NC-071 - Harassment

The Appellant and a manager, the Alleged Harasser, were involved in a project. The Appellant felt that the Alleged Harasser had failed to provide the Appellant with information required to properly perform his duties. The Appellant was eventually removed from the project, and he felt that the Alleged Harasser's actions had caused him stress, frustration and embarrassment. The Appellant filed a harassment complaint (Complaint). On his Complaint Form, the Appellant provided some information regarding certain allegations, but the Complaint Form was not a complete account of the Appellant's concerns, as it generally referred to "ongoing incidents" and the Alleged Harasser "repeatedly ignoring requests and emails for information" without providing specific details regarding alleged occurrences. The Alleged Harasser provided a detailed written response to the Complaint, and was interviewed. The Respondent did not mandate an investigation into the Complaint. The Respondent concluded that there was sufficient information to find that the incidents raised by the Appellant did not constitute harassment.

The Appellant appealed the Respondent's decision. He expressed a concern that only the Alleged Harasser had been interviewed, and that he had not been able to respond to the Alleged Harasser's version of events. He argued that an investigation into his Complaint would have allowed the Respondent to have a more complete understanding of events that had taken place.

The ERC acknowledged that there may be limited cases where an investigation is unnecessary, when sufficient information is before a decision-maker. However, where a decision-maker decides a harassment complaint in the absence of a mandated investigation, because they are of the view that there is sufficient information before them, the process must be fair. A complainant must have the opportunity to fully explain their side of the case before a decision is rendered, and they must be able to reply to the alleged harasser's version of events. The Appellant's inability in this case to offer this perspective through an interview or a statement, and his inability to reply to the Alleged Harasser's detailed version of events, resulted in a process that was procedurally unfair. The ERC also found that the Respondent's decision not to mandate an investigation was clearly unreasonable, as the limited evidence available to the Respondent did not provide a full story of what had occurred. At least two additional witnesses, and documentary evidence alluded to by both parties, may have allowed the Respondent to more meaningfully assess the Appellant's allegations of harassment.

The ERC recommended that the appeal be allowed and that the matter be remitted for a new decision to another decision-maker with a direction to mandate an investigation into the Appellant's Complaint.

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

The Appellant lodged a harassment complaint against the Manager of "X" Division, alleging that he harassed him by withholding required information for project completion, rendering him unable to complete it by the deadline date, which led to the Appellant's removal from the project.

The Respondent reviewed the harassment complaint, a follow-up email from the Appellant, and the notes of the Harassment Advisors/Investigators, which purported to reflect the response of the Alleged Harasser. Without the Appellant having an opportunity to rebut the Alleged Harasser's response, the Respondent determined that an investigation was not required, that there was sufficient information to determine harassment was not established, and that the Alleged Harasser was acting within the scope of his duties.

The Appellant presented an appeal disputing the Respondent's decision on the ground that it was clearly unreasonable. The ERC found the process of proceeding to a decision without further inquiries was procedurally unfair and by omitting to mandate an investigation in the absence of sufficient evidence, the Respondent made a manifest and determinative error, rendering the decision clearly unreasonable.

The Adjudicator agreed and, in accordance with paragraph 47(1)(b)(i) of the Commissioner's Standing Orders (Grievances and Appeals), allowed the appeal, finding that the Respondent's decision was reached in a manner which contravened the principles of procedural fairness and is clearly unreasonable. The harassment complaint was remitted back to a new decision-maker with a direction that an investigation be completed and a new decision be rendered.