Directive on the harassment complaint process (2016)
1. Effective date
1.1 This directive is effective November 24 2016.
1.2 It is to be read in conjunction with the NRC Policy on Harassment Prevention and Conflict Resolution (2016) (the "Policy"), and, with the Policy, this document replaces the 2010 Guidelines on the Prevention and Resolution of Harassment in the Workplace.
This directive applies to NRC employees and to workplace circumstances as defined in the Policy.
This directive is pursuant to the provisions of the above cited Policy that require the establishment and maintenance of an effective harassment complaint process. It also sets out specific roles and responsibilities for the designated officials involved in the application of this directive.
A harassment complaint is a serious matter requiring prompt attention and treatment with sensitivity, competence, and discretion. A primary goal of any process to address such a complaint should be resolution with the least disruption possible for the workplace and for all parties concerned.
Therefore, while the seriousness of harassment allegations calls for access to a careful and rigorous process from the outset, it is consistent with such a process that many cases may, upon closer exploration and with the consent of all parties, be effectively dealt with through informal resolution processes.
Details on the steps in the harassment complaint process can be found in The Treasury Board Secretariat (TBS) Guide on Applying the Harassment Resolution Process
This directive is also to be read, when relevant, in conjunction with the following:
- Canada Labour Code, including the Canada Occupational Health and Safety Regulations dealing with Violence Prevention in the Workplace
- The Canadian Human Rights Act
- The NRC Code of Conduct
4. Directive statement
The objective of this directive is to describe the requirements for the harassment complaint process at NRC and for the achievement of the expected results below.
4.2 Expected results
This directive anticipates the following:
- that complaints of harassment at NRC are handled fairly, confidentially, effectively, and in a timely manner; and
- that steps are taken to restore the well-being of the workplace after such a complaint has been addressed.
The President of NRC is responsible for ensuring corrective measures are taken when significant issues arise in regard to compliance with this directive and for obtaining a report on compliance when required.
The Secretary General in consultation with the Vice-President (Human Resources) will report to the President when actions are not implemented satisfactorily or in a timely manner.
5. The process
The NRC Secretary General is responsible for ensuring that the harassment complaint process is carried out promptly; respects the principles of procedural fairness towards the complainant, the respondent, and all other parties involved; and follows the practices set out in the steps listed below.
Prior to a formal written complaint
Any time prior to the submission of a formal, written complaint, employees or managers may contact the NRC Secretary General's Office (NRC-SGO) in respect to informal resolution options in difficult situations and workplace conflicts. This guidance would include direction to appropriate information and other support resources including those offered by the Employee Assistance Program (EAP) and union representatives.
5.1 Reception and initial response
When a formal complaint is submitted in writing, the Secretary General will, without undue delay (normally within five (5) working days), acknowledge receipt of the complaint in writing to the complainant. If the complainant copied other individuals, these individuals will receive a copy of this acknowledgement.
The initial response to the complaint should address the following questions and the written complaint should provide information necessary for appropriate consideration of these questions.
- Is there an active complaint under a different process, such as a grievance or other formal mechanism, on the same issue or has it been dealt with through another avenue of recourse?
- Does the written complaint relate to events that have taken place more than twelve (12) months earlier without any explanation for the delay in filing a complaint or description of extenuating circumstances?
- Is there clear evidence that the complaint is frivolous, vexatious, or in bad faith?
If the response is "yes" to any one of the above, the complainant (and parties copied) will be informed in writing that the complaint is dismissed with the reason for the dismissal included.
Referral to another appropriate authority
If the response is no to all of the above, a second consideration rests on the following questions.
- Does the complaint describe incidents of violence, including alleged threats as described in the Canada Labour Code or the Canada Occupational Health and Safety Regulations dealing with Violence Prevention in the Workplace as described in the NRC Directive on Workplace Violence Prevention? or
- Does the complaint describe assaults, including sexual assault and criminal harassment, subject to the Criminal Code?
If the response is "yes" to one of the two questions above, the complainant (and parties copied) is (are) informed of the referral to another authority, and the reasons for the referral are cited.
If the answer is "no" to all of the above, the process will move to the Prima Facie Evaluation.
5.2 Prima facie evaluation
The Prima Facie Evaluation is conducted by the Secretary General for complaints that have not been dismissed or referred. The Secretary General will normally proceed to the Prima Facie Evaluation within ten (10) working days of the Initial Response. A prima facie evaluation of the complaint includes verification that the case as described in the Complaint meets the definition of "harassment" as set out in the NRC Policy on Harassment Prevention and Conflict Resolution (2016).
The written complaint is considered admissible only if it meets this definition. The determination in these matters is to be based on evidence and on how a reasonable person might perceive the cited conduct. The complainant (and parties copied) are notified in writing without undue delay of the decision related to the admissibility of the complaint and of the reasons for the decision.
The complainant may clarify his or her complaint and resubmit it with additional information on one occasion; however, without additional information, the initial decision will not be revised.
5.3 Communication of the complaint
Upon the decision of admissibility, the Secretary General will seek guidance, as required, from the NRC's Access to Information and Privacy (ATIP) Coordinator to ensure that any personal information contained in communication on the complaint is handled in accordance with the requirements of the Privacy Act.
Once the documentation has been reviewed and, if necessary, redacted on the advice of the ATIP Coordinator, the Secretary General transmits the complaint documentation to:
- the respondent; and
- the level of management to whom the respondent reports and/or other appropriate management.
In doing so, the Secretary General sets out in writing:
- the next steps in the formal process;
- the need for the appropriate management level to decide whether specific measures should be taken to limit deterioration of relations between the parties and to respond in writing on this issue;
- the need for the appropriate management level to ensure that all persons associated with the complaint, including (if they are already aware of the complaint) colleagues of the parties and potential witnesses, understand the seriousness of the matter and the need to respect the sensitivity and confidentiality of the process;
- the consequences of potential reprisals against complainants, witnesses or respondents, and that actions of this nature could lead to disciplinary measures; and
- the anticipated financial costs of the complaint resolution process (informal conflict resolution fees or formal investigation fees), which the responsible Branch, Program or Centre will bear;
The complainant (and parties previously copied) also receive a copy of this letter.
The parties will be made aware of the options for informal resolution and asked to indicate in writing their intention in relation to the informal process. The complaint will be put in abeyance until responses are received or ten (10) working days pass. No matter the response at this stage, this abeyance might be invoked at any time in the formal process should all parties agree to alternative approaches.
Therefore, after ten (10) working days and in the absence of a mutual agreement to pursue other processes, the Secretary General will proceed to the Investigation stage as below and will inform the parties accordingly.
The Secretary General will reference and follow the process set out by the Treasury Board Secretariat for investigations involving members of the core public service.
Responsibilities of the Secretary General
The Secretary General ensures that all stages of the investigation process are completed in a timely fashion while maintaining contact with the Investigator throughout the Investigation and is specifically responsible for the following actions:
- Taking measures to select and mandate an external investigator that meets the Competencies Profile for Harassment Investigators within federal organizations ( as set by the Treasury Board Secretariat);
- Providing a copy of the complaint and complementary information to the investigator;
- Providing direct assistance and identifying any resource persons required to assist the investigation;
- Ensuring that the parties understand their rights and responsibilities, including their right to be accompanied during the investigation process;
- Approving the investigation plan;
- Receiving the reports of difficulties threatening the integrity of the process;
- Receiving the Preliminary Summary of facts from the investigator; and
- Ensuring that the parties have the opportunity to provide written comments and transmitting them to the investigator.
This process includes:
- Selecting, Contracting, and Mandating the Investigator, in accordance with established contracting procedures;
- Planning the Investigation with due consideration of the availability of the selected investigator and the complexity of the complaint;
- Conducting the Investigation to establish the facts, a stage that will depend on the availability of the parties involved and of any witnesses. If the investigator discovers that the complaint could be resolved through mediation or other means, he or she can inform the Secretary General accordingly at any point in the Investigation; and
- Preparation of the Preliminary Summary of Facts, which may require up to four (4) weeks after which the parties will be given ten (10) working days to review and comment on the Summary, unless an extension is granted by the Secretary General in response to a reasonable request.
5.5 Final analysis and conclusion
At this stage, the investigator considers the facts, the relevant policies or regulations, applicable jurisprudence, extenuating circumstances, and any other relevant information.
The investigator must decide whether specific behavior amounts to harassment. In order to make a finding of harassment, the matter must meet the definition of harassment as set out in the Policy, and this would mean that each of the elements listed below must be present. If even one of these elements cannot be proven, there will not likely be a finding of harassment.
- the conduct was improper and offensive;
- the behavior was directed at the complainant;
- the complainant was offended or harmed; and
- the person accused of harassment knew or reasonably ought to have known that this behavior would cause offence or harm to the complainant.
The investigator also considers whether there is evidence that the allegations are vexatious or were made in bad faith (allegations made for the purpose of annoying or embarrassing a person or allegation calculated to lead to no practical result).
When there are no witnesses or corroborating documents to be examined, the investigator should consider the likelihood of the allegations being valid, according to their plausibility and the logical flow of the facts, if the facts are well explained or sufficiently detailed.
Factors that can affect the credibility of the source or witnesses include:
- Direct, firsthand knowledge of the allegations;
- Expertise in the relevant subject area;
- Relationship between the source and the parties; and
- Consistency or contradictions in testimony.
5.7 Rendering a decision
The Secretary General:
- receives the final report prepared by the investigator and determines, normally within ten (10) working days, if the conclusion of the investigator is to be accepted, based on the soundness of the facts, the reasonableness of the analysis, procedural fairness, and the conclusions;
- informs the parties of the investigator's decision and provides the parties with a copy of the final report after ensuring that the report respect the provisions of the Access to Information and Privacy Acts; and
- provides a copy of the final report to appropriate management requesting follow up when, for example, a recommendation of disciplinary measures has been made.
When this is done, the investigation is administratively closed for the Secretary General.
Parties who are dissatisfied with the investigation report or with the decision of the Secretary General may challenge it through different means:
- Judicial Review
- Filing a grievance
- Filing a complaint with the Canadian Human Rights Commission if a prohibited ground of discrimination was a factor.
5.8 Restoring the well-being of the workplace
In the above communication on the decision, the Secretary General informs relevant management of its responsibility to restore the well-being of the workplace.
As this step may be very complex, the manager and any other interested party should seek support of the NRC Human Resources Branch and reference the Treasury Board Website and other appropriate resourcesFootnote 1.
The manager will prepare a follow-up plan that includes:
- measures to support the complainant;
- measures to support the respondent;
- measures to support the work group;
- reference to resource persons that are used to implement the plan; and
- issues to be considered in evaluating the process (hostility, absenteeism, employee turnover, recurring conflict among team members, lowered productivity, decrease in quality of work, lack of social interaction among team members, lack of motivation, and employees taking sides).
6.1 Other relevant legislation/regulations:
- Criminal Code
- Access to Information Act
- Privacy Act
- Official Languages Act
- NRC Official Languages Policy
- Public Service Labour Relations Act
6.2 Related policy instruments/publications
- NRC Code of Conduct
- Guides/Tools: (Provided by Treasury Board Secretariat)
- NRC Policy on Harassment Prevention and Conflict Resolution
Summary of process and timeline
|Reception and Initial Response||Normally five (5) Working days|
|Prima Facie Evaluation||Normally ten (10) Working Days|
|Communication of Complaint to Respondent||Dependent upon ATIP Office review and redaction|
|Abeyance for consideration of informal processes||Maximum of ten (10) Working days|
|Selecting, Contracting, and Mandating the Investigator||Conducted in accordance with established contracting procedures|
|Planning and Conducting the Investigation||Dependent upon availability of selected investigator, participation of the parties involved, and the complexity of the complaint|
|Preparation of the Preliminary Summary of Facts||Normally up to four (4) weeks or twenty (20) working days|
|Review of Facts by parties||Ten (10) working days|
|Final Analysis and Conclusion||Dependent upon the response to the Preliminary Summary of Facts and complexity of the case|
|Second ATIP Review||Dependent upon ATIP Office review and redaction|
|Rendering a decision||Normally within ten (10) working days of ATIP review of the Conclusion|
- Footnote 1
See TBS Guidelines Restoring the Workplace following a Harassment Complaintto manage sensitive and complex issues related to harassment in the federal workplace with the aim of restoring a respectful work environment once a formal process has been initiated.
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