NC-120 - Harassment

The Appellant had been on medical leave for a number of years. While on medical leave, she had filed a number of grievances. She was then medically discharged. Prior to the Appellant’s medical discharge, her Acting Line Officer served her with an order to undergo an Employer Mandated Medical Assessment (EMMA) in order to determine her limitations and restrictions for a return to work. The Appellant subsequently presented a harassment complaint (Complaint) against the Acting Line Officer (Alleged Harasser). 

The Appellant was of the view that the EMMA was ordered by the Alleged Harasser in retaliation for filing Canadian Human Rights Commission (CHRC) complaints and for filing grievances. She was of the view that the EMMA order was unlawful and that the email that the EMMA order was attached to, was threatening in tone. The Appellant did not reply to the Alleged Harasser’s email because she felt that this would lead to further threats and intimidation. She allegedly worked in a hostile work environment in which the Alleged Harasser had allegedly “smeared” her name.

The Respondent, “X” Division, was designated as the decision-maker in this matter because the originally designated decision-maker from “Z” Division, had recused herself further to the Appellant’s request.

An investigation had been initially mandated. Shortly afterwards, the Respondent issued a Decision concluding that the Alleged Harasser’s actions did not amount to harassment and that he did not need to mandate an investigation to determine if the Alleged Harasser had acted within the scope of his duties. The Appellant appealed the Respondent’s Decision.

On appeal, the Appellant alleged that there was a reasonable apprehension of bias because two employees from Division “Z” worked on her Complaint after it was transferred to Division “X”. The Appellant also alleged that the Decision was clearly unreasonable because the Respondent’s reasons were insufficient and the Decision not to order an investigation was procedurally unfair and clearly unreasonable.  

The ERC found that the involvement of two Division “Z” employees in the decision-making process after the Complaint had been referred to Division “X” and the Respondent’s failure to allow the Appellant the opportunity to clarify her Complaint resulted in procedural unfairness to the Appellant. 

The ERC recommends that the appeal be allowed and that the matter be remitted to a different decision-maker, from outside of “Z” and “X” Division, for a new decision. The ERC also recommends that the new decision-maker allow the Appellant to provide supplemental submissions regarding her Complaint through a process that ensures procedural fairness toward the Alleged Harasser. The ERC recommends, further to this, that the new decision-maker assess whether an investigation is necessary or if there is sufficient information to address the Complaint.