NC-121 - Harassment

The Appellant had been on medical leave for a number of years. While on medical leave, she had filed a number of grievances. She was then medically discharged. Prior to the Appellant’s medical discharge, the Appellant presented a harassment complaint against Inspector [A] (Alleged Harasser), who had been the Non-Commissioned Officer in Charge of the Office for the Coordination of Harassment Complaints (OCHC) at the time of the Appellant’s interactions with the Alleged Harasser.  

The Appellant argued that the Alleged Harasser failed to assist her in a separate harassment complaint and sent confidential information regarding a retaliation complaint to the Administration and Personnel Officer, “X” Division, without her consent.

An investigation was mandated by the Respondent’s predecessor. The Appellant requested that the Respondent’s predecessor recuse herself and remove the investigators assigned to the harassment complaint. The Respondent’s predecessor did not recuse herself or remove the investigators. The Respondent’s predecessor retired and was replaced by the Respondent.

After the investigation was completed, the Respondent found that the harassment complaint was not established. The Respondent found that the Alleged Harasser exercised her authorities and responsibilities in a legitimate, proper and respectful manner, as consistent with the position she occupied in the OCHC.

The Appellant appealed the decision on the basis that it was clearly unreasonable and made further to a procedurally unfair investigation. The Appellant argues that the Respondent should have recused herself as the decision-maker and removed the investigators from investigating the harassment complaint. The Appellant submits that the Decision was reached in a procedurally unfair manner because she was not provided a fair opportunity to be heard. The Appellant argues that the Decision was unreasonable because the Respondent’s reasons were insufficient.    

The ERC found that no reasonable apprehension of bias was raised when the Respondent did not recuse herself. The ERC also found that the Respondent’s omission to remove the investigators was not procedurally unfair. However, the ERC found that the handling of the Appellant’s harassment complaint was procedurally unfair because the Appellant was not interviewed by the investigators nor was she permitted to provide a statement explaining the details of her harassment complaint. 

The ERC recommended that the appeal be allowed and that the matter be remitted to a different decision-maker, from outside of National Headquarters, for a new decision. The ERC also recommended that a direction be issued mandating a re-investigation into the Appellant’s allegations of harassment. The ERC recommended that the new decision-maker, outside of National Headquarters, ensure that the Appellant has the opportunity to be interviewed so that she may be able to make a statement explaining the details of the harassment complaint, through a process that ensures procedural fairness towards the Alleged Harasser.     

The Commissioner's decision as summarized by his office is as follows:

The Appellant filed a harassment complaint against the Alleged Harasser. Following an investigation, the Respondent issued a Record of Decision where she determined that harassment was not established.

The Appellant filed a Statement of Appeal, claiming that the decision is clearly unreasonable, is based on an error of law, and was reached in a manner that contravened the applicable principles of procedural fairness.

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 breach of procedural fairness, because the Appellant was not provided with an opportunity to supplement her complaint by way of an interview during the investigation. The ERC recommended that the Respondent’s decision be set aside and that the matter be remitted to a new decision maker.

Having considered the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator disagreed with the findings of the ERC. The adjudicator dismissed the appeal concluding that, given the specific circumstances of the complaint and the investigation, the Respondent’s decision not to have the Appellant interviewed did not amount to a breach of procedural fairness. Furthermore, the adjudicator found that the decision is not based on an error of law, nor is it clearly unreasonable. The appeal was dismissed.