Harassment investigation reasonable: Court

Government worker’s concerns didn’t objectively meet definition of harassment
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 02/01/2018

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 at the specific claims branch of the federal government’s Department of Aboriginal Affairs and Northern Development Canada (AANDC) — now the Department of Indigenous and Northern Affairs.

In 2012 and 2013, Green alleged a senior policy advisor at AANDC — whose was a subordinate — caused multiple incidents she considered harassment.

The incidents included the colleague: telling a consultant that 16 employees left the workplace because of Green and telling her “Everyone is out to get you;” stating he would have other employees’ “guts for garters;” spreading inappropriate rumours about her; and sending an anonymous email with false, 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 hired Quintet Consulting to investigate Green’s grievance.

Quintet’s investigation involved an interview with Green, two interviews with her colleague, a review of documents provided by Green, and a review of the preliminary report by Green and the colleague, with opportunity for them to provide comments. Quintet provided AANDC with its final report on June 9, 2015.

Quintet’s final report found that the incidents Green reported had happened, and the colleague “used exaggerated and inappropriate language,” but these 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… that the individual knew or ought reasonably to have known would cause offence or harm” and could be a series of incidents or one severe incident — as they weren’t personal attacks against Green but related to his opinion about her performance as his supervisor.

Quintet also found the “liver” comment was made in reference to the email, which the colleague may not have written, and other comments — such as the “guts for garters” comment — were directed towards others, not Green.

The report noted that to establish harassment, a reasonable person viewing the evidence would have to conclude there was harassment — not just the fact the complainant felt harassed.

In reviewing the report, the senior assistant deputy minister noted the incidents “caused… distress” for Green, but didn’t meet the definition of harassment. AANDC dismissed Green’s grievance on Sept. 11, 2015.

Green appealed to the Federal Court, claiming Quintet’s findings and the dismissal of her grievance were unreasonable. She argued Quintet didn’t properly apply the definition of harassment in the policy, and didn’t give sufficient weight to the seriousness of the “liver” comment.

The court noted that previous arbitration had established that decisions that “harassment is generally a course of conduct viewed objectively rather than a single act.” Therefore, the investigator didn’t err when determining 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.

It also found that the liver comment was made in the context of the colleague telling Green about the anonymous email — specifically noted in the investigation report — 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, said the court.

The investigation report was “exhaustive in its factual findings and in its consideration of the evidence,” said the court, given multiple interviews and statements were obtained. In addition, both Green and her colleague had an opportunity to comment on the preliminary report.

And it was reasonable for AANDC to base its decision on dismissing Green’s grievance on the report, said the court.

Green also said her right to procedural fairness was violated because the investigation took 27 months to be completed — the harassment investigation process was prescribed to take 12 months maximum, barring extenuating circumstances.

But “this was a complex investigation, involving multiple parties, in a difficult work environment,” which required a careful investigation, found the court. For example, it took five months to find an appropriate 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 for allowing the process to exceed 12 months, said the court in dismissing Green’s appeal in its entirety.

For more information see:

• Green v. Canada (Aboriginal Affairs and Northern Development), 2017 CarswellNat 7095 (F.C.).

Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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