NC-062 - Harassment

The Appellant filed a harassment complaint against a supervisor (Alleged Harasser). The Appellant made an allegation of harassment due to a document he received as a result of a disclosure process in a grievance he had filed. In the document, the Alleged Harasser wrote that the Appellant lacked morals and ethics.

The Office of the Coordination of Harassment Complaints (OCHC) recommended either a limited investigation or no investigation.

The Respondent decided not to conduct a Code of Conduct investigation into the harassment complaint on the basis that he/she determined that the definition of harassment had not been met because the document was not "directed" at the Appellant. Further, the Respondent was of the view that it was a single event which did not have a long-lasting detrimental effect on the Appellant.

The ERC found that the Respondent's Decision was clearly unreasonable. The Respondent erred in her interpretation of the harassment definition. The ERC found that "directed at" does not mean that a comment must be received by the complainant. As mentioned by the National Guidebook on the Investigation and Resolution of Harassment, spreading rumours or making rude or offensive comments to another about the Appellant can still be 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 OCHC.

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

The Appellant applied for a lateral position and was denied on two occasions. He grieved the non-selection and in the course of receiving access to relevant information, he learned of an email that the Non-Commissioned Officer in Charge (the Alleged Harasser) wrote in September 2016. The email provided rationale to senior management and Career Development and Resourcing as to why the Appellant was not a suitable candidate within her unit. Based on the content of that email, the Appellant lodged a harassment complaint in August 2017.

A Harassment Reviewer from the Office for the Coordination of Harassment Complaints (OCHC) reviewed the matter and recommended the Respondent mandate a limited investigation or render a decision without an investigation, if satisfied there is sufficient evidence to make a finding. The Respondent subsequently issued a Record of Decision (ROD) finding there was sufficient information without mandating an investigation to determine the Alleged Harasser's behaviour did not meet the definition of harassment. She found the content of the email was not directed at the Appellant and it was a single isolated incident.

The Appellant presented this appeal stating the Respondent's decision was based on an error of law and clearly unreasonable. He argued that the Alleged Harasser's comments did not need to be made to him in order for them to be "directed at" him. Further, he stated the single incident was severe and had long lasting effects on him professionally and personally. He claims after two years, he still has not been placed into a permanent position. He attributes this to the comments in the email.

The ERC agreed with the Appellant and found that the Respondent's decision was clearly unreasonable. The ERC found the comments did not need to be received by the Appellant, only "aimed" at him to fit the "directed at" criteria. Further, they found an investigation would have had to take place to establish that this was in fact a single isolated incident. Moreover, ERC found that the harassment policy requires a decision-maker to mandate an investigation when informal resolution is not possible. 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. The Adjudicator apologized on behalf of the Force.