Case # 2010-014

Harassment, Natural Justice, Procedural fairness, Respect of procedures/policies, Situational Assessment

Case Summary

F&R Date: 2010-07-07

The grievor was the subject of a harassment complaint submitted by one of his subordinates. The Responsible Officer (RO) took almost a year to complete his situational assessment (SA) before determining that the allegations met the definition of harassment and would be investigated. Due to a number of factors, the investigation was not completed until some twenty-one months after the submission of the original complaint. The investigation concluded that there were five founded allegations of harassment. The RO agreed with the investigation and ultimately placed the grievor on recorded warning (RW) and caused his annual personnel evaluation report (PER) to be lowered.

The grievor alleged that he had been denied due process, fair and timely resolution, procedural fairness and natural justice in the complaint against him. He argued there were numerous shortcomings in the investigation itself and challenged many of its findings. He contended that the investigators' conclusions were not consistent with rational interpretation of allowable evidence and should be withdrawn. He concluded the matter should be deemed closed as the process had been compromised beyond any point of fair determination.

The Board found that although it took an unreasonable amount of time for the harassment complaint to be resolved, the grievor had been afforded procedural fairness throughout in that he had been made aware of the case against him and had been given opportunities to defend himself.

The Board found that there were several problems with the investigation report. First, there were no transcripts or signed witness statements as the investigators had chosen to summarize in their own words what the witnesses had said. Second, there was a good deal of hearsay, opinion and character evidence throughout the report. The report did not stick to the facts of the incidents under investigation but appeared to be more of a review of the grievor's leadership style. Third, the report was set out in such a way that it was impossible to determine what specific evidence was relied upon to arrive at each of the conclusions. The Board also noted that an independant review of the investigation report also found a series of shortcomings with the report.

Based on the actual first-hand accounts of the incidents investigated, the Board concluded that there was only one founded incident of harassment. This being the case, the Board found that an RW was not justified but that the grievor should have been placed on initial counselling (IC) instead.

The Board recommended that the grievance be partially upheld; that the RW be replaced with an IC; and that the grievor's PER be rewritten in light of the findings noted above.

CDS Decision Summary

CDS Decision Date: 2010-10-28

The CDS agreed with the Board's findings but one finding regarding the evidence used to conclude that three allegations met the definition of harassment. Furthermore, the CDS was of the view that upon the analysis of the poor quality of the provided documentation, it is impossible to conclude, even on the balance of probability, that the allegations are founded. Since there is no evidence to conclude that the grievor harassed the complainant, the CDS partially granted the grievance by ordering the removal and destruction of his RW, and that his 2008-2009 annual PER be removed from his personal file. The CDS also ordered that a supplemental merit board be conducted to assess his PERs from the reporting periods.