NC-060 - Harassment

The Appellant filed a harassment complaint against a Public Service Employee (PSE) co-worker. The Appellant made three allegations. One allegation alleged that the Alleged Harasser embarrassed and humiliated him by making disparaging remarks in front of another person. The second allegation related to a number of comments made over a six month period, was repeated derogatory comments about him when he was in an Acting capacity.

The Appellant’s harassment allegations were synthesized into one allegation by the Officer in Charge (OIC) of the divisional Professional Responsibility Unit (PRU). The Respondent found that the allegation did not meet the definition of harassment. Therefore, the Respondent determined that an investigation was not warranted.

The Appellant claimed that the Respondent was biased and that the process was procedurally unfair because no investigation into his complaint was done. The Appellant also complained about the altered allegation.

The ERC found that the Appellant had not met his burden of showing a reasonable apprehension of bias. The ERC agreed with the Appellant that the decision was speculative in nature in respect to the findings, but most importantly, it was clearly unreasonable in the circumstances because of the absence of an investigation. The Appellant made allegations which, if proven, would clearly fall within the definition of harassment.

The ERC recommended that the appeal be allowed; that an investigation into the Appellant's complaints be undertaken; that the matter be decided by a different decision-maker; and that a copy of the Final Adjudicator's decision be forwarded to the divisional PRU.

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

The Appellant filed a harassment complaint against his Supervisor, his Line Officer and his colleague, who all work in the same unit. This appeal relates to the complaint against his colleague (the Alleged Harasser). The complaints against his Supervisor and the Line Officer are the subject of two other appeals.

A Harassment Reviewer from the Office for the Coordination of Harassment Complaints (OCHC) reviewed the matter. Since the Appellant indicated his interest in resolving the matter informally, the Reviewer recommended the Informal Conflict Management Process (ICMP), if the Alleged Harasser was willing to participate. The Officer in Charge of the Professional Responsibility Unit from a neighbouring Division, also reviewed the harassment allegations. She did not recommend informal resolution as the Alleged Harasser was not interested in participating. She did recommend that an investigation not be mandated into the allegations. The Respondent subsequently issued a Record of Decision (ROD), stating he did not believe the complaint was made in good faith, that it was retaliatory in nature, and that the allegations do not meet the definition of harassment.

The Appellant presented this appeal disputing the Respondent's decision. He argued that the decision was reached in a manner that contravened the applicable principles of procedural fairness. He stated the ICMP was not done and the Respondent rendered his decision without sufficient or accurate information. The ERC found that the Respondent's decision was clearly unreasonable. The ERC finding arose from their interpretation that the harassment policy requires a decision-maker to mandate an investigation when informal resolution is not possible and that there was insufficient information to support the Respondent's finding. Consequently, the ERC recommended a harassment investigation be mandated for the Appellant's complaint.

In accordance with paragraph 47(1)(b) of the Commissioner's Standing Orders (Grievances and Appeals), the final level Adjudicator allowed the appeal, finding that the Respondent's decision was clearly unreasonable and issued an apology to the Appellant.