NC-066 - Harassment

The Appellant filed a harassment complaint (Complaint) against the Alleged Harasser, who was his direct supervisor. The Appellant claimed that the latter's change in operational policy and the requirement to be on call while off-duty was adversely affecting his personal and family life. The Respondent directed a limited investigation of the Complaint, as a result of which only the Appellant and Alleged Harasser were interviewed. During the investigation, the Appellant requested that the Respondent recuse himself from deciding the Complaint, particularly in light of indications from the Alleged Harasser that he had previously communicated with the Respondent on issues that had given rise to the Complaint. Before deciding on the Appellant's recusal request, the Respondent obtained clarification from the Alleged Harasser as to the nature of those prior communications. The Appellant was not notified of this clarification. The Respondent, in a written ruling, then decided not to recuse himself. He later rendered a Decision finding that the Complaint was not established.

The Appellant appealed the Respondent's Decision. He argued that the Respondent should have recused himself, and took issue with the manner in which the Respondent had consulted the Alleged Harasser prior to ruling on the recusal issue. As for the Respondent's Decision regarding the Complaint, the Appellant questioned why certain documents identified as potentially relevant by the Respondent had not been obtained in the investigation. He also questioned why an independent witness to one of the incidents alleged in the Complaint had not been interviewed.

The ERC found that, in keeping with principles of procedural fairness, the Respondent was required to provide the Appellant with an opportunity to address any information obtained from the Alleged Harasser which was relevant to the issue of recusal. Because the Appellant had not been given such an opportunity before the Respondent rendered his recusal ruling, his right to be heard had been breached. The ERC also found that in assessing the Complaint, the Respondent had improperly considered that certain documents would hypothetically support the Alleged Harasser's version of events, even though those documents were not before the Respondent. Finally, the limited investigation mandated by the Respondent resulted in a limited ability to assess the Complaint. An independent witness could clearly have provided relevant evidence regarding one of the incidents alleged by the Appellant, and the Respondent's assessment of that incident would likely have benefitted from the witnesses perspective.

Due to a breach of the Appellant's right to be heard, the ERC recommended that the Final Adjudicator allow the appeal and remit the matter to another decision-maker. The ERC also recommended that the decision-maker be directed to assess whether it is possible to obtain, through a supplementary investigation, the version of events of Witness X and any additional evidence to ensure a thorough assessment of the Complaint. The ERC further recommended that the new decision-maker render a new decision which considers any additional information obtained.

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

The Appellant, a member of a small detachment, lodged a harassment complaint against his District Commander (Alleged Harasser) for: implementing a new unsigned policy requiring him to be on call at all times for Operational Readiness (OR), with a police vehicle to be kept at his home during his off hours; for requiring him to work without backup for several consecutive weeks; for making inappropriate remarks when he complained the policy was interfering with his family life; for threatening to close his office if he failed to comply with the request; for bullying him into retracting his initial concerns which was in an email cc'd to other members; and for requiring him to submit a Workplace Accommodation request for time off during his off duty hours and then denying it when he did not provide a list of events. The Appellant claimed discrimination on the grounds of family status.

The Appellant advised the Alleged Harasser, prior to lodging the complaint that the new mandatory OR was against existing policy which specified it was voluntary. The Alleged Harasser, in order to demonstrate the Appellant was incorrect in his interpretation of the policy, liaised with the Respondent and other superiors and referred to an email in which the new mandatory OR policy had been approved by the Respondent.

A harassment reviewer from the Office for the Coordination of Harassment Complaints recommended a limited investigation prior to the decision being made. A limited investigation was mandated and ensued which did not include the statements of witnesses, only the Appellant and the Alleged Harasser. Prior to the Respondent's determination of the complaint, the Appellant requested the Respondent recuse himself as he had supported the Alleged Harasser's interpretation of the new policy, which the Appellant submits was utilized to harass him. The Respondent declined to recuse himself and sent the parties his written decision in a letter, indicating that he had further discussed the matter with the Alleged Harasser relating to his involvement and that his advice was provided on a general basis and not in relation to this particular matter. The Appellant had not been a party to the discussion which took place following the date on which his complaint was lodged and the recusal requested.

The Respondent subsequently issued a Record of Decision and determined that the Alleged Harasser was acting within the scope of his duties and his actions did not meet the definition of harassment.

The Appellant presented an appeal disputing the Respondent's decision, primarily on the grounds that the Respondent was not impartial and the process was procedurally unfair. The ERC agreed, recommended the Adjudicator set aside the Respondent's decision, allow the appeal, remit the matter for a supplementary investigation, and a new decision maker be appointed.

In accordance with subparagraph 47(1)(b)(i) of the Commissioner's Standing Orders (Grievances and Appeals), the Adjudicator accepted the ERC recommendation, allowed the appeal, finding that the Respondent's decision was reached in a manner which contravened the principles of procedural fairness, set aside the Respondent's decision, and remitted the matter for determination by a new decision-maker.