NC-104 - Harassment

The Appellant presented a harassment complaint (Complaint) against the Chief Human Resources Officer, the Alleged Harasser. 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 he engaged in a biased personnel selection made against the Appellant. 

The Respondent rendered a Decision finding that the Complaint was not established. In his view, the Alleged Harasser’s actions did not amount to harassment but were actions within the scope of his duties. The Respondent found that the alleged conduct was not directed at the Appellant. The Respondent further found that the conduct was not improper or offensive conduct, meant to demean, belittle, or cause personal humiliation or embarrassment to the Appellant. Finally, the Respondent found that looking at the allegations as a whole, they did not meet the test for harassment.

The Appellant appealed the Respondent’s Decision on several grounds. The Appellant argued that the Respondent was biased against her. The Appellant also believed that the Respondent could not conclude that harassment had not occurred because the Appellant’s past grievances succeeded in demonstrating discrimination on the same facts. Finally, the Appellant asserted that the Respondent’s decision was clearly unreasonable.

The ERC found that the Respondent was not biased against the Appellant. The ERC further found that the Respondent was not subject to issue estoppel from grievance decisions in determining whether the alleged conduct was harassment. The ERC found that while the Respondent had cited the proper test for harassment, 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 and to mandate an investigation into the conduct alleged by the Appellant. 

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 Former Chief Human Resources Officer (CHRO) (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, determined that the harassment complaint was not established after finding that the impugned actions fell within the normal scope of management responsibilities, and that the conduct was not improper of offensive conduct, meant to demean, belittle, or cause personal humiliation or embarrassment to the appellant. Accordingly, the Respondent determined that the allegations, considered individually and as a whole, did not meet the test for harassment, and described the complaint as frivolous.   

The Appellant appealed the Respondent’s decision, claiming that there were breaches of procedural fairness; that the Respondent was estopped from making his own finding as to whether harassment occurred; and, that the decision was clearly unreasonable. The appeal was subsequently referred to the ERC. The ERC found that there were no breaches of procedural fairness and that the Respondent was not subject to issue estoppel. Nevertheless, the ERC found that the Respondent’s reasons were insufficient, thereby rendering them clearly unreasonable. The ERC recommended that the appeal be allowed, an investigation into the complaint undertaken, and a new decision issued.

After examining the facts, statutory provisions, applicable policy, and relevant jurisprudence, the Adjudicator disagreed with the ERC recommendation and dismissed the appeal, finding that the decision was not clearly unreasonable.