NC-039 - Harassment

The Appellant reported indirectly to the Alleged Harasser. Over time, friction developed between them. The Appellant perceived that certain workplace directives or initiatives had been implemented by the Alleged Harasser to target him and make him want to work elsewhere. These included a change in the Appellant's schedule and a plan to rotate members out of the Appellant's section. The Appellant also felt that the Alleged Harasser had acted in a disrespectful and belittling manner towards him during some of their interactions by yelling and criticizing him. The Appellant eventually lodged a harassment complaint against the Alleged Harasser. In the course of the subsequent harassment investigation, the Appellant provided a statement, as did several witnesses. The Alleged Harasser did not provide a statement during the investigation. However, the Alleged Harasser later submitted a rebuttal to the investigation report and in so doing addressed the Appellant's version of the facts. The Appellant was not provided with an opportunity to respond to the Alleged Harasser's rebuttal.

The Respondent found that the Complaint was not established as the Alleged Harasser's actions did not, in his view, amount to harassment. Certain practices which had been implemented and may have impacted the Appellant reflected organizational needs. As for specific instances of alleged disrespectful behavior, the Respondent observed that the Appellant and Alleged Harasser had different perspectives regarding certain issues and that their discussions may have been "more spirited or animated than what was typically common amongst other working relationships". However, the Respondent found that no witnesses had observed any tense exchanges between the Appellant and Alleged Harasser, and that the Alleged Harasser's communications when meeting with the Appellant were not disrespectful in nature. The Appellant lodged an appeal of the Respondent's decision.

The ERC found that the Respondent's decision revealed a manifest and determinative error of fact. The Respondent's finding that no witnesses had observed any tense exchanges between the Appellant and Alleged Harasser, and that the Alleged Harasser's communications when meeting with the Appellant were not disrespectful in nature, could not be reconciled with the evidence of Witness A. Witness A, in a statement to investigators, claimed to have observed the Alleged Harasser raise his voice at the Appellant in a manner which made her uncomfortable and appeared to have the same effect on the Appellant. Witness A characterized the behavior as something that "shouldn't happen". The Respondent's failure to address this evidence raised a concern that the Respondent may not have properly considered whether harassment had occurred, either on a cumulative basis or as a single isolated event. The ERC also found that the failure to provide the Appellant with an opportunity to respond to the Alleged Harasser's version of events during the investigation of the harassment complaint resulted in a breach of procedural fairness.

The ERC recommended that the Final Adjudicator allow the appeal and remit the matter to a decision-maker for a new decision.

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

The Appellant submitted a harassment complaint against the Alleged Harasser, which the Respondent found to be unsubstantiated for reasons the ERC Chairperson summarized as follows:

The Respondent found that the Complaint was not established as the [Alleged Harasser's] actions did not, in his view, amount to harassment. Certain practices which had been implemented and may have impacted the Appellant reflected organizational needs. As for specific instances of alleged disrespectful behaviour, the Respondent observed that the Appellant and [Alleged Harasser] had different perspectives regarding certain issues and that their discussions may have been "more spirited or animated than what was typically common amongst other working relationships". However, the Respondent found that no witnesses had observed any tense exchanges between the Appellant and [the Alleged Harasser], and that the [Alleged Harasser's] communications when meeting with the Appellant were not disrespectful in nature. The Appellant lodged an appeal of the Respondent's decision.

Consequently, the Appellant presented this appeal arguing that the decision was clearly unreasonable. The ERC examined the appeal record and, for the following reasons, recommended the appeal be allowed and the matter remitted to a new decision-maker for a new decision:

The ERC found that the Respondent's decision revealed a manifest and determinative error of fact. The Respondent's finding that no witnesses had observed any tense exchanges between the Appellant and [the Alleged Harasser], and that the [Alleged Harasser's] communications when meeting with the Appellant were not disrespectful in nature, could not be reconciled with the evidence of [a Public Service employee (PSE)]. [The PSE], in a statement to investigators, claimed to have observed the [Alleged Harasser] raise his voice at the Appellant in a manner which made her uncomfortable and appeared to have the same effect on the Appellant. [The PSE] characterized the behaviour as something that "shouldn't happen". The Respondent's failure to address this evidence raised a concern that the Respondent may not have properly considered whether harassment had occurred, either on a cumulative basis or as a single isolated event. The ERC also found that the failure to provide the Appellant with an opportunity to respond to the [Alleged Harasser's] version of events during the investigation of the harassment complaint resulted in a breach of procedural fairness.

The Appeal Adjudicator readily agreed with the ERC findings, allowed the appeal and remitted the matter for a new decision by the current Commanding Officer "X" Division in accordance with subparagraph 47(1)(b)(i) of the CSO (Grievances and Appeals).