Canadian HR Reporter

CANADIAN HR REPORTER FEBRUARY 2018 EMPLOYMENT LAW 5 Harassment investigation reasonable: Court Government worker's concerns didn't objectively meet definition of harassment A federal government employee who dis- puted that her harassment complaint was properly investigated has been denied an appeal by the Federal Court. Katherine Green was the direc- tor of research and policy at the specific claims branch of the fed- eral government's Department of Aboriginal Affairs and Northern Development Canada (AANDC) — now the Department of Indig- enous and Northern Affairs. In 2012 and 2013, Green al- leged a senior policy advisor at AANDC — whose was a subordi- nate — caused multiple incidents she considered harassment. e incidents included the col- league: telling a consultant that 16 employees left the workplace because of Green and telling her "Everyone is out to get you;" stat- ing he would have other employ- ees' "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 employ- ees. Five months later, AANDC hired Quintet Consulting to inves- tigate Green's grievance. Quintet's investigation involved an interview with Green, two in- terviews 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 inappro- priate language," but these didn't meet the definition of harass- ment under the Treasury Board Secretariat Policy on Harass- ment Prevention and Resolu- tion — "improper conduct by an individual, that is directed at and offensive to another individual in the workplace… that the individ- ual 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 di- rected towards others, not Green. e report noted that to es- tablish 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… dis- tress" for Green, but didn't meet the definition of harassment. AANDC dismissed Green's griev- ance 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. e court noted that previous arbitration had established that decisions that "harassment is gen- erally a course of conduct viewed objectively rather than a single act." erefore, 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 con- duct of a subordinate. As a result, the report's approach to harass- ment and its definition was rea- sonable, said the court. It also found that the liver com- ment was made in the context of the colleague telling Green about the anonymous email — specifi- cally noted in the investigation report — and there was no find- ing that the colleague had actually written the email. As this incident was covered in the Quintet report, it was reason- ably considered and not an error, said the court. The investigation report was "exhaustive in its factual findings and in its consideration of the evi- dence," said the court, given mul- tiple 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 investi- gation, involving multiple parties, in a difficult work environment," which required a careful investi- gation, found the court. For ex- ample, 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 "ex- tenuating circumstances" reason for allowing the process to ex- ceed 12 months, said the court in dismissing Green's appeal in its entirety. For more information see: • Green v. Canada (Aboriginal Affairs and Northern Develop- ment), 2017 CarswellNat 7095 (F.C.). Jeffrey Smith is the editor of Ca- nadian Employment Law To- day. For more information, visit www.employmentlawtoday.com. Jeffrey Smith Legal View The Canadian Payroll Association's InfoLine is a one-stop shop for payroll compliance knowledge. Fast and reliable answers at your fi ngertips. Find out how you, your HR team and organization can benefi t from InfoLine and other payroll compliance tools. NEED PAYROLL COMPLIANCE TOOLS? Download your complimentary copy of the Year- end Checklist to help you comply with payroll legislation and avoid the risk of costly penalties. 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