# 2017-092 Others, Summary Investigation

Case Summary

F&R Date: 2017–12–11

Following the submission of a harassment and discrimination complaint against the grievor, the responsible Commander launched a harassment investigation and a summary investigation (SI). The issue raised in the grievance pertained to the SI which, according to its terms of reference (TOR), was aimed at investigating two alleged handling incidents of documents and electronic data. The grievor contended that the investigation exceeded its mandate, that there were numerous procedural fairness violations and that the decision maker was biased.

First, the Committee had to determine whether initiating an SI was the appropriate course of action under the circumstances. In accordance with Defence Administrative Orders and Directives 7002-2, Summary Investigations, an SI is conducted to obtain evidence relating to the matter being investigated in order to prevent the recurrence and identify the cause. Examining the motives for launching the SI, the Committee determined that it was initiated to investigate whether the grievor was at fault. Accordingly, ordering the SI was not a reasonable course of action. The Committee also observed that the investigation produced findings beyond those required by its TOR and that the approving authority included unreasonable conclusions, not supported by evidence.

Second, the Committee examined the issue of procedural fairness. With regards to the Notice of Adverse Evidence (NOAE) issued to the grievor, and subsequently cancelled, the Committee found that it was unreasonable to cancel the NOAE given that no determination was made that the evidence was not in fact adverse and that no adverse findings would be made against the grievor. Having established that the NOAE should have been maintained, the grievor had a right to access the full evidence and to make representations. As the grievor was denied those rights, the Committee found that the grievor was not afforded procedural fairness as mandated by policy.

Finally, on the issue of the apprehension of bias, on the basis of some of the decision maker's comments and actions, the Committee found that an informed person would conclude that it was more likely than not that, whether consciously or unconsciously, the decision maker would not assess the grievor's actions fairly in adjudicating the SI.

The Committee recommended that all documents related to the SI be removed and disposed of in accordance with the Library and Archives of Canada Act.

FA Decision Summary

FA Decision Pending