NC-086 - Harassment

The Appellant filed a harassment complaint with the Office for the Coordination of Harassment Complaints (OCHC). In the complaint, the Appellant alleged that she was harassed by her supervisor (Alleged Harasser) who allegedly made comments and enquiries regarding her work accommodation, went to her residence without being invited, did not approve her training request and made a false statement on a performance evaluation and participated in other related incidents.

On appeal, the Appellant alleges that there was a conflict of interest between one of the investigators and the Alleged Harasser and that the selection of the investigators was not representative of the parties involved. Moreover, she alleges that the investigators did not address inconsistencies in the evidence, that she was not given an opportunity to respond to the Alleged Harasser's statements and that they were not translated into English. The Appellant also submits that policies and guidelines pertaining to the harassment investigation and resolution process were not followed and that the Respondent's reasons were insufficient to support his decision adequately.

The ERC found that there was a breach of procedural fairness in that the Appellant never received a written decision from the Respondent with respect to her objection to the appointment of the investigators. Further, the full version of events of one witness was not obtained, and a full account of the interviews of all witnesses was not provided to the Appellant. The ERC further found that the Respondent's decision was clearly unreasonable due to a lack of reasons. In this regard, the ERC concluded that the Respondent omitted to properly consider whether the incidents as a whole revealed a pattern of harassment and that he misapplied the test to determine whether harassment had occurred.

The ERC recommended that the appeal be allowed and that the matter be remitted to a different decision-maker for a new decision. The ERC also recommended that a direction be issued to conduct an interview of the witness that was not questioned and to re-interview the witnesses whose interview recordings cannot be found. The new decision-maker should also be directed to ensure that any conflicting evidence is appropriately addressed and that the outcome of the decision is carefully explained.

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

The Appellant appeals the Respondent’s decision finding that the allegations of harassment made by the former against the Alleged Harasser were not established.

In 2007, the Appellant began to work from home as an accommodation to her medical condition. In 2011, the Alleged Harasser became the Appellant’s supervisor. According to the Appellant, the Alleged Harasser took exception to her medical accommodation. The Appellant alleged that a series of events, including refusal of training and leave, constituted harassment. The events culminated with a visit from the Alleged Harasser to the Appellant’s home, unannounced and when she was no longer the Appellant’s supervisor. The Appellant filed a Harassment Complaint. Following a Final Investigation Report, the Respondent issued a Record of Decision where he determined that harassment was not established.

The Appellant filed a Statement of Appeal, claiming the decision is clearly unreasonable. She contended that there were a series procedural fairness breaches due to the nature of the investigation and the time it took to process the matter. She also opined that the Respondent misapplied the reasonable person test for harassment and incorrectly considered the Alleged Harasser’s intent. Finally, she submitted that the Respondent’s decision lacked sufficient reasoning to support his decision.

The appeal was referred to the RCMP External Review Committee (ERC) and in a Report containing Findings and Recommendations, the ERC recommended that the appeal be allowed on the grounds that the decision is clearly unreasonable since the Respondent breached the Appellant’s right to procedural fairness, did not apply the reasonable person test, incorrectly considered intent, and provided insufficient reasons. The ERC recommended the matter be remitted to a new decision maker for a new consideration, including additional interviews.

Having considered the facts of the matter, the applicable statutory provisions, and the relevant jurisprudence, the Adjudicator concurred with the findings of the ERC and allowed the appeal. However, due to the time elapsed, continuation of the administrative process was deemed futile, considering that if the harassment allegation was eventually established, the conduct process could no longer be invoked against the Alleged Harasser. The Adjudicator issued an apology to the Appellant without further direction.