NC-072 - Harassment

The Appellant applied for two competitions that were posted at a Division. He was unsuccessful in respect to both competitions. The job bulletins, specifically the second one, asked for a characteristic based on race, which the Appellant submitted was contrary to RCMP policies and the Canadian Human Rights Act. A candidate other than the Appellant was appointed by promotion by exception (PBE) in the second competition.

The Appellant grieved his non-selection in the second competition. Although the details of the grievance are not known, the Appellant was retroactively appointed a Corporal (Cpl.) effective August 2017. The Appellant then filed a harassment complaint on the basis of race against the senior member of the Division. The Appellant claimed that the Alleged Harasser knew or should have known due to his position that it was contrary to human rights policies, both internal and external to the RCMP, to advertise in a job bulletin in respect to this particular characteristic. The Appellant claimed that two memorandums clearly set out what could and what could not be done in respect to hiring conditions for the position he applied for. The Respondent found no harassment. He determined that it was unnecessary to interview additional individuals because he had the necessary information to render a Decision. The Respondent acknowledged that the Alleged Harasser did want to staff some of his positions with members holding this particular characteristic due to the fact that the population being policed in that area had that personal characteristic.

The Appellant appealed the decision. He submitted that the mandated limited investigation did not sufficiently address his concerns and, had more of his named members been interviewed, the result would have been to collect evidence to establish that the Alleged Harasser did harass him. He further submitted that there were insufficient reasons given in the Decision and that the Respondent did not consider the information contained in his two rebuttals to the Preliminary Investigation Report.

The ERC found that the Respondent committed no reviewable error. The ERC found that the limited investigation was sufficient and addressed all of the concerns raised by the Appellant. The ERC also found that the Respondent did consider the information in the rebuttals because that information was simply a repeat of information already provided to the harassment investigators. Further, the Respondent's assessment of key documentation was reasonable.

The ERC recommended that the Commissioner dismiss the appeal.

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

The Appellant applied for a corporal position at a Division. He was a promotion by exception candidate. The promotional process concluded without naming a successful candidate, as the Line Officer opted not to promote by exception. The position was then re-advertised and required candidates to meet a certain criteria, under a Special Measures Designation. The Appellant reapplied even though he did not meet this criteria. The only other candidate, who did meet this criteria, received the promotion. The Appellant filed a harassment complaint against the Commanding Officer of “X” Division, the Alleged Harasser, on the grounds of discrimination, claiming that the promotion process was unlawful, as no particular group may be given preference over another.

A limited investigation was mandated to interview the Appellant and the Alleged Harasser. The Respondent found that the limited investigation was sufficient to determine that harassment was not established, since the Alleged Harasser was not involved in the promotion process and the Special Measures Designation took place in good faith. The Appellant filed this appeal.

The ERC found no breaches of procedural fairness, nor errors of law, and determined that the decision is not clearly unreasonable. The ERC recommended the appeal to be dismissed.

In accordance with paragraph 47(1)(a) of the Commissioner’s Standing Orders (Grievances and Appeals), the Adjudicator dismissed the appeal, having found that the Respondent’s decision was not reached in a manner that contravened the principles of procedural fairness, contained no error of law, and is not clearly unreasonable. Further, the Adjudicator found that the Force was legally bound by an agreement, which provides that certain members may be given preference apart from other members. The Adjudicator also found that harassment was not established and the promotional process was lawful.