NC-142 - Harassment

The Appellant appealed the Respondent’s decision that the Alleged Harasser did not engage in harassment. He argues that the Respondent’s decision was procedurally unfair because the Decision, as it was disclosed to him, was incomplete. He also argues that there was a lack of impartiality on the part of the Investigator. Finally, the Appellant argues that the Decision was clearly unreasonable because the Respondent considered only certain facts in support of her findings on the allegations. 

The ERC found that the Appellant received the disclosure to which he was entitled and that he benefited from a fair investigative process. That being said, the ERC recommends that the appeal be allowed on the basis that the Respondent committed reviewable errors in her assessment of certain alleged behaviours. The ERC noted that the Respondent’s failure to address contradictory evidence provided by the Alleged Harasser amounts to a reviewable error that renders the Decision clearly unreasonable. The ERC also found that the Respondent erred in law because she failed to apply the reasonable person test during her assessment of whether the Alleged Harasser, in inappropriately touching the Appellant’s buttock in the restroom, harassed the Appellant. Instead, the Respondent focused her analysis on the Alleged Harasser’s intention which, in the ERC’s view, constitutes a second reviewable error.

The ERC recommends that the appeal be allowed and that the matter be remitted to a new decision-maker for redetermination.