NC-140 - Harassment

The Appellant encountered various issues with colleagues and management, such as workplace disputes and disagreements over the contents of a Mandate Letter concerning possible breaches by the Appellant of the Code of Conduct. He informed the Assistant Commissioner (Alleged Harasser) of these issues, but was not satisfied with the measures taken. In particular, he was of the view that the Alleged Harasser failed to provide him with a harassment-free work environment. The Appellant eventually filed a harassment complaint (Complaint) against the Alleged Harasser in which he listed seven allegations. Upon reviewing the Complaint, the Respondent found that it was not necessary to order an investigation into the matter because the alleged behaviours did not meet the definition of harassment set out in policy. The Appellant appealed the Respondent’s decision. The grounds of appeal can be summarized as follows:

    1.   The Respondent was biased because she took nine months to render the decision, or alternatively, this delay                        resulted in an abuse of process;

    2.   There was no institutional independence because the Respondent was a [X] commander like the Alleged Harasser; and

    3.   The Respondent erred in failing to investigate the Complaint.

Throughout the appeal process, the Appellant requested the disclosure of various documents. The Appellant’s requests became a source of contention between him and the Respondent, as well as the Office for the Coordination of Grievances and Appeals (OCGA) and two decisions were rendered by an Adjudicator as a result. Following receipt of these decisions, the Appellant took the position that the Respondent failed to comply with the Adjudicator’s directions. Consequently, he refused to continue to participate in the appeal process.  

First, with respect to the collateral issue of disclosure, the ERC found that the Adjudicator’s directions appropriately found that the Respondent had followed his direction. Ultimately, the ERC was not convinced that the documents being requested are all relevant. Therefore the Appellant had not demonstrated that the Respondent failed to comply with his disclosure obligations.

With respect to the merits of the case, the ERC found that a reasonable person would not conclude that a nine-month delay was demonstrative of partiality in favour of the Alleged Harasser, on a balance of probabilities, and that it is important to keep in mind that the Decision was rendered within the timeframe allowed for in the National Guidebook – Investigation and Resolution of Harassment Complaints Guidebook. With respect to abuse of process, the Appellant has not attempted to develop any submissions to establish prejudice on a factual basis. Therefore the ERC found that the argument for an abuse of process cannot succeed.

The ERC also found that while the Appellant asserted that the situation amounts to a lack of institutional independence based on a chain of command, he failed to develop this argument via written submissions. Without anything more, the merits of the Appellant’s argument could not be assessed. Therefore, the Appellant has not established a breach of procedural fairness resulting from a lack of institutional independence.

Finally, the ERC considered each of the seven allegations in the Complaint and found that while the Respondent had sufficient information to come to a conclusion on four of the allegations, three of them warranted additional fact-finding exercises before a decision could be reached. The Appellant should have been permitted to fully describe, and provide further details in support of his Complaint. The Respondent’s omission in obtaining this information resulted in her making a decision based on insufficient information.

The ERC recommends that the Commissioner allow the appeal.