NC-033 - Harassment

The Appellant and the Alleged Harasser, both civilian members, worked in the same section since 2010. The Alleged Harasser was the team leader of the section and the Appellant's direct supervisor. In the fall of 2013, the Alleged Harasser presented the Appellant with a performance log (1004) as she noticed several discrepancies and issues within the Appellant's files that caused concerns. The Alleged Harasser met with the Appellant to discuss these issues, and the Appellant advised that she was having some difficulties managing her caseload. In May 2014, a concern regarding one of the Appellant's files was brought to her and the Alleged Harasser's attention. The Alleged Harasser requested that the Appellant review the paper copy of the file in order to determine where the error originated from. The Appellant noticed that she had mistakenly discarded the file in a confidential waste bin and went to retrieve it. Approximately one week later, a file was mistakenly left on the Appellant's desk that was meant for another member. Inadvertently, the Appellant worked on the file and was told that it should have been given to the member as it was part of a series of cases already assigned to that member. The Alleged Harasser reassigned the file and sent an email to the member explaining the confusion. In May 2014, the Appellant commenced a period of medical leave.

The Appellant filed a Harassment Complaint against the Alleged Harasser and listed five (5) allegations of harassment. An investigation was held during which twelve witnesses were interviewed and additional materials obtained. After receiving the final investigation report, the Respondent held that the harassment complaint was not established. In the Decision, the Respondent addressed each allegation one by one by summarizing the evidence collected during the investigation for each allegation.

The Appellant appealed the Decision on the grounds that the Respondent ignored clinical evidence provided by the Appellant's healthcare providers substantiating harassment in the workplace, he misinterpreted the evidence and that there were procedural errors within the investigation itself, including one of her allegations not being canvassed during the investigation. The Appellant provided additional materials with her appeal submission including a Veteran's Affairs Canada decision (VAC decision) in which the Appellant was granted a disability pension.

Firstly, the ERC found that, aside from the VAC decision, the additional materials filed by the Appellant were not admissible as they could reasonably have been known before the Respondent's decision. The ERC found that the Respondent's failure to address the clinical evidence does not render his decision clearly unreasonable. The diagnosis is grounded on the healthcare professional's expertise, but who did not have the final investigation report. While the Respondent based his decision on the independent investigation which revealed that none of the witnesses could corroborate the Appellant's version of events; some even contradicted the Appellant's account of the facts. Moreover, many of the Appellant's perceptions were not shared by her colleagues. The ERC found that the Respondent addressed the applicable test and did not err in his interpretation of the evidence. Lastly, the ERC found that the Appellant had ample opportunity to address an allegedly forgotten allegation, but failed to do so.

The ERC recommended that the appeal be denied.

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 three grounds of appeal: the Respondent erred in not considering medical evidence; there were procedural errors in the investigation; and, the Respondent erred in applying the definition of harassment.

The ERC did not find merit in the Appellant’s arguments, determining that the Respondent did not err in his analysis of the events. The Chairperson observed that the investigation included the audio statements from ten witnesses, the Appellant, and the Alleged Harasser, as well as the examination of relevant documents, determining that none of the witnesses corroborated the Appellant’s version of the events, and some offered contradictory accounts.

The Appeal Adjudicator accepted the ERC’s recommendation, dismissed the appeal and confirmed the decision pursuant to paragraph 47(1)(a) of the Commissioner’s Standing Orders (Grievances and Appeals).