NC-034 - Harassment

The Appellant and the Alleged Harasser, both civilian members, worked in the same section. The Alleged Harasser was the section manager. It appears that the triggering event of the harassment complaint relates to an incident regarding one of the Appellant’s files, where a document should have been sent but could not be found. More particularly, in May 2014, this issue, which was deemed a performance issue by the Appellant’s Team Leader (TL), was brought to the attention of the Alleged Harasser, as section manager. The Appellant met with the Alleged Harasser regarding this incident to discuss the TL’s approach to the incident.

The Appellant filed a harassment complaint against the alleged harasser listing seven (7) allegations of harassment including the Alleged Harasser telling the Appellant “You’re too nice” and “Why are you so secretive?”. Some Allegations pertain to similar behaviors, while others relate to the Alleged Harasser’s behavior towards other employees. The Respondent combined the allegations into one, but listed the seven (7) incidents. An investigation was held during which eleven (11) 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 found that the Alleged Harasser had acknowledged saying “You’re too nice” and “Why are you so secretive?” to the Appellant, but that the comments were not meant to be demeaning or disrespectful. The Respondent pointed out that witnesses corroborated that the Alleged Harasser was friendly with all her staff and addressed the Appellant in a kind and pleasant manner.

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, misinterpreted the evidence and that there was an error in the mandate letter as it was missing one of the allegations. 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 facts and perceptions recounted by the Appellant herself 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 agreed that the Respondent had not included per se the missing allegation in the Mandate Letter; however, the allegation seemed to encompass all demeaning, belittling, offensive, judgmental and unprofessional comments allegedly made by the Alleged Harasser.

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 appealed the decision arguing that the Respondent failed to consider critical evidence, erred in his evaluation of certain evidence, and failed to mandate a specific allegation for investigation.

The ERC did not find merit in the Appellant’s arguments, determining that the Respondent’s decision was not clearly unreasonable, was not based on an error of law, and was not contrary to principles of procedural fairness.

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