NC-156 - Harassment

The Appellant lodged a harassment complaint (Complaint) against his field coach (Alleged Harasser). He accused him of several things, including failing to use the supervision documents appropriately, providing him conflicting feedback, forcing him to conduct illegal and unsafe driving practices, openly discussing his deficiencies in front of other members, participating in the intimidation tactics of other supervisors and creating a hostile and intimidating work climate. The Appellant also maintained that the Alleged Harasser ought to have known that he had a learning disability.

The Respondent dismissed the Complaint finding that the Alleged Harasser’s actions did not amount to harassment. Rather, the Respondent found that the Alleged Harasser’s behaviour had not crossed the line to disrespectful and that he had engaged in legitimate supervisory responsibilities at all times. Finally, the Respondent observed that it would have been difficult for the Alleged Harasser, a police officer, to identify a learning disability as a causal factor for the Appellant’s difficulties. He further observed that the existence of a disability did not preclude management from engaging in legitimate performance management efforts.

The Appellant appealed the Decision arguing that it had been reached in a procedurally unfair manner because the Respondent demonstrated bias by relying solely on his opinion of the Alleged Harasser’s version of events. He also argues that the Respondent erred in law by misapplying the definition of harassment. Finally, the Appellant takes the position that the Decision is clearly unreasonable because the Respondent made factual errors in his analysis on the merits of the allegations, failed to question certain witnesses (insufficiency of the investigation) and did not consider the Appellant’s need for accommodation.

The ERC found that the Respondent did not create a reasonable apprehension of bias and therefore, that the Appellant’s procedural rights were not breached. The ERC also found that the Respondent did not make an error of law and that the Decision is not clearly unreasonable. More specifically, the ERC determined that the Respondent relied on the entirety of the evidence before him when he assessed the merits of the alleged behaviours. He also grappled with the controversial statements provided by the parties and explained why he preferred the Alleged Harasser’s version of events over that of the Appellant’s.

As for the Appellant’s argument regarding the insufficiency of the investigation, the ERC observed that the investigators were not required to interrogate every witness proposed by the Appellant. The ERC further noted that the record contained no compelling evidence from the Appellant to show that the witnesses mentioned in the Complaint would have provided significant or relevant information that could have materially affected the Respondent’s findings. Finally, the ERC found that, besides the general comment that the Respondent failed to consider his need for accommodation, the Appellant had not provided further submissions on this issue. In this regard, the ERC observed that the Respondent did consider the Appellant’s arguments regarding his learning disability and concluded that, even if an employee has a disability, there are performance standards and expectations and supervisors must still be able to provide performance feedback.

The ERC recommends that the appeal be dismissed.