DAOD 5516-1, Human Rights Complaints

1. Introduction

Date of Issue: 2013-02-22

Application: This DAOD is a directive that applies to employees of the Department of National Defence (DND employees) and an order that applies to officers and non-commissioned members of the Canadian Armed Forces (CAF members).

Approval Authorities:

  • Assistant Deputy Minister (Human Resources – Civilian) (ADM(HR-Civ))
  • Chief of Military Personnel (CMP)

Enquiries:

  • Director Civilian Recourse (DCR)
  • Director Human Rights and Diversity (DHRD)

2. Operating Principles

Context

2.1 Any policy or practice in the DND or the CAF that is a discriminatory practice may result in a complaint under the Canadian Human Rights Act (CHRA).

Purpose

2.2 This DAOD provides direction and information on the administration of complaints of discriminatory practice made under the CHRA that are filed against the DND and the CAF.

Standard of Conduct

2.3 DND employees and CAF members must not subject any person in the workplace to a discriminatory practice, or interfere or attempt to interfere in the human rights complaint process.

Consequences

2.4 Any DND employee or CAF member who subjects another person to a discriminatory practice in the workplace, or interferes or attempts to interfere in the human rights complaint process, may be liable to disciplinary or administrative action, or both.

Offences under the CHRA

2.5 The CHRA prohibits interference in the human rights complaint process. Specifically, it prohibits:

  1. obstructing an investigator in the investigation of a complaint (see subsection 43(3) of the CHRA);
  2. threatening, intimidating or discriminating against an individual because that individual has made a complaint or given evidence or assisted in any way in respect of the initiation or prosecution of a complaint or other proceeding under Part III of the CHRA, or because that individual proposed to do so (see section 59 of the CHRA); and
  3. obstructing a member of the Canadian Human Rights Commission (CHRC) or Canadian Human Rights Tribunal panel in carrying out its functions under Part III (see paragraph 60(1)(b) of the CHRA).

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3. Canadian Human Rights Commission

Complaint Administration

3.1 The CHRC administers human rights complaints filed under the CHRA, including the investigation of complaints of discriminatory practices.

3.2 The CHRC complaint administration process is separate from the internal processes of the DND and the CAF in response to a complaint filed against the DND or the CAF.

3.3 In the event of any discrepancy between the CHRC process as described in this DAOD and documents provided by the CHRC, the CHRC documents prevail. Specific information pertaining to the CHRC and its process may be obtained through their Web site or by contacting the CHRC directly.

Complaint Powers

3.4 In general, following the investigation of a complaint, the CHRC may:

  1. dismiss the complaint (see paragraph 44(3)(b) of the CHRA);
  2. appoint a conciliator (see section 47 of the CHRA); or
  3. refer the complaint to the Canadian Human Rights Tribunal for further inquiry (see section 49 of the CHRA).

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4. Complaint Process

Who May File a Complaint?

4.1 Under the CHRA any person may file a complaint against the DND or the CAF of an alleged discriminatory practice. Complaints are filed with the CHRC.

Time Limits

4.2 Human rights complaints must be processed in accordance with strict timelines. DND employees and CAF members must cooperate as soon as feasible with the DCR and the DHRD during the complaint process in order for the DND and the CAF to meet the CHRC-imposed timelines.

Respondents

4.3 Respondents named in a CHRA complaint are normally the DND and the CAF, but may include a DND employee, a CAF member or a specific organization internal to the DND or the CAF.

4.4 A DND employee or a CAF member may be named in a complaint but is not a respondent unless the CHRC specifically names the DND employee or a CAF member as a respondent.

Note – A DND employee or a CAF member who is named as a respondent in a complaint should consult the Treasury Board Policy on Legal Assistance and Indemnification.

Human Rights Coordinators

4.5 The persons set out in the following table are responsible for the coordination and administration of human rights complaints filed under the CHRA against the DND and the CAF:

The …is the human rights coordinator for …Administration

ADM(HR-Civ)

DND-related complaints.

The deputy coordinator for DND-related complaints is the Director General Workplace Management (DGWM).

The DCR assists the DGWM in the administration of DND-related complaints.

CMP

CAF-related complaints.

The deputy coordinator for CAF-related complaints is the Director General Military Personnel (DGMP).

The DHRD assists the DGMP in the administration of CF-related complaints.

Communication with the CHRC

4.6 The DCR and the DHRD are the primary points of contact for all complaints made under the CHRA that are filed against the DND and the CAF respectively, and conduct the day-to-day interactions with the CHRC that relate to the administration and processing of these complaints.

4.7 A leader, supervisor or manager who, without prior contact from the DCR or the DHRD, is approached directly by a CHRC representative or investigator must take no action except to remind the CHRC representative or investigator that the appropriate DND or CAF human rights administrator should be contacted.

4.8 During the investigation of a complaint, a CHRC investigator may request to speak directly with a DND employee or CAF member who:

  1. is named in the complaint;
  2. may have subject matter expertise in a specific area; or
  3. may have been a witness to an alleged discriminatory practice.

4.9 The DCR or the DHRD may authorize the direct liaison of units and other elements, and DND employees and CAF members who are witnesses or have subject matter expertise in a specific area, with the CHRC.

Disclosure of Documents and Other Information

4.10 A DND employee or CAF member must not disclose to the CHRC any document or other information related to a complaint that has been requested by the CHRC except through the DCR or the DHRD. This is intended to avoid prejudice to the DND and the CAF should the complaint proceed before the Canadian Human Rights Tribunal, as well as to ensure compliance with the Privacy Act and the Access to Information Act.

4.11 DND managers and commanding officers of units and other elements must ensure that documents and other information related to a complaint are:

  1. provided as soon as feasible when requested;
  2. treated as sensitive material;
  3. disclosed only to the DCR, DHRD, or other persons with a need to know; and
  4. not placed on a personnel record.

4.12 The following table outlines the human rights complaint process:

StageWho does it?What happens?

1

A DND employee, CAF member or other person

  • Files a complaint under the CHRA with the CHRC against the DND or the CAF.

2

The CHRC

  • Conducts an analysis to determine whether or not to deal with the complaint.
  • Advises the DND or the CAF of the complaint.

3

DCR or DHRD, as applicable

  • Gathers the necessary information.
  • Consults with subject matter experts as required.
  • Provides the position of the DND or the CAF to the CHRC.

4

The CHRC

  • May:
    • deal with the complaint;
    • offer mediation services to the parties;
    • suspend consideration of the complaint pending the outcome of an internal redress mechanism; or
    • dismiss the complaint.

5

DCR or DHRD, as applicable

  • If the CHRC has decided to deal with a complaint, the DCR or the DHRD, in consultation with subject matter experts, prepares a response to the complaint.

6

The CHRC

  • Designates an investigator to investigate the complaint. Once in possession of the CHRC investigator's report and all the submissions from the complainant and respondent, the CHRC may take one or more of the actions set out in paragraph 3.4.

Other Redress Mechanisms

4.13 Subject to the limitation period for the submission of complaints under the CHRA, the CHRC normally expects a complainant to first exhaust internal redress mechanisms before accepting their complaint.

4.14 For DND employees, the Public Service Labour Relations Act and the Public Service Employment Act provide the Public Service Labour Relations Board and the Public Service Staffing Tribunal (PSST) respectively with the authority to deal with human rights issues and make awards pursuant to the CHRA.

Note 1 – For information on civilian grievances, see DAOD 5026-0, Civilian Grievances.

Note 2 – For information on a staffing complaint and the recourse mechanism of the PSST, see the PSST Web site.

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5. Responsibilities

Responsibilities Table

5.1 The following table identifies the responsibilities associated with this DAOD:

The …is or are responsible for …

DGWM

  • carrying out the functions and duties on behalf of the ADM(HR-Civ) in respect of DND-related complaints filed under the CHRA; and
  • developing and monitoring human rights requirements.

DGMP

  • carrying out the functions and duties on behalf of the CMP in respect of CAF-related complaints filed under the CHRA; and
  • developing and monitoring human rights requirements.

DCR

  • assisting the DGWM in negotiating, resolving and administering DND-related complaints;
  • responding to CHRC requests for documents and other information, to be provided by units and other elements, related to:
    • pending or future complaints before the CHRC;
    • the obligations of the DND under the CHRA; and
    • identifying and assisting DND employees and CAF members as potential witnesses; and
  • providing the DGWM with information, recommendations and interpretations regarding issues at dispute in complaints.

DHRD

  • assisting the DGMP in negotiating, resolving and administering CAF-related complaints;
  • responding to CHRC requests for documents and other information, to be provided by units and other elements, related to:
    • pending or future complaints before the CHRC;
    • the obligations of the CAF under the CHRA; and
    • identifying and assisting DND employees and CAF members as potential witnesses; and
  • providing the DGMP with information, recommendations and interpretations regarding issues at dispute in complaints.

leaders, supervisors and managers

  • ensuring that all DND employees and CAF members comply with the CHRA and this DAOD; and
  • providing documents and other information on a timely basis to the DCR or DHRD when requested to do so.

DND employees and CAF members

  • informing themselves of their rights and responsibilities under the CHRA;
  • complying with the CHRA and this DAOD; and
  • taking immediate steps to address any discriminatory practice in the workplace or any report of such a practice.

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6. References

Acts, Regulations, Central Agency Policies and Policy DAOD

Other References

  • DAOD 5003-0, Restrictions on Duty and Individual Limitations
  • DAOD 5012-0, Harassment Prevention and Resolution
  • DAOD 5015-0, Workplace Accommodation
  • DAOD 5016-0, Standards of Civilian Conduct and Discipline
  • DAOD 5019-0, Conduct and Performance Deficiencies
  • DAOD 5026-0, Civilian Grievances
  • Guidelines for Civilian Discipline
  • Guidelines for Civilian Grievances
  • Workplace Accommodation - Guidelines
  • A-PM-007-000/FP-001, Harassment Prevention and Resolution Guidelines
  • Defence Ethics Programme
  • A Guide for CF Members Dealing with Canadian Human Rights Commission (CHRC)