NC-123 - Harassment

The Appellant filed a harassment complaint (Complaint) against a Disability Management Advisor (Alleged Harasser). The Appellant alleged that the Alleged Harasser took advantage of a security clearance interview with the Appellant to obtain information from the Appellant that was later used to suspend her pay and allowances. 

The Appellant submitted a written request that the Respondent recuse himself. The Respondent did not recuse himself nor did he provide the Appellant with written reasons for not recusing himself. 

A “limited 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 into her Complaint. The Appellant appealed the Respondent’s Decision.

On appeal, the Appellant alleged that the Respondent breached her procedural fairness rights when he ignored her request that he recuse himself. The Appellant also alleged that the Respondent’s Decision was procedurally unfair because she was not provided a fair opportunity to be heard. The Appellant alleged that the Decision was clearly unreasonable because the Respondent’s reasons were insufficient. 

The ERC found that the Respondent’s failure to provide written reasons in response to a request for recusal resulted in procedural unfairness to the Appellant. The Respondent’s Decision was reached in a procedurally unfair manner because the Appellant did not have an opportunity to provide information to supplement the Complaint and the Appellant was not given an opportunity to respond to information that was before the Respondent. 

The ERC recommends that the appeal be allowed and that the matter be remitted to a different decision-maker for a new decision. The ERC also recommends that the new decision-maker ensure that the Appellant is given an opportunity to provide supplemental submissions regarding her Complaint and that the Appellant has an opportunity to respond to any documents that are put before the new decision-maker, through a process that ensures procedural fairness towards the Alleged Harasser. Finally, 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.