Status of Women Committee on Feb. 14th, 2013

[Robin Kers]

Earlier, I provided the committee, and PSAC in its brief provided the committee, with a reference to the case of Ms. R. in British Columbia. In preparing for my appearance before this committee, I selected that one as a classic case of a public servant employed at the RCMP and the hoops, barriers, and hurdles they have to go through to deal with the issues. I also indicated in an earlier appearance that even we have difficulty having people come forward to deal with this issue because of the stigma.

Returning back to Donald Ray, for example, in our involvement in this file following a release of the decision into the review of his actions, we only have three out of seven women who are prepared to discuss this issue with the union, even though it's clear that our perspective is to try to seek healing and redress where appropriate and movement forward in that really heinous file.

There are problems in every government department when you raise issues of harassment, in particular, sexual harassment, but it's particularly difficult in the RCMP because of the nature of that type of organization. Organizations like National Defence and the RCMP have that rank hierarchy sort of process where public servants deal with people who have a level of authority and a view of their authority that is very different from the public service management cadre in other departments. It's a combination of the culture and environment, and in my view a lack of sufficient movement by successive governments to address this issue. It's not an environment where women are prepared to come forward.

We hear about this. We'll have conversations with people and we'll ask them to be more forthcoming so that we can deal with the issue with the employer. There's such an enormous level of fear, discomfort, and hurt that they're just not prepared to do it.

[Judy Sgro, Liberal, York West, ON]

With Donald Ray, though, only three women would come forward out of seven.

[Robin Kers]

Only three out of seven have agreed to contact with us so far, yes. I'm hoping that the appearances before the Status of Women committee, an airing of concerns, and your respective perspectives may encourage people to be a little more comfortable in coming forward.

[Judy Sgro, Liberal, York West, ON]

Certainly the only way that we're going to make a great institution like the RCMP as great and respected as we want them to be is to have all of them feeling confident that they can come out with their complaints and that there won't be the reprisals and the put-downs. Hopefully, through our work, we'll make the right recommendations in this report that will be helpful.

You mentioned Ms. R. Could you elaborate a bit? I don't believe the committee has the brief that you mentioned. Could you elaborate a bit about the case of Ms. R.?

[Robin Kers]

I believe I provided a case summary of that to the clerk, and she would be better prepared to answer that than myself.

[Judy Sgro, Liberal, York West, ON]

Can the clerk distribute that to us?

[The Chair, NDP, Marie-Claude Morin]

The document in question has been distributed to the committee.

[Judy Sgro, Liberal, York West, ON]

Okay. Given the fact that we won't get that until after your testimony, could you generally comment on what the individual experienced?

[Robin Kers]

I can, but I would just preface that if this committee wants more direct testimony on that issue, I'm pleased to advise this committee that Ms. R. is prepared to appear before the Status of Women committee in camera and respond to your direct questions.

But in any case, Ms. R.—and of course I identify her this way for confidentiality reasons—is a detachment-level employee in British Columbia who experienced incidents of sexual harassment and brought them to the attention of her supervisors, who chose to deal with the matter via a code of conduct investigation rather than a sexual harassment investigation.

Quite frankly, that has always been the core of the problem for public servants, that it's not a problem dealing with public servant to public servant harassment complaints, and we don't have any mandate to speak about regular member to regular member complaints because we don't represent regular members. But the problem has always been, how do you deal with complaints where the respondent and the complainant are variously a public servant and a regular member?

In any case, the complaint was filed and an investigation was conducted. The member in question was, for want of a better term, disciplined in a very minor way, and then retaliated, leading to the filing of another complaint. This is the problem. It just got worse, and eventually Ms. R. became extremely ill. She was diagnosed with PTSD and had to go on workers compensation.

I know the RCMP came in and made their own presentation to this committee back in November, I noticed that their presentation deals very extensively with the costs of the after-effects of these types of issues. So you have a classic example here of where the improper handling of this file and the improper dealing by the RCMP with the respondent led to another complaint, led to illness, led to costs to the Province of B.C., led to costs to Canada, and led to costs to the RCMP, never mind all the personal costs to the individual.

Have I run out of time?

[The Chair, NDP, Marie-Claude Morin]

I have to stop you there. Thank you.

We now move to Ms. O'Neill Gordon. You have five minutes.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

Thank you, Madam Chair,

Thank you for being here with us this morning.

You spoke about your role when an allegation is raised relating to sexual harassment. I was wondering, what do you do to assist a member of your union in the event of a sexual harassment grievance? Do you provide legal assistance? Do you advise a member what type of claim or process to follow? What is your role in that area?

[Robin Kers]

First and foremost, our role is to ensure that we have all the facts before us, because without all the facts, it's inappropriate for us to suggest a course of action for that particular circumstance. Once we have the facts, the next logical step would be to fully inform our member of the various means available to deal with the particular issue, and depending upon the severity of the issue, the duration, the time, and the environment, we will make one or another recommendation, such as I mentioned in my earlier testimony.

So we will advise them of the pros and cons of doing things one way versus another. It depends on what process is chosen. For example, with the internal harassment complaint process, there is no right to representation under Treasury Board policy and guidelines, but under the grievance process, there is a right to representation. So depending on the process that is chosen, the employee may or may not proceed on their own on a harassment complaint with advice and guidance but no direct representation, or an employee may proceed with a grievance where the union representative will be present with the employee throughout the various levels of the process.

Again, depending on the nature of the issue, we may recommend a filing of a complaint under the Canadian Human Rights Act, which will be set aside until normal redress measures are utilized and finalized within a particular department, and again, depending on the nature of the incidents, we may recommend pursuing a complaint under regulation 20 of the Canada Labour Code, Part II - Occupational Health and Safety.

It depends on the circumstances. There are no unions that I know of that have a cookie-cutter formula for this. Every case is reviewed on the information available to us, the merit, and a number of other factors before advice is given.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

If a member chooses to pursue a human rights claim or to participate in informal methods of resolution, does the type of support provided differ from the other measures?

[Robin Kers]

I'm sorry, could you repeat that?

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

If a member chooses to pursue a human rights claim or to participate in informal methods of resolution, does the type of support differ or is it all the same?

[Robin Kers]

Yes and no. First off, the informal conflict resolution process is in most departments. I should point out that the RCMP, for example, still does not have an informal conflict resolution program that's been approved, it still doesn't have a well-developed process, and it's in the process of hiring a number of ICMS practitioners. For an ICMS process, people who are new to that type of a process and are fearful or uncertain or uncomfortable have the option of asking for a union representative to attend with them, but that's more for accompaniment and comfort than classic representation.

In a complaint filed under the Canadian Human Rights Act, it's normally the Public Service Alliance of Canada that assists its members when there's a complaint before the Canadian Human Rights Commission. But the Canadian Human Rights Commission will not generally deal with a complaint filed unless it has assurances that all other reasonable methods of resolving the thing, based on internal department policies, have been utilized. It's something we advocate to people in case the internal mechanisms don't work in resolving the issue, and then they have that to rely on as a fallback position. But it's not considered as the first avenue to try to resolve these issues.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

Okay. Thank you for your great explanation.

[The Chair, NDP, Marie-Claude Morin]

We now go to Ms. Ashton. You have five minutes.

[Niki Ashton, NDP, Churchill, MB]

Thank you very much.

Mr. Kers, when we last heard from you, you mentioned how—and we've heard from various people—Bill C-42 will not make a significant difference. I'm wondering if you could speak to that and to this idea of how we could improve it—if Bill C-42 is improvable. And what kind of legislation truly needs to be brought forward, in your mind?

[Robin Kers]

I'm a little concerned that my comments on Bill C-42 have been taken out of context. First, you have to stipulate that USGE and PSAC do not represent the regular members of the RCMP.

As to what potential impact Bill C-42 may have on the resolution of regular member to regular member complaints, it's not my position to comment. My comment was intended to be a reflection of our view as to whether or not the change to Bill C-42 will improve the situation of public servants.

The concern that we've always had, and I've mentioned it before, is we're not satisfied with the way harassment complaints have been dealt with when the complainant is a public servant and the respondent is a regular member. So the failing in Bill C-42, as far as I'm concerned, is that it's largely devoted to addressing the much publicized issue of harassment between member and member and the need for the commissioner to have a capacity to deal with that issue in a more direct manner.

Insofar as it affects the public servants, the problem with the change to Bill C-42 is that it essentially gives the commissioner and the RCMP the right to bypass or not have applicability of the Treasury Board policies and directives in investigations where a regular member is one of the parties. The problem with that, of course, is that it's not a problem if both parties are regular members, but it's a problem when the other party or the complainant is a public servant.

The RCMP proposes to create a new form of investigation under what's called a commissioner standing order. The problem with that process is it's going to apply to any harassment complaint that involves a regular member. Again, I go back to this: what if the complainant is a public servant? We see that as problematic because public servants involved in that complaint would be put under a process that is really more designed for dealing with member to member.

The other problem we have is that we're not entirely satisfied that a commissioner standing order has the legality under law to apply to public servants. I raised that issue internally at an RCMP harassment working group committee yesterday, and they'll provide their legal opinion in due course.

Our view is that the RCMP has to recognize the need for a separate complaint process when the complainant is a public servant and the respondent is a regular member. It can't rely on the new process that they're developing because public servants have certain rights and benefits and privileges under Treasury Board policy that they wouldn't necessarily have under a commissioner standing order.

Just for your information, in response to a query from Ms. Sgro at the earlier sitting, I have provided today a complete list of recommendations in response to the request for a list of recommendation vis-à-vis the RCMP. You will have that once translation is done, I presume.

I could go over it orally if you wish, but it's up to you.

[Niki Ashton, NDP, Churchill, MB]

I think we're good to look at it.

[The Chair, NDP, Marie-Claude Morin]

The document will be provided to the committee once it has been translated.

[Niki Ashton, NDP, Churchill, MB]

Thank you for sharing it with us.

You mentioned a working group. How long has this working group been going on for?

[Robin Kers]

Essentially, the RCMP, recognizing that the changes to Bill C-42 would affect a variety of different issues and elements, created a number of different working groups, one of which is the harassment working group. So it's a working group that's composed of several bargaining agent representatives, the remainder, of course, being RCMP managers' representatives with varying specialties and involvement.

As you'll note from the list of recommendations that I've provided, one of our concerns is that we have provided feedback in the past to the RCMP over the last three or four years, because there's been a long, convoluted process of reviewing the internal harassment policy and looking to see what improvements needed to be made. The concern we have is that there may not be sufficient weight given to our input into that committee.

[The Chair, NDP, Marie-Claude Morin]

Thank you.

We now have three minutes left.

Ms. Ambler, those three minutes are yours.