NC-147 - Harassment

The Appellant felt forced by the Alleged Harasser to attend an informal resolution meeting with the Alleged Harasser and two of the Appellant’s other supervisors, including his direct supervisor. The purpose of the meeting stemmed from ongoing issues the Appellant was having with his direct supervisor. The Appellant claimed that the Alleged Harasser used profanity, and made demeaning, and belittling comments at the meeting. The Appellant alleged that this caused him personal humiliation and embarrassment. He lodged a harassment complaint (Complaint) relating to those events.

The Respondent found that the Complaint did not meet the definition of harassment, and an investigation was unnecessary. The Respondent found that the Alleged Harasser was not intentionally taking sides and favouring the Appellant’s direct supervisor during the meeting. Rather, the Alleged Harasser was genuinely attempting to resolve the issues. The Respondent also found that while the Alleged Harasser used profanity at the meeting, which was not acceptable for a senior non-commissioned officer in the workplace, it did not constitute harassment.

The Appellant appealed the Respondent’s Decision. He submitted that the Respondent’s Decision contained an error of law. The Appellant believed that the Respondent failed to apply the required reasonable person test to the incidents raised in the Complaint, and incorrectly considered the Alleged Harasser’s intent. 

The ERC found that the appeal should be allowed because the Decision contains an error of law.

The ERC found that the Respondent did not apply the reasonable person test for harassment, and mistakenly considered the Alleged Harasser’s intent. The reasonable person test required the Respondent to consider the perspective of a reasonable person when examining the relevant series of events. The Respondent’s consideration of the Alleged Harasser’s intent was a misapplication of the harassment test.

The ERC further observed that the Appellant was not provided with an opportunity to respond to the Alleged Harasser’s reply to the Complaint, which violated a fundamental principle of procedural fairness.

The ERC recommends that the appeal be allowed, and the matter be remitted to a new decision-maker with the following directions for rendering a new decision:

       o   the decision-maker apply the reasonable person test for harassment in reconsidering the evidence in the record                 relating to the harassment allegation; and

        o   the Appellant be provided with an opportunity to respond to the Alleged Harasser’s reply before a new decision                 is rendered.