NC-105 - Harassment

The Alleged Harasser was the Appellant’s supervisor.  The two had a difficult working relationship.  They had ongoing issues and different visions for the work unit which ultimately led to conflicts arising from the Appellant’s Performance Evaluation as well as an alleged disguised demotion, among other things.  In 2018, the Appellant filed a harassment complaint (the complaint) against the Alleged Harasser which comprised multiple grounds organized into three main allegations.  Moreover, on an unspecified date, the Appellant filed an additional document which included several additional allegations.  The Alleged Harasser provided a detailed response in which he categorically denied the principle allegations made against him while acknowledging that there was conflict in their working relationship and telling his side of the story. 

The Respondent found that she had enough information to make a decision (the Decision) with respect to the complaint.  Therefore, she did not mandate an investigation.  In fact, she stated that the complaint “is not capable of being resolved through the investigative process” and concluded that the behaviours described “do not constitute harassment as prescribed in the definition of the policy on the Investigation and Resolution of Harassment Complaints”. 

Although the Appellant did not raise this point on appeal, procedural fairness was in play based on the fact that the Respondent had failed to provide the Appellant with an opportunity to reply to the Alleged Harasser’s response to the complaint.  The ERC found that the decision was reached in a procedurally unfair manner on this basis.  The breach of the Appellant’s right to be heard constitutes an irreparable error that cannot be cured on appeal.  In addition, the ERC found that the decision was clearly unreasonable because it omitted to “meaningfully grapple with key issues or central arguments” raised in the additional document.  Despite having clearly been before the Respondent, the decision does not mention at any point the additional document.  It is simply silent about its existence and does not address its contents.  Thus, the Respondent failed to demonstrate that she actually listened to the Appellant and was alert and sensitive to the matter before her.  Finally, the ERC also found that the decision was clearly unreasonable because the Respondent did not have sufficient information to come to a conclusion.  In particular, no witness statements were taken despite a witness list having been outlined in the complaint, and the Appellant himself was not interviewed to gather more information about the longstanding issues.  In this way, the Administration Manual XII.8 was not adhered to by the Respondent during the decision-making process.  Fairness requires that a complainant be able to explain the details of their complaint, for instance through an interview, a statement, or a written document, and to receive an opportunity to respond to an alleged harasser’s reply to their complaint.

The ERC recommended that the appeal be allowed, and that the matter be remitted for a new decision with a direction to order at least a limited investigation into the complaint.  During the investigative process, the Appellant should be permitted to address the Alleged Harasser’s response to the complaint and any other material collected.

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

The Appellant made a harassment complaint against the Alleged Harasser. The Respondent did not mandate an investigation, nor did she seek the Appellant’s rebuttal to the detailed response provided by the Alleged Harasser. The Respondent found that the allegation of harassment was not established.

The Appellant appeals the Respondent’s decision, claiming that it was reached in a manner that contravened the principles of procedural fairness. He advances that an investigation into his allegation is necessary and that some of his allegations were not addressed.

The appeal was referred to the ERC and in a report containing findings and recommendations, the ERC recommends that the appeal be allowed on the basis that the decision was reached in contravention of procedural fairness and that it is clearly unreasonable. The ERC concludes that failure to conduct an investigation or to follow-up on the Alleged Harasser’s response is a breach of procedural fairness, and that the fact that some allegations were not addressed by the Respondent, as well as the fact that an investigation was not conducted, caused the Respondent to deprive herself of important information, resulting in a clearly unreasonable decision. The ERC recommended an investigation be mandated and that the matter be remitted to a new decision-maker.

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. The Adjudicator mandated that the matter be remitted to a new decision-maker and that an investigation be conducted, the scope of which being left at the discretion of the new decision-maker.