NC-087 - Harassment

The Appellant was the Non-Commissioned Officer in charge (NCO i/c) of a Unit. The Alleged Harasser was the Appellant's supervisor. In March/April 2018, a management review was conducted of the Appellant's unit. During the review, the interviewers learned that there had been an incident of a sexual nature in the unit, that the Appellant had known about it, but had failed to report it. Shortly thereafter, the Alleged Harasser held a meeting to discuss the Review Team's recommendations, some of which removed responsibilities from the Appellant. The Alleged Harasser further commenced a Code of Conduct process against the Appellant for not reporting the incident. The Appellant filed a harassment complaint against the Alleged Harasser claiming that he was humiliated during the review meeting and he was belittled by how he was treated in respect to conduct matter.

The Office of the Coordination of Harassment Complaints (OCHC) recommended a limited investigation if required. However, the Respondent decided not to conduct a Code of Conduct investigation into the harassment complaint. He found that the Alleged Harasser was performing her managerial responsibilities and the process required in respect to the ongoing conduct matter. The Respondent further found that the Appellant could have filed a grievance in respect to his transfer from the Unit. The Respondent found that the Appellant's harassment was not established.

The ERC first found that the Respondent had breached the Appellant's right to procedural fairness by not disclosing two documents that were before him when he rendered his decision. The ERC further found that the Respondent's decision was clearly unreasonable given that there was insufficient information in the record to determine whether the Appellant was harassed. Lastly, the ERC agreed with the Respondent that the procedural issues related to the conduct process are to be dealt with in the appeal of the conduct decision filed by the Appellant.

The ERC recommended that the appeal be allowed.

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

The Appellant challenged the Respondent's finding that his harassment complaint was not established.

According to the Appellant, the Alleged Harasser, who was his supervisor, exploited both a Code of Conduct investigation and an accusation of harassment against him to justify a transfer to another unit. The Appellant alleged that a series of events, including forcing the Appellant to sit through a humiliating meeting where he was stripped of his responsibilities; starting a Code of Conduct investigation for ulterior purposes; and, discriminating against him based on sex, constituted acts of harassment.

Following an initial review of the Appellant's harassment complaint, the Respondent determined that an investigation was not necessary and eventually issued a Record of Decision after obtaining certain relevant documentation which led him to conclude that the impugned actions and behaviours did not constitute harassment.

The Appellant filed a Statement of Appeal, claiming the decision contravened the applicable principles of procedural fairness; was based on an error of law; and, is clearly unreasonable. He argued that there were a series procedural fairness breaches due to the collection of evidence and the manner in which the Code of Conduct process was handled. He also argued that the Respondent's decision was clearly unreasonable because he did not acknowledge all of the Appellant's arguments and had insufficient information to justify his finding that the Alleged Harasser's behaviour did not meet the definition of harassment.

The appeal was referred to the RCMP External Review Committee (ERC) and in a Report containing findings and recommendations, the ERC recommended that the appeal be allowed on the grounds that the decision breached procedural fairness for incorrectly considering evidence and is clearly unreasonable because the Respondent did not have sufficient evidence to substantiate his findings and failed to consider all of the Appellant's grounds of appeal. The ERC recommended the matter be remitted to a new decision maker for fresh consideration.

Having examined the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator concurred with the majority of the ERC's findings and allowed the appeal. However, the Adjudicator found there was no procedural breach associated with the gathering of certain evidence because the Respondent had a duty to obtain and consider the Code of Conduct and harassment matters which were raised by the Appellant in his complaint. The Adjudicator determined that, due to the passage of nearly four years and the retirement of the Appellant and other witnesses, the redress sought was no longer viable, and issued an apology without further direction