NC-061 - Harassment

The Appellant lodged a harassment complaint dated April 21, 2016, in which he asserted that his supervisor (Alleged Harasser) harassed him. The Appellant specified that the Alleged Harasser compelled him to retire from the RCMP through a number of inappropriate and potentially discriminatory actions which she attempted to disguise as legitimate performance management initiatives.

This matter was the subject of a joint harassment and Code of Conduct investigation wherein a number of witnesses, including the parties, gave evidence. On November 8, 2016, the Respondent concluded that none of the conduct that was revealed by the investigation amounted to harassment. At the time of appealing this decision, the Appellant had retired.

The ERC found that the Appellant, although he had retired when he filed his appeal, retained his standing to appeal the decision. The ERC found that, based on jurisprudence, a former employee still has standing to appeal a decision if the issue relates to his employment with the Force. Notwithstanding, the ERC found that the Respondent did not err in his decision. There was evidence that the Appellant had performance issues which the Alleged Harasser tried to address with various means. The investigation did not provide any evidence that the Alleged Harasser treated the Appellant disrespectfully.

The ERC recommended that the appeal be dismissed.

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

The Appellant, who was a regular member, lodged a harassment complaint against his supervisor, alleging he was intimidated into retirement to avoid the Performance Enhancement Program (PEP). The Alleged Harasser had commenced a performance evaluation process to assess the Appellant, who she found had not been carrying the same task load as his coworkers and produced a limited quantity of work. The Appellant was unsuccessful in the process, so the Alleged Harasser informed him she was going to initiate the PEP. The Appellant chose to retire instead. The Appellant regretted his choice and was unsuccessful at revoking his discharge request. Within the complaint of harassment, he alleged that he was micromanaged, the process breached protocol, and the Alleged Harasser only wished to force him to retire to free his position.

An investigation was mandated. The investigation report pointed out that policy was not followed and the Alleged Harasser spent little time observing the Appellant prior to determining he should enter the PEP. The Respondent found harassment had not been established, determining the Alleged Harasser had spent almost a year observing the Appellant and dealt with him in a respectful and polite manner. The Appellant appealed, claiming procedural unfairness in allowing hearsay evidence. He also claimed the Respondent did not consider all the evidence, rendering the decision clearly unreasonable. No error of law was pled.

The ERC found hearsay evidence is allowable, the decision was procedurally fair, and that there was no manifest and determinative error that rendered the decision clearly unreasonable. The ERC recommended the appeal be denied. Although it was not raised by either party, the ERC conducted a standing analysis.

The Adjudicator determined the type of harassment alleged by the Appellant was an abuse of authority and age discrimination. The Adjudicator found that although there were inconsistencies in the performance evaluation process and the Alleged Harasser did not observe the Appellant for a reasonable period, the evidence did not demonstrate that those acts were carried out to harass him or endanger his employment to free his position. The Adjudicator further found the Appellant may have been influenced to retire instead of engaging in PEP by another party, who referenced his age. However, these remarks were not made by the Alleged Harasser. The Adjudicator determined that although the Respondent made some errors, these were not manifest and determinative to the outcome. The Adjudicator further found that the Respondent's decision was not reached in a manner that contravened the principles of procedural fairness nor was it clearly unreasonable. The Adjudicator noted that even if a reviewable error had been proven, the Appellant's resignation is irrevocable under section 22 of the RCMP Regulations. The appeal was dismissed.