Issue-specific—Standing Committee on Public Accounts: Office of the Auditor General Audit on Respect in the Workplace (January 28, 2021)

Key facts and actions on harassment

According to the most recent 2019 Public Service Employee Survey results, there has been a downward trend in employees saying they have experienced harassment and discrimination on the job (19%, which is down 3 percentage points from 2018).

The Agency currently has 92 active harassment complaints in varying stages of the complaint process.

The number of new harassment complaints has declined since last year:

• In 2019 to 2020:
  • 47 open files were transferred from regional offices for central coordination
  • 66 net-new (additional) complaints were filed (excludes the carry-forward files from the year prior)
  • Of the combined total of 113, 20 were subsequently closed
• In 2020 to 2021:
  • 93 remained in progress from the previous year
  • 21 net-new complaints filed thus far (excludes the carry-forward files from the year prior)
  • Of the combined total of 114, 22 have been closed to date leaving 92 active files

If a reported incident meets the definition of harassment, the National Integrity Centre of Expertise (NICE) will work with delegated managers to coordinate the overall process, including an independent third-party investigation.

If the investigator's report concludes that the complaint allegations are founded, delegated managers will make a determination of discipline, with guidance and input from Labour Relations.

Of the five founded complaints (in 2019 to 2020 and 2020 to 2021 combined), two involved unfair treatment, one involved humiliation, one involved physical violence, and one met the definition of discrimination.

Key facts and actions on discrimination

According to the most recent 2019 Public Service Employee Survey results:

• 12% of employees said they have been discriminated against in the CBSA workplace in the preceding 12 months. This represents a 2% drop from the previous year (14% in 2018)
• There was also a 2% decrease in members of Employment Equity groups being a victim of discrimination on the job in the preceding 12 months

While employees are encouraged to file discrimination complaints internally in the same manner as harassment complaints (via the National Integrity Centre of Expertise), employees also have the option of filing a human rights complaint with the Canadian Human Rights Commission (CHRC).

Discrimination complaints that cannot be resolved internally are managed and directed to the CHRC. The CHRC and its staff take the lead on files and will direct the parties, including the CBSA, during the course of the complaint process.

• When a human rights complaint is filed against the CBSA, the Agency becomes a "party" to the complaint and is considered the "respondent"
• Once a complaint proceeds to the investigation stage, the CBSA is obligated to cooperate with requests from the CHRC for information, documentation or witness names

The CHRC may also accept discrimination complaints filed by non-employees for mediation or investigation.

For example, if a complainant, who was not a federal public sector employee, filed a discrimination complaint to allege that they were not hired for a position because of their race, it is likely that the CHRC would accept their complaint as the complainant would not have access to the internal grievance process.

"Kickbacks" occur when the CHRC rejects a complaint and asks the complainant to exhaust the grievance process entirely, including judicial review, before requesting that their complaint be reconsidered.

Many kickbacks are withdrawn as a result of grievance resolution.

Key facts and actions on workplace violence

According to the 2019 Public Service Employee Survey, the number of workplace violence complaints fell from 37 in 2018 to 28 in 2019.

• On average, 45% of complaints warranted formal investigation
• The Agency averages approximately 1 founded case of violence in the workplace per year over the last three years

The former mandatory training on Violence Prevention in the Workplace had a completion rate of 83% Agency-wide before it was replaced by a new course (in accordance with Bill C-65) on January 1, 2021. Completion rates will not be available until February 2021.

Initially, an internal review is done to determine whether the incident meets the definition of workplace violence. If it meets the definition, informal resolutions are encouraged, however, the choice is ultimately up to each employee.

If existing informal resolution processes cannot resolve the situation, an investigator is hired to review the case and produce a report with findings and remedial recommendations.

If the complaint is screened out, the complainant may refer the complaint to the Labour Program at Employment and Social Development Canada which will conduct its own review of the allegations.

The number of workplace violence complaints, the majority of which are received from the front line, has dropped significantly over the last 3 years, from 37 total complaints filed in fiscal year 2018 to 2019, to only 10 in fiscal year 2020 to 2021.

The number of founded complaints has remained steady over the same period, with 1 complaint deemed founded per year.

CBSA processes for addressing harassment, discrimination and violence in the workplace

Harassment complaints

Employees who experience or witness harassment have a responsibility to report it to the Agency's National Integrity Centre of Expertise (NICE), in writing and provide all relevant facts. While a working level employee may not face repercussions for failing to report harassment, members of management have and will continue to be disciplined for witnessing harassment and not taking action (in other words, remaining silent and not reporting it).

The NICE determines whether the nature of the complaint meets the definition of harassment on a prima facie basis. Treasury Board defines harassment as:

improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (in other words, based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction). Harassment is normally a series of incidents but can be one severe incident which has a lasting impact on the individual.

If the incident in question meets the definition of harassment, NICE will work with delegated managers to coordinate the overall process, including an independent third-party investigation. (Note: This is always the case when the allegation meets the definition of harassment.)

If the investigator's report concludes that the complaint allegations are founded, delegated managers will make a determination of discipline, with guidance and input from Labour Relations.

Discrimination based on a prohibited ground under the Canadian Human Rights Act

As discrimination is included in the TBS definition of harassment, employees are encouraged to file discrimination complaints in the same manner as harassment complaints.

Employees also have the option of filing a human rights complaint with the Canadian Human Rights Commission (CHRC), as does any member of the public.

The human rights complaint process is completely managed and directed by the Canadian Human Rights Commission (CHRC). The CHRC and its staff take the lead on files and will direct the parties during the course of the complaint process.

When a human rights complaint is filed against the CBSA, the Agency become a "party" to the complaint and is considered the "respondent."

If offered mediation as a means to resolve a complaint, the CBSA can accept or decline. However, once a complaint proceeds to the investigation stage, we are obligated to cooperate with requests from the CHRC for information, documentation or witness names.

If a complaint is deemed unfounded, the CHRC will close its file; the decision is final. A complainant can seek an application for judicial review with the Federal Court to challenge the finding that it is unfounded.

For a founded complaint, the parties will either be directed to participate in mandatory conciliation of the file, or the CHRC will refer the matter to the Canadian Human Rights Tribunal for a formal hearing.

Workplace violence

The CBSA processes workplace violence complaints in accordance with the Canada Occupational Health and Safety Regulations.

The first step is to review the matter to determine whether it could possibly fall into the definition of workplace violence. If so, informal resolution processes are encouraged.

If existing informal resolution processes cannot resolve the situation, a competent person (in other words, investigator) is hired to investigate and report back with findings and remedial recommendations. A regional Occupational Health and Safety committee will monitor the implementation of recommendations.

If the allegations is screened out based on lack of information, insufficient grounds, etc., the complainant may refer the complaint to the Federal Labour Program, which investigates and renders a decision of compliance.

Progress

When compared to the 2018 results, the 2019 PSES results show:

• 9% increase in positive responses to Question 34: Senior managers in my department or agency lead by example in ethical behaviour
• 5% increase in positive responses to Question 65: My department or agency works hard to create a workplace that prevents harassment
• 4% increase in positive responses to Question 43: I feel I can initiate a formal recourse process (for example, grievance, complaint, appeal) without fear of reprisal
• 4% increase in positive responses to Question 64: I am satisfied with how matters related to harassment are resolved in my department or agency
• 3% drop in positive responses to Question 58: Having carefully read the definition of harassment, have you been the victim of harassment on the job in the past 12 months?