NC-137 - Harassment

The Appellant transferred to an isolated post detachment under the supervision of the Alleged Harasser. From the first meeting between the Appellant and the Alleged Harasser, the Appellant perceived the Alleged Harasser having an issue with her. The Appellant and Alleged Harasser eventually transferred out of that posting. The Appellant waited a number of years to file her harassment complaint, which was allowed to proceed by the Respondent’s predecessor. The complaint was investigated and the Respondent found that the harassment allegations were not established. The Appellant appealed this decision on the basis that the investigators did not complete a thorough and fair investigation.

New Evidence

The Appellant included fresh evidence with her written submission. After the Respondent reviewed the completeness of the record, he argued that the submitted documents should be inadmissible. The ERC found that the Respondent’s submission should be considered even though it was filed after the time limit to review the record, as there was a short delay between the deadline for comments and the submission and there was no demonstrated prejudice to the Appellant.

Several of the documents provided were attempts to challenge the credibility of the Alleged Harasser and one of the witnesses. The ERC did not admit this evidence because it did not meet one of the required elements of the test for fresh evidence. Specifically, the ERC found that the new documents could not reasonably affect the outcome of the Respondent’s decision.

The Appellant also included emails detailing advice the Respondent received in completing the decision. The ERC found that this evidence was admissible because it was provided to support the Appellant’s procedural fairness argument.

Procedural Fairness

The ERC found that the Appellant was denied an opportunity to properly participate in the investigation. In line with previous recommendations, the ERC found that the Appellant was entitled to receive a copy of the witnesses’ statements at the time of the Preliminary Investigation Report. In this matter, the Appellant did not receive this information and her questions about the content of the statement were not answered until the appeal, when she received the statements. This amounted to a denial of the Appellant’s ability to participate in the investigation.

Upon receiving the complete witness statements, the Appellant pointed to a number of failings by the investigators to seek out crucial evidence. The ERC found that in most of the circumstances raised by the Appellant, the investigators did not ignore crucial evidence. However, in one aspect of the complaint, the ERC found that the investigators failed to question a witness about obviously crucial information. 

The ERC recommended that the appeal be allowed. 

The file was withdrawn before a decision was made.