NC-075 - Harassment

The Appellant was found guilty of a crime and he received a conditional discharge. The same incident led to conduct proceedings, which resulted in conduct measures being imposed on the Appellant. After he returned to work at his section, the Appellant decided to seek a transfer. He accepted a secondment at another section. The Alleged Harasser later removed the Appellant from his secondment.

The Appellant lodged a harassment complaint against the Alleged Harasser's decision to remove him from his secondment. He alleged that the Alleged Harasser's conduct constituted harassment and discrimination based on his conditional discharge. He also contended that the Alleged Harasser perpetuated a smear campaign against him. The Respondent found no harassment. He determined that the Alleged Harasser's decision was based on the Appellant's past discipline, and on the fact that the Appellant was primarily employed with another section.

The Appellant appealed the decision. He submitted that the Respondent failed to consider whether the Appellant had been subject to harassment and discrimination under the Canadian Human Rights Act (CHRA). He further submitted that, in spite of the justifications provided by the Alleged Harasser, the Appellant could have been employed at a different position at the same section instead of being removed from his secondment.

The ERC concluded that the Respondent's decision was clearly unreasonable. The ERC found that the Respondent failed to properly address the Appellant's substantive arguments regarding harassment within the meaning of the CHRA. The ERC also found that, in light of its recommendations to remit the matter for a further investigation and a new decision, it was unnecessary to consider the Appellant's argument that the Respondent failed to address the Appellant's qualifications for a different position.

The ERC recommended that the Commissioner allow the appeal and remit the matter to a new decision-maker with a direction to assess whether it is possible to obtain, through a supplementary investigation, information relevant to whether the Alleged Harasser's decisions were based in part on the Appellant's criminal record. The ERC further recommended that once such an investigation is completed, the decision-maker be directed to render a new decision which properly considers whether harassment had occurred pursuant to the CHRA.

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

In 2010, the Police Service arrested the Appellant at his place of work for a domestic-related offence. He subsequently pled guilty to an unspecified charge and received a conditional discharge. In 2013, he returned to work at his home unit, but felt ostracized by his colleagues and unsuccessfully sought a transfer. In January 2015, after being off-duty sick for approximately one month, the Appellant began a gradual return to work (GRTW). This arrangement was administered by the GRTW coordinator, but without the knowledge of either division’s staffing unit. In April 2015, the Administration and a Personnel Officer for a Division (the Alleged Harasser) learned of the GRTW arrangement. As a result, the Appellant was informed that he could no longer work in that division due to, in part, his discipline record and an agreement.

Following his removal from a Division, the Appellant filed a Form 3919 – Harassment Complaint naming several respondents. This appeal relates to harassment complaint ACMT [###]. The Appellant detailed incidents that allegedly took place between April 2015 and September 2015. He claimed that with his removal from a Division, he was discriminated against contrary to the Canadian Human Rights Act [CHRA], on the basis of a criminal conviction for which a pardon was granted, equating his conditional discharge to a record suspension.

A full investigation was mandated and eleven witnesses were interviewed, including the Alleged Harasser and the Appellant. The Respondent found that there was sufficient information to determine that the Alleged Harasser’s behaviour did not meet the definition of harassment. However, the Respondent did not conduct a CHRA analysis.

On February 28, 2017, the Appellant received the Respondent’s Record of Decision (RoD) and on March 7, 2017, he presented this appeal on the grounds that the decision was reached in a manner that contravened the applicable principles of procedural fairness, was based on an error of law, and is clearly unreasonable. He asserted that the Respondent failed to consider the discrimination aspect of his complaint or his qualifications for the job for which he was removed.

The RCMP External Review Committee (ERC) agreed with the Appellant that the Respondent was required to conduct a CHRA analysis and in omitting to do so, the Respondent left a gap in the chain of analysis, rendering the decision clearly unreasonable. Consequently, the ERC recommended a supplementary investigation and for a new decision maker to render a new decision. The ERC did not consider whether a CHRA analysis would have changed the outcome.

The adjudicator determined that a prima facie case of discrimination was not established as the Appellant’s removal from a Division was not based on a protected characteristic. The adjudicator concluded the sensitive nature of the jobs within the Division, a member’s prior misconduct, if disclosed, could pose a serious risk to public confidence in the Force. In accordance with paragraph 47(1)(a) of the Commissioner’s Standing Orders (Grievances and Appeals), the adjudicator found that the Respondent’s decision is not clearly unreasonable and dismissed the appeal.