C-086 - Conduct Authority Decision

The Appellant appealed a Code of Conduct proceeding where one allegation of harassment under section 2.1 of the Code of Conduct was found to be established. The Respondent found that it did not matter if the vulgar remark made by the Appellant to the complainant was directed at the complainant or not. The Appellant was given a financial penalty of 11 days to be administered in terms of six days loss of pay and five days of annual leave in addition to remedial measures.

The Appellant argued that the Respondent erred in law by applying an incorrect test for sexual harassment. The Appellant further claimed that the Respondent misunderstood the evidence relating to a conversation between the Appellant and a subordinate that was vulgar. In essence, the Appellant claimed that the comment was not directed at the subordinate, but instead was directed at a difficult individual that the subordinate was dealing with. The Appellant claimed that on this basis, the Decision was clearly unreasonable. 

The ERC found that the Respondent had not erred in law since the new harassment definition did not require that the comment be directed at the complainant. However, the ERC found that the Respondent’s decision was clearly unreasonable because the Respondent did not identify the policy, let alone which definition, he applied in this case. Further, the Respondent did not provide any analysis on either criteria that can be found in the new definition. He did not reconcile conflicting evidence between the Appellant’s and the complainant’s version of what was said. The Respondent made a blanket general remark that the comment met the test for harassment.  

The ERC recommended that the appeal be allowed and recommended the decision that should have been made by the Conduct Authority. The record supported a finding that the Appellant’s remark met the threshold of harassment (as opposed to sexual harassment) pursuant to section 2.1 of the Code of Conduct.

The Commissioner is also required to review the conduct measure in light of the new Decision he must make. The ERC, after reviewing the record, recommended that the conduct measure should be 10 days loss of pay.

The Commissioner’s decision, as summarized by his office, is as follows:

The Appellant attended a conduct meeting with the Respondent. Afterwards, the Respondent found one established allegation in which the Appellant had engaged in sexual harassment. The following conduct measures were imposed: a financial penalty of 6 days of pay and 5 days of annual leave.

On appeal, the Appellant argues that the Respondent’s decision contained an error of law and was otherwise clearly unreasonable. The ERC recommended for the appeal to be allowed and for a new finding to be made on the allegation. The adjudicator accepted the ERC’s recommendation, allowed the appeal, and issued a decision in which the allegation was established. However, the adjudicator disagreed with the ERC’s recommendation on conduct measures and imposed a financial penalty consisting of 10 days of pay and 5 days of annual leave.