NC-093 - Harassment

The Appellant presented a harassment complaint (Complaint) against a former colleague and supervisor, the Alleged Harasser. The Appellant and Alleged Harasser worked together in a division for a number of years before she went on leave. Upon the Appellant’s return and before her transfer, she was placed under the supervision of the Alleged Harasser for a short period of time. Several years later, the Appellant attempted to return to the divsion. At that time, the Appellant became aware of a Final Report which discussed her performance for the short time she was under the supervision of the Alleged Harasser. The Appellant then filed the Complaint, challenging the accuracy and use of the Final Report.

The Complaint alleged that the Final Report contained falsehoods regarding the time she spent under the supervision of the Alleged Harasser. As well, the Appellant felt that the unfavourable representation of her performance was being used to prevent her from achieving her career aspirations.

The Respondent rendered a Decision finding that the Complaint did not include enough details to justify an investigation. The Respondent found that the allegation was not established as the alleged behaviours speculated on the conduct of the Alleged Harasser and the impact it may have had on the Appellant.

The Appellant appealed the Respondent’s Decision.

During the Appeal, the Appellant submitted a number of documents, which explained the assessment of the Appellant’s performance and use of the Final Report. The ERC found that these documents should be included as fresh evidence in the Appeal.

The ERC also requested a copy of the briefing note informing the Respondent of the allegation. In response, the Appellant submitted arguments and evidence. The submissions and evidence related to the content of the briefing note were accepted. The remaining arguments and evidence were not considered.

The ERC found that the Decision was both procedurally unfair and clearly unreasonable. More specifically, the ERC found that the principles of fairness had not been adhered to as the Appellant was not provided an opportunity to explain the substance of her Complaint fully and to provide relevant documents, central to the Complaint.

The ERC also found that the decision not to mandate an investigation was clearly unreasonable. The Respondent identified multiple areas where the information before him lacked sufficient detail. Yet, the Respondent chose to render a decision rather than seeking the necessary information. 

The ERC recommended that the Commissioner allow the appeal and remit the matter to a new decision-maker so that he or she can mandate an investigation and re-determine the Complaint in line with the principles of procedural fairness. 

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

The Appellant appeals the Respondent’s decision finding that the allegation of harassment, made by the Appellant against the Alleged Harasser, was not established. The Appellant accused the Alleged Harasser of spreading false information about her by sharing an unjustified negative performance review that she had never previously been made aware of.

The Appellant filed a harassment claim against the Alleged Harasser. She claimed that the performance review was deliberately misleading and it demonstrated that the Alleged Harasser was actively harming her reputation and promotional opportunities. The Respondent in this matter concluded that an investigation into the circumstances was not necessary and that the offending behaviour did not constitute harassment against the Appellant. The Respondent issued a Record of Decision where he determined that harassment was not established.

The Appellant filed a Statement of Appeal, claiming that the decision was reached in a manner tha contravened the principles of procedural fairness, is based on an error of law, and is clearly unreasonable. She argued that an investigation into her allegation was necessary because the complaint had been split into five innocuous statements that made no sense without considering them in totality, or examining the offending performance review. The Appellant also provided new evidence to support her appeal, as she had never been afforded an opportunity to submit this evidence previously.

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 was reached in a manner that was not procedurally fair since the Respondent had not provided the Appellant the opportunity to submit evidence. Furthermore, the ERC found that the decision was also clearly unreasonable because the Respondent lacked evidence or a rational basis for his conclusions and was incorrect to suggest that an investigation was unnecessary in the
circumstances. The ERC recommended an investigation be mandated and that the matter be remitted to a new decision maker, outside of the Division, for a new consideration.

Having considered the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator concurred with the findings of the ERC and allowed the appeal. The Adjudicator mandated a new investigation and remitted the matter to a new decision maker outside of the Division.