Investigation determined incidents didn’t objectively prove harassment
A federal government employee who disputed that her harassment complaint was properly investigated has been denied an appeal by the Federal Court.
Katherine Green was the director of research and policy with the Specific Claims Branch of the federal government’s Department of Aboriginal Affairs and Northern Development Canada (AANDC) — which has now been renamed the Department of Indigenous and Northern Affairs. In 2012 and 2013, Green alleged that a senior policy advisor with whom she worked — and who was a subordinate — caused multiple incidents that she considered harassment.
Green said that the colleague: told a consultant that 16 employees left the workplace because of Green and “everyone is out to get you;” inappropriately questioned her assistant about a cancelled trip to British Columbia and emailed superiors about improper planning of the trip; stated he would have other employees’ “guts for garters;” spread inappropriate rumours about her; and sent an anonymous email with false and inflammatory remarks about her to a superior, after which he told Green she had “serious enemies” who “wanted to eat her liver.”
On March 28, 2013, Green filed a harassment grievance against the colleague and three other employees. Five months later, AANDC retained Quintet Consulting, an independent investigator.
Quintet’s investigation involved interviewing Green and her colleague, reviewing documents provided by Green, and reviewing the preliminary report by Green and the colleague with the opportunity for them to provide comments.
Quintet’s final report on June 9, 2015, found that the incidents did happen and the colleague “used exaggerated and inappropriate language,” but they didn’t meet the definition of harassment under the Treasury Board Secretariat Policy on Harassment Prevention and Resolution — “improper conduct by an individual, that is directed at and offensive to another individual in the workplace …at that the individual knew or ought reasonably to have known would cause offence or harm” — as they weren’t personal attacks but related to his opinion about her performance as his supervisor. Quintet also found the “liver” comment was made in reference to the anonymous email, which the colleague may not have written. Other comments — such as the “guts for garters” comment — were directed towards others, not Green, the report said.
The report noted that to establish harassment, a reasonable person viewing the evidence would have to conclude there was harassment .
The senior assistant deputy minister, reviewed the report and noted that the incidents “caused …distress” for Green, but agreed they didn’t meet the definition of harassment. AANDC dismissed Green’s grievance on Sept. 11, 2015.
Green appealed to the Federal Court, claiming the dismissal of her grievance was unreasonable. She argued Quintet didn’t properly apply the policy's definition of harassment and didn’t give sufficient weight to one of the more serious allegations — the “liver” comment. Green also said her right to procedural fairness was violated because the investigation took 27 months to complete — the harassment investigation process was supposed to take 12 months maximum, barring extenuating circumstances.
The court noted that it has been established in previous arbitration decisions that “harassment is generally a course of conduct viewed objectively rather than a single act.” Therefore, the investigator didn’t err when determining that the definition of harassment included an objective element. In addition, this approach made more sense in the context of the work environment, as Green was making complaints about the conduct of a subordinate. As a result, the report’s approach to harassment and its definition was reasonable, said the court.
The court also found that the “eat her liver” comment was made in the context of the colleague telling Green about the anonymous email and there was no finding that the colleague had actually written the email. As this incident was covered in the Quintet report, it was reasonably considered and not an error, the court said.
The court determined that the investigation report was “exhaustive in its factual findings and in its consideration of the evidence” with multiple interviews and statements. In addition, both Green and her colleague were given the opportunity to comment on the preliminary report. The report’s findings were reasonable and it was reasonable for AANDC to base its decision to dismiss Green’s grievance on it, said the court.
As for the 27 months it took for the final decision, the court found “this was a complex investigation, involving multiple parties, in a difficult work environment.” For example, it took five months for AANDC to find an appropriately qualified investigator. In addition, both Green and her colleague experienced health issues during the investigation, which delayed the process. As a result, the process met the “extenuating circumstances” reason in the policy for allowing the process to exceed 12 months, the court said in dismissing Green’s appeal. See Green v. Canada (Aboriginal Affairs and Northern Development), 2017 CarswellNat 7095 (F.C.).
