NC-158 - Harassment

The Appellant was a technical liaison in an operational unit that was supervised by the Alleged Harasser. The Appellant did not report to the Alleged Harasser. The Alleged Harasser issued the Appellant a negative Performance Log. The Performance Log identified three incidents in which the Appellant made disrespectful comments to members in the unit. The Appellant disagreed with the Alleged Harasser’s decision to issue him the Performance Log. The following year, the Appellant lodged a harassment complaint pertaining to eight incidents, including the issuance of the Performance Log, in which the Alleged Harasser allegedly disrespected and offended the Appellant during the course of their duties (Complaint).

The Respondent determined that an investigation was not required because the record, which consisted of the Appellant’s harassment complaint form and supporting documentation, was sufficient for her to make a decision with respect to the Complaint. The Respondent dismissed the Complaint. She found that all five elements of the definition of harassment were not present in the alleged behaviours, and that the Alleged Harasser was acting within the scope of his duties (Decision).

The Appellant appealed the Decision. He submitted that the Respondent should have mandated an investigation into the Complaint; that the Respondent erred in law in her application of the harassment test; and that the Respondent failed to consider one of the alleged behaviours in the Complaint. 

The ERC found that the appeal should be allowed. The Respondent’s failure to ensure that an investigation of the Complaint had occurred resulted in a clearly unreasonable Decision. Although the Appellant filed a detailed submission with his Complaint, the Respondent did not have sufficient information to determine whether the alleged behaviours amounted to harassment. In addition to interviewing the Appellant, speaking to the Alleged Harasser would have enabled the Respondent to assess multiple aspects of the Complaint more meaningfully. Other witnesses, named by the Appellant, could also have helped to clarify what happened during the incidents.

The ERC also found that the Respondent erred in law by incorrectly applying the harassment test in two ways.

First, the Respondent improperly applied the reasonable person test by considering the Alleged Harasser’s intent. The Respondent erred by simply concluding that the Alleged Harasser could not have known that his actions would cause offence or harm because he was using the processes available to him as a supervisor. Managerial actions and responsibilities can amount to harassment if those duties were carried out in an improper manner. The Respondent was required to assess whether the Alleged Harasser’s exercise of managerial responsibilities was performed in a legitimate, proper, and respectful manner, from the perspective of a reasonable person with knowledge of the circumstances.

Second, the Respondent failed to consider whether the incidents as a whole revealed a pattern of harassment. The determination of whether harassment has occurred requires that a decision-maker consider all the events in question as a series or pattern.

The ERC further found that the Respondent’s failure to provide any reasons with respect to one of the alleged behaviours was procedurally unfair to the Appellant. 

The ERC recommends that the appeal be allowed, and that the matter be remitted for a new decision with a direction to order an investigation into the Complaint.