interviewed. Further, the Respondent had not fully addressed the cumulative effect or pattern of all the incidents raised in the Complaint. The Respondent's reasons appeared to provide some explanation of why the Respondent did not view certain incidents as cumulatively amounting to harassment. But they did not indicate that he had turned his mind to the combined and repetitive effect of comments made by the Alleged Harasser towards the Appellant. The Respondent's cumulative assessment of those incidents, as well as others, would have benefitted from a more complete investigation.

The ERC recommended that the Final Adjudicator allow the appeal and remit the matter to another decision-maker. The ERC further recommended that the decision-maker be directed to: (i) assess whether it is possible to conduct a further investigation, and; (ii) render a new decision which considers any additional information obtained.

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

The Appellant appealed the Respondent's finding that his complaint of harassment was not established. He argued that the Respondent committed an error of law and that the decision is clearly unreasonable.

Pursuant to paragraph 17(a) of the RCMP Regulations, 2014, the matter was referred to the ERC. The ERC recommended the appeal be allowed on the ground that the decision was clearly unreasonable. The ERC found the Respondent did not correctly apply the definition of harassment and the reasonable person test. Further, that the Respondent failed to properly consider the incidents as a whole when determining if there was a pattern of harassment. The ERC held the limited investigation may have restricted the Respondent's ability to properly carry out these assessments.

The Adjudicator accepted ERC's recommendation and allowed the Appeal pursuant to paragraph 47(1)(b) of the Commissioner's Standing Orders (Grievances and Appeals), remitting the matter, with directions for review by a new decision maker. The Adjudicator did not accept that further investigation, at this juncture, would necessarily assist the decision-maker in their review.