NC-131 - 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 her medical discharge, the Appellant filed a harassment complaint (Complaint) against a Health Services Officer regarding his interactions with her.  

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.

After the appeal record was referred to the ERC, on multiple occasions, the Appellant provided new evidence and submissions.  

The ERC found that all the new evidence and submissions provided by the Appellant were inadmissible, with the exception of a letter from the Office of the Privacy Commissioner (OPC). The ERC found that the Respondent’s failure to provide written reasons in response to a request for recusal and 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 for a new decision. The ERC also recommends that the new decision-maker ensure that the Appellant be given an opportunity to provide supplemental submissions regarding her Complaint, through a process that ensures procedural fairness towards 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. Finally, the ERC recommends that the OPC letter submitted by the Appellant form the part of any eventual analysis of the merits of the Complaint by the new decision-maker.