NC-144 - Harassment

The Appellant lodged a harassment complaint against a Staff Sergeant (Alleged Harasser). She accused him of several things, including making demeaning remarks (Allegation 1), mishandling her scheduling accommodation (Allegations 2 to 4), discriminating against her based on her sex (Allegation 5), telling a sexist joke in her presence (Allegation 6), and disregarding her concerns about team morale (Allegation 7). The Respondent ordered an investigation, the scope of which he later narrowed. The investigators interviewed and collected documents from the Appellant. They then ended the investigation without giving her a Preliminary Investigation Report (PIR).

The Respondent rejected Allegations 1 through 7 (Decision). He found that: there was no prima facie evidence of harassment; parts of the harassment complaint were unsupported; and certain accusations were ambiguous. In dismissing Allegations 2 to 4, he acknowledged having relied on various documents the Alleged Harasser disclosed in a separate harassment complaint. The Appellant appealed the Decision. She believed it was reached in a procedurally unfair way and was clearly unreasonable. She took three main positions: the Respondent was in a conflict of interest; the Respondent was biased against her; and the investigation was incomplete.

The ERC found that it appeared to be too late for the Appellant to argue that the Respondent held a conflict of interest, given her omission to challenge this perceived procedural unfairness at the earliest possible opportunity.

The ERC also found no evidence that countered the strong presumption of decision-maker neutrality, and that showed a reasonable apprehension of bias. The Appellant believed the background section of the Decision revealed a bias. But that section simply described key events and was based largely on her own evidence. It did not draw a conclusion or take a side. Moreover, contrary to the Appellant’s belief, the Decision said nothing that attacked her integrity.

However, the ERC determined that the investigation was problematic. Seemingly unbeknownst to the Appellant, the Respondent relied on materials the Alleged Harasser provided in another harassment complaint. The Appellant should have received a PIR so she could examine and respond to that and other evidence. Furthermore, the Respondent dismissed Allegation 5 and Allegation 6 without hearing from vital witnesses who could have provided “obviously crucial evidence” that clarified whether the Alleged Harasser engaged in discriminatory behaviour. Such behaviour could be harassment. These omissions were procedurally unfair. They further deprived the Respondent of sufficiently complete evidence, resulting in a clearly unreasonable Decision.

The ERC concluded that a new decision-maker should: oversee a thorough investigation of Allegations 5 and 6; provide the parties with copies of a detailed PIR, and their own statements, for their review and responses; and, after reviewing any new information obtained, consider Allegations 1 through 7 in detail, both on their own and together, and make a new decision.

The ERC recommends that the appeal be allowed.