NC-166 - Harassment

The Respondent found that the Alleged Harasser had not engaged in harassment towards the Appellant contrary to section 2.1 of the Code of Conduct. The Appellant appealed the Decision and asked that a “fair and thorough” harassment investigation be conducted and that the Alleged Harasser be found to have engaged in harassment.

The Appellant alleges two breaches of procedural fairness, namely that there was an apprehension of bias by the Respondent in favour of the Alleged Harasser and that the harassment investigation was not neutral or thorough. The Appellant argues that the Decision is clearly unreasonable and that the Respondent has committed an error of law. The Appellant submitted additional documents with his appeal submissions. The ERC requested that the Appellant and Respondent provide submissions as to the admissibility of these documents.

The ERC found that the Appellant’s documents should be accepted as the Appellant is alleging they are part of the breaches of procedural fairness.

The ERC found that the Appellant was precluded from raising the issue of procedural fairness related to the harassment investigation as he failed to raise it at the earliest opportunity before the Respondent.

The ERC found that the Appellant established that there is the appearance of a reasonable apprehension of bias by the Respondent.

The ERC further found that the Respondent committed an error of law in the application of the harassment test by placing the onus of proof on the Appellant.  

The ERC recommends that the Commissioner allow the appeal and send the case back for redetermination by a new decision maker.