NC-146 - Harassment

The Appellant lodged a harassment complaint against a Staff Sergeant (Alleged Harasser). She accused him of misinforming a superior about her sick leave (Allegation 1), and of deceiving and intimidating her into divulging personal information (Allegations 2 to 4). The Respondent ordered an investigation. The investigators interviewed and collected documents from the Appellant. They then ended the investigation without providing her with a Preliminary Investigation Report (PIR).

The Respondent dismissed Allegations 1, 2, 3 and 4 (Decision). He found that: there was no prima facie evidence of harassment; elements of the harassment complaint were unsupported; and some of the allegedly harassing behaviours were sincere and valid managerial functions. 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 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 concluded that the investigation was incomplete. The Respondent dismissed Allegation 1 without hearing from vital witnesses who could have provided “obviously crucial evidence” that clarified whether the Alleged Harasser discredited her by misinforming a superior about her sick leave. Such alleged behaviour could be harassment. The Appellant also should have received a PIR so she could review and respond to the evidence that was before the Respondent, even if it was restricted to her own evidence. If nothing else, she could have seen from the PIR that the investigators had not spoken with the Alleged Harasser or the suggested witnesses, and explained why she believed that it was important to interview those individuals. These omissions were procedurally unfair. They further deprived the Respondent of sufficiently complete evidence, resulting in a clearly unreasonable Decision.

Given the passage of time and the complications that it raises, the ERC concluded that the most practical remedy here would be to have a fresh investigation into Allegations 2 to 4, and to make a new decision in relation to them.

The ERC recommends that the appeal be allowed.