NC-135 - Harassment

The Respondent found that the Alleged Harasser had not engaged in harassment towards the Appellant contrary to section 2.1 of the Code of Conduct. The Appellant appealed the Decision and asked that the Alleged Harasser be found to have engaged in harassment.

The Appellant submitted late submissions and the Respondent requested to reply to alleged misstatements of fact by the Appellant, if the late submissions were accepted. The Recourse Appeals and Review Adjudicator accepted the late submissions and allowed the Respondent to provide a reply on the alleged misstatements of fact. The Respondent alleges the acceptance of the late submissions was done arbitrarily and the Appellant’s late submissions should not be accepted. The Appellant provided additional submissions in his response to the Respondent’s reply submissions. The Appellant alleges an apprehension of bias by the Respondent in favour of the Alleged Harasser. The Appellant further alleges that the Respondent misapplied the test for harassment. 

The ERC found that the Appellant’s late submissions should be accepted. The ERC observed that even without the late submissions, the outcome of the appeal would be the same because the determinative issue was raised in the appeal form. The ERC found that the additional arguments provided by the Appellant in the reply to the Respondent’s submissions should not be allowed as they were outside the scope of the Respondent’s submissions.

The ERC found that the Appellant failed to provide sufficient evidence to support his argument regarding the reasonable apprehension of bias.

The ERC found that the Respondent did not properly apply the reasonable person standard of the harassment test to the allegations. 

The ERC recommends that the Commissioner allow the appeal for the misapplication of the harassment test and send the case back for redetermination by a new decision-maker.