NC-103 - Harassment

The Appellant presented a harassment complaint (Complaint) against the Deputy Commissioner of her Division, the Alleged Harasser, in October 2017, approximately 19 months after the last alleged incident of harassment. The Complaint contained numerous allegations, including that the Alleged Harasser had failed to provide a safe work environment free from harassment and discrimination. Other allegations included that the Alleged Harasser was responsible for the persons under his employ and that the selection process completed by the Chief Human Resources Officer was biased against the Appellant. 

The Respondent rendered a Decision finding that the Appellant was out of time to file the Complaint as she had not provided sufficient reasons for him to extend the timeline to file. 

The Appellant appealed the Respondent’s Decision. The Appellant submits that the Respondent was biased against her, and there was a breach of procedural fairness as she was not asked to provide further submissions related to her extenuating circumstances. The Appellant further alleged that the Respondent failed to properly consider the “discoverability principle” and the decision was unreasonable. 

The ERC found that the Respondent was not biased against the Appellant. The ERC further found that the Appellant’s right to procedural fairness was satisfied because she was provided sufficient opportunity to make submissions on extenuating circumstances. The ERC also found that the Appellant had failed to explain why she waited to file the Complaint until after she received decisions in another administrative process. The ERC further found that while the Respondent had cited the proper policy for the consideration of extenuating circumstances, his reasons were insufficient to explain his findings and were therefore clearly unreasonable.  

The ERC recommended that the Commissioner allow the appeal and remit the matter to a new decision-maker to render a new decision on whether the Appellant has demonstrated extenuating circumstances to extend the timeline for filing the Complaint.  

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

The Appellant, a civilian member, successfully grieved several decisions regarding her transfer to [Location A] arising from the closure of [Location B] where she worked as a specialist, and the eventual discharge ordered by the Commanding Officer, "X" Division (Alleged Harasser) on September 19, 2014, after she failed to report for duty at [Location A] on February 20, 2014. The Appellant claimed that the grievance decisions, all issued on December 21, 2016, demonstrate harassment on the part of the Alleged Harasser because the Level I Adjudicator found prima facie discrimination on the basis of family status and directed the duty to accommodate process (DTA) to be completed. After the DTA process did not result in a mutually agreeable outcome, the Appellant filed a harassment complaint on October 24, 2017, contending that the Alleged Harasser had failed to provide a work environment free from harassment or discrimination; that he had been responsible for the actions of other persons under his employ; and, that the selection process for a new position she applied to was biased.

The Deputy Commissioner, Federal Policing (Respondent), as the designated harassment decision-maker, conclude the harassment complaint process because the Appellant had failed to file her complaint within the one-year time limit prescribed by the Commissioner’s Standing Orders (Investigation and Resolution of Harassment Complaint) and she had not demonstrated exceptional circumstances that would justify granting a retroactive extension.

The Appellant appealed the Respondent’s decision, claiming that there were breaches of procedural fairness and that the decision was clearly unreasonable. The appeal was subsequently referred to the ERC. The ERC determined that there were no breaches of procedural fairness but found that the Respondent’s reasons were insufficient with respect to whether the Appellant’s circumstances could justify a time extension, and therefore were clearly unreasonable. The ERC recommended that the appeal be allowed.

After examining the facts, statutory provisions, applicable policy, and relevant jurisprudence, the Adjudicator disagreed with the ERC recommendation and dismissed the appeal.