NC-163 - Harassment

The Appellant was accused by female co-workers of inappropriate touching which led to the initiation of Code of Conduct proceedings against the Appellant. The process was ultimately stayed by a Conduct Board on the basis that the Appellant’s procedural rights had been breached.

The Appellant filed a harassment complaint (Complaint) against the Conduct Authority (Alleged Harasser) for having initiated a Code of Conduct process against him, among other things. The Complaint was handled by the Respondent who determined that it was unnecessary to mandate an investigation in order to find that harassment was not established. 

The Appellant appealed the Respondent’s Decision. He argued that his procedural rights were breached on the basis that the Respondent was biased because the Alleged Harasser was his superior. Moreover, he argued that the Decision was clearly unreasonable because no investigation was mandated, the Respondent failed to provide sufficient reasons and the Respondent was incompetent. 

First, the ERC found that the Respondent was properly designated to act as decision-maker for the purposes of the Complaint and that his status as the Alleged Harasser’s subordinate was not sufficient on its own to reverse the presumption of impartiality.

Second, the ERC determined that the failure to mandate an investigation into the Complaint was not clearly unreasonable because there was sufficient evidence before the Respondent to render findings on the allegations.

Third, on the issue of sufficiency of reasons, the ERC determined that the Respondent failed to provide explanations or reasons for his decision. Aside from indicating that the test for harassment had not been met, the ERC observed that the Respondent’s decision failed to demonstrate a rational or tenable line of analysis supporting this conclusion. On this basis, the ERC found that the Appellant’s right to understand why his Complaint was deemed not established was not adhered to; thereby resulting in a clearly unreasonable decision.

Fourth, the ERC addressed the Appellant’s concerns with respect to the Respondent’s competence by observing that the latter was duly designated by the Commissioner to act as conduct authority for harassment complaints filed by members of “X” Division.

The ERC recommends that the Commissioner allow the appeal.