NC-128 - Harassment

In 2016, the Appellant filed a harassment complaint against his detachment commander (Initial Complaint). The allegations in the Initial Complaint were deemed not established. The Appellant then filed a separate harassment complaint (Complaint) against the decision-maker in the Initial Complaint, the Alleged Harasser in this proceeding. The Complaint consisted of four allegations, namely that the Alleged Harasser: became aware that the Appellant was facing harassment and failed to address it (Allegation 1); chose not to recuse himself as decision-maker in the Initial Complaint, even though he was not impartial (Allegation 2); chose to ignore notes that referred to the Appellant as a “terrorist” (Allegation 3); and, made accusations against the Appellant without support and failed to remain impartial (Allegation 4).

The Respondent determined that he had sufficient information to make a decision without mandating an investigation. He dismissed the Complaint, finding that the allegations did not reveal “improper conduct”, one of the criteria required to make a finding of harassment. The Respondent further determined that the appropriate method to address the substance of the Complaint was through an appeal pursuant to the Commissioner’s Standing Orders (Grievances and Appeals).

The Appellant appealed the Decision, asserting that the Respondent should have mandated an investigation. In addition, he believes that the Respondent misstated the context of one of the allegations contained in the Complaint.

Due to personal circumstances outside the Appellant’s control, the appeal was presented two days outside the statutory limitation period. 

The ERC determined that although the appeal was not timely, the Appellant provided a reasonable explanation for the delay, and that there was no prejudice to the Respondent in allowing the extension of time.

The ERC found that the Respondent’s decision to forego an investigation was reasonable because the allegations in the Complaint did not meet the definition of harassment on prima facie basis. In regards to Allegation 1, the ERC found that the proper avenue for the Appellant to address the Alleged Harasser’s inaction was to escalate the issue to his superior. In regards to Allegations 2, 3 and 4, the ERC found that they opposed the Record of Decision issued by the Alleged Harasser in the Initial Complaint and as such, the behaviours alleged should have been challenged by way of an appeal. Finally, the ERC concluded that the wording used by the Respondent to define Allegation 2 was consistent with the context as articulated by the Appellant in the Complaint.

The ERC recommended that the appeal be dismissed.  

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

The Appellant challenged the Respondent’s determination that allegations of harassment he made were not established. The allegations concerned the decision-maker in a prior harassment complaint filed by the Appellant. Those prior allegations were deemed not established by that decision-maker which prompted the Appellant to file a separate harassment complaint eventually leading to these appeal proceedings.

The appeal was referred to the ERC, which found the allegations, on their face, did not meet the definition of harassment and therefore the decision was not clearly unreasonable. The ERC recommended that the appeal be dismissed. The Adjudicator agreed with the ERC and dismissed the appeal.