NC-009 - Harassment

The Appellant lodged a Harassment Complaint alleging that a colleague (Alleged Harasser) had belittled, threatened and otherwise victimized him at a meeting with a representative of a partner agency and during conversations in the presence of other members. Following an investigation, the Respondent concluded that the Harassment Complaint was not established (Decision). The Appellant furnished a timely appeal of the Decision. He argues that the Respondent erred in his evaluation of the harassment allegations individually, in finding that one alleged incident was not sufficiently severe to amount to harassment by itself and in relying upon the intention of the Alleged Harasser during one impugned meeting. Additionally, the Appellant raises an issue of procedural fairness, urging that notes taken by his superior were disclosed after the Decision was issued but ought to have been before the Respondent during the decision-making process.

The ERC found that the absence of the Appellant’s supervisor’s notes from the materials before the Respondent did not result in procedural unfairness to the Appellant, as the issues raised in the notes had been raised in other evidence before the Respondent. The ERC nevertheless concluded that the notes should be admitted and considered by the Adjudicator in addressing this appeal.

The ERC found that the Respondent did not err in his evaluation of the allegations of harassment. Rather, the Respondent considered each allegation separately (a necessary step in assessing a harassment complaint). He also understood and met the requirement that he consider all of the incidents of alleged harassment as a whole. The Respondent also did not err in his evaluation of certain evidence, given that his assessment of that evidence gave rise to no manifest and determinative error. Additionally, the Respondent did not err by finding that one alleged incident was insufficiently severe to constitute harassment by itself. A single incident will be viewed as harassment only in rare circumstances where it is serious and has a long-lasting effect. Such an incident cannot be a mere instance of workplace animosity or conflict, without more. Otherwise, any unpleasant event or dispute may be found to be harassment, a conclusion that would trivialize the harassment complaint process.

However, the ERC found that the Respondent erred by focussing on the intention of the Alleged Harasser when concluding that the Alleged Harasser’s actions at a meeting did not amount to harassment. The test to be applied when deciding if harassment occurred requires a review of an alleged harasser’s actions from the perspective of a reasonable person who places himself/herself in the complainant’s situation, not from the perspective of the alleged harasser. The ERC emphasized that it was not making a finding of harassment. Rather, it found that the Respondent erred in applying the correct legal test and analysis to the evidence before him.

The ERC recommended to the Adjudicator that he or she allow the appeal and remit the matter to the Respondent or to a new decision-maker with specified directions for a new decision.

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

The Appellant challenged a decision that found the Appellant’s complaint of harassment was not established. The Appellant raised four grounds of appeal: the Respondent erred in considering the allegations separately and not holistically; the Respondent erred in finding that the April 23, 2014, incident was not severe; the Respondent erred in relying on the Alleged Harasser’s intention in meeting with the Appellant on February 12, 2015; and, the Respondent erred in her consideration of certain evidence. The Appellant was served the Record of Decision on August 27, 2015, and presented his appeal on September 10, 2015.

Having found that the Respondent erred in law by failing to apply the reasonable person test to Allegation 7, the Appeal Adjudicator allowed the appeal and remitted the matter for a new decision by the current Commanding Officer in accordance with subparagraph 47(1)(b)(i) of the CSO (Grievances and Appeals).