NC-145 - Harassment

The Appellant filed a harassment complaint against her acting Corporal (Alleged Harasser). She claimed he watched inappropriate videos at work in her presence (Allegation 1), disclosed her personal information (Allegation 2), and mistreated her at a meeting (Allegation 3), among other things. The Respondent ordered an investigation. The investigators interviewed the Appellant and told her they would not investigate Allegation 1 because it had formed part of a Code of Conduct process. The Appellant, who was tearful during the interview, sounded confused by this. The investigators collected documents from the Appellant and someone else. They then concluded the investigation without providing the Appellant with a Preliminary Investigation Report (PIR).

The Respondent dismissed Allegations 2 and 3 (Decision). He found that: there was no prima facie evidence of harassment; the Appellant did not show that the Alleged Harasser had acted improperly; and alleged behaviours were acceptable in the context in which they occurred. The Appellant appealed the Decision. She felt it was reached in a procedurally unfair way and was clearly unreasonable. She took three main positions: the Respondent was biased against her; the Decision wrongly disregarded Allegation 1; and the investigation was otherwise incomplete. 

The ERC 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 a take side. Moreover, contrary to the Appellant’s belief, the Decision said nothing that attacked her integrity.

The ERC went on to find that the complete absence of reasons for side-stepping Allegation 1 in the Decision was procedurally unfair to the Appellant. The Respondent might have been barred from pursuing Allegation 1 in this matter. However, the Appellant was owed written reasons that clearly explained this so she could understand from the Decision why her serious allegation was not addressed during her harassment complaint process. An investigator’s cursory explanation during an interview in which the Appellant was crying, and seemingly confused, was insufficient.

The ERC also found the investigation to be incomplete. The Respondent dismissed Allegation 2 without engaging vital witnesses who could have given “obviously crucial evidence” that clarified whether the Alleged Harasser divulged her personal information. Such alleged behaviour can be harassment. The Appellant also should have received a PIR so she could review and respond to evidence offered by others. These omissions were procedurally unfair. They also deprived the Respondent of sufficiently complete evidence, resulting in a clearly unreasonable Decision.

Given the passage of time, the ERC concluded that the most practical remedy would be to remit the matter to a new decision-maker, with directions for making a new decision that provides findings for Allegation 1, and written reasons for those findings.

The ERC recommends that the appeal be allowed.