NC-077 - Harassment

The Appellant is a Corporal with many years of service in the RCMP. For the majority of his career, he pursued part-time education, outside his work hours. In September 2014, his manager at the time authorized him to have a compressed work schedule to allow him to finish his studies. This accommodation allowed the Appellant to complete his work weeks in four days instead of five. Furthermore, overtime hours had been regularly approved for him.

In September 2016, the Appellant had a new manager (the Alleged Harasser). Upon his arrival, the Alleged Harasser told the Appellant that he had to return to a regular work schedule, a “5-2” schedule. The Alleged Harasser also withdrew the possibility of the Appellant working overtime.

On December 3, 2016, the Appellant filed a harassment complaint against the Alleged Harasser that included five allegations. The allegations concerned events that took place from September to November 2016. The Respondent found that the complaint should have been the subject of a grievance and that the harassment complaint resolution process was therefore not appropriate in the circumstances. Consequently, the complaint was dismissed without an investigation being mandated.

The Appellant appealed the Respondent’s decision, alleging in particular that the latter erred by failing to consider all of the allegations contained in the complaint and by not mandating an investigation.

The ERC found that the Respondent’s decision not to mandate an investigation was clearly unreasonable, as the evidence on file was insufficient to render a decision. The ERC also found that the failure to consider all of the allegations contained in the complaint constituted an error affecting the reasonableness of the decision.

The ERC recommended that the appeal be allowed and that the matter be remitted to a new decision-maker for a new decision.

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

[Translation]

While assigned to “X” Division, the Appellant filed a harassment complaint against his supervisor in which he claimed that the Alleged Harasser treated him differently and unfairly by no longer allowing him to work overtime and no longer allowing him to work 10-hour shifts and a rotation of four days on/three days off. In addition, the Alleged Harasser refused to accommodate him in his work hours to enable him to complete his studies. The Appellant reported that he was being treated differently from his colleagues and that this was causing him stress and preventing him from completing his studies.

The Respondent did not mandate an investigation and dismissed the complaint, being of the opinion that the alleged behaviour did not amount to harassment of the Appellant and that it was an exercise of management rights. The Respondent stated that the Appellant should have filed a grievance instead because that was the appropriate process for his type of complaint.

Believing that the Respondent’s decision contravened the applicable principles of procedural fairness, was based on an error of law and was clearly unreasonable, the Appellant appealed the matter.

The case was referred to the ERC. First, the ERC found that the documents submitted by the Appellant in his appeal were inadmissible because some of them were available in the first instance when the harassment complaint was filed, while others were not relevant to the appeal. After reviewing the grounds of appeal, the ERC found that it was erroneous to dismiss the complaint on the ground that it should have been the subject of a grievance because some of its components denounced behaviour that may constitute harassment. In addition, the ERC noted that the Respondent’s decision failed to consider two of the allegations made by the Appellant. The ERC also observed that the Office for the Coordination of Harassment Complaints and the Respondent did not appropriately follow up on the complaint and did not offer the Appellant the opportunity to add documents to his complaint. Lastly, the ERC found that the Respondent should have mandated an investigation as certain allegations by the Appellant needed to be verified. The ERC therefore recommended that the appeal be allowed.

Contrary to the ERC, the Final Adjudicator determined that the documents submitted by the Appellant on appeal were admissible. The Adjudicator also determined that the Respondent had indeed failed to consider two of the allegations made by the Appellant. The Adjudicator found that, as a result, the Respondent’s assessment of the facts in question, in light of the definition of harassment, was incomplete. The Adjudicator found that this failure rendered the Respondent’s decision clearly unreasonable and therefore allowed the appeal.

Considering the Alleged Harasser and the Appellant have retired and considering the time that has elapsed since the complaint was filed, the Adjudicator offered the Appellant an apology on behalf of the RCMP for the fact that his harassment complaint had not been subject to a proper decision-making process.