Other Appeals (incl. harassment, stoppage of pay, etc.)
The Appellant presented a Harassment Complaint against Sgt. KB. While the Harassment Complaint was being investigated, the Appellant submitted a Retaliation Complaint alleging that Sgt. KB had engaged in reprisals against the Appellant because of the Harassment Complaint. The Retaliation Complaint was handled through a process set forth in section 6 (Retaliation) of Administration Manual XII.8 (Investigation and Resolution of Harassment Complaints) (AM XII.8.6). The Respondent reviewed the Retaliation Complaint and decided that there was no evidence of retaliation by Sgt. KB. The Appellant grieved that Decision but an Adjudicator declined to consider the grievance, finding that the appropriate process for seeking redress regarding the Decision was an appeal. The Appellant appealed the Decision.
At issue was whether the ERC possessed the legal authority to review the appeal, which would only be the case if the appeal was referable to the ERC pursuant to either subsection 45.15(1) of the RCMP Act or section 17 of the RCMP Regulations. The ERC found that subsection 45.15(1) had no application as that provision identifies, as referable, appeals by members who are the subject of decisions made by a conduct board or a conduct authority leading to the imposition of specified conduct measures. The Appellant's appeal did not meet those criteria.
With respect to the applicability of section 17 of the RCMP Regulations, the ERC observed that the appeal related to a decision which was linked to the Force's harassment investigation and resolution process. The ERC therefore examined whether subsection 17(a) of the RCMP Regulations, pursuant to which the appeals of two types of harassment-related decisions are referable to the ERC, was applicable.
The first type of appeal referable pursuant to subsection 17(a) is the appeal of a decision made under subsection 6(1) of the CSOs (Harassment) regarding the timeliness of a harassment complaint. No such decision had been made in this case.
The second type of referable appeal identified in subsection 17(a) of the RCMP Regulations is the appeal of the written decision referred to in paragraph 6(2)(b) of the CSOs (Harassment) regarding whether the respondent to a harassment complaint has contravened the Code of Conduct. The ERC observed that such a decision relates to a “complaint” as that term is used in the context of the CSOs (Harassment) and that both the complaint and decision referred to in paragraph 6(2)(b) are part of the Force's harassment complaint investigation and resolution process. By way of contrast, the Respondent's Decision resulted from the review process set out in AM XII.8.6, according to which a retaliation complaint is not to be investigated or resolved as a complaint pursuant to the Force's Policy on the Investigation and Resolution of Harassment Complaints. The Respondent's Decision could therefore not be characterized as a referable decision made pursuant to paragraph 6(2)(b) of the CSO (Harassment).
ERC Recommendation dated July 22, 2016
This appeal is not referable to the ERC. As a result, the ERC does not have the legal authority to further review the appeal or make a recommendation.
Commissioner of the RCMP Decision
The Commissioner agreed that the appeal was not referable to the ERC and sent the appeal to the appropriate Level II decision-maker.
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