NC-157 - Harassment

The Appellant was a technical liaison for an operational unit. The Appellant uttered a profanity at the Non-Commissioned Officer (NCO i/c) in charge of the unit. As a result, the Appellant was issued a Performance Log. The Alleged Harasser supervised the NCO i/c and supported the issuance of the Performance Log. The Appellant was subsequently removed from the unit. The Appellant lodged a harassment complaint (Complaint) in relation to three events: the Alleged Harasser’s disrespectful response to certain workplace conflict (Behaviours 1 and 2); the Alleged Harasser’s approach to Performance Logs (Behaviours 3 and 4); and the Alleged Harasser’s role in the Appellant’s removal from the unit (Behaviours 5, 6 and 7).

The Respondent found that the Complaint did not meet the definition of harassment (Decision). For Behaviours 1 and 2, the Respondent found that the workplace conflict had been informally resolved. For Behaviours 3, 4, 5, 6, and 7, the Respondent found that the Alleged Harasser’s actions were not improper or offensive and that he was exercising his managerial authority.

The Appellant appealed the Decision. He submitted that the Decision contained an error of law, as he believed that the Respondent failed to apply the required reasonable person test to the incidents raised in the Complaint. The Appellant further submitted that the Respondent’s reasons were inadequate.

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

The ERC found that the Respondent did not apply the reasonable person test for harassment. The reasonable person test required the Respondent to consider the perspective of a reasonable person when examining the relevant series of events.

The ERC further found that the Decision with respect to Behaviours 1, 2, 4, 6, and 7 is clearly unreasonable. Regarding Behaviours 1 and 2, there is no rational, tenable line of analysis supporting the Respondent’s conclusion to dismiss the behaviours on the basis that they were dealt with through informal resolution. Regarding Behaviours 4 and 6, the Respondent failed to meaningfully grapple with the Appellant’s central argument that the Alleged Harasser exercised his managerial authority in an improper manner. Similarly, for Behaviours 6 and 7, the Respondent failed to meaningfully grapple with the Appellant’s argument that he had been discriminated against based on a perceived disability. 

The ERC recommends that the appeal be allowed, and the matter be remitted to a new decision maker.