NC-173 - Harassment

The Appellant filed a harassment complaint (Complaint) against her supervisor (Alleged Harasser). The Complaint alleged that in respect of the Appellant, the Alleged Harasser: (i) failed to authorize her overtime, (ii) failed to approve her leave, (iii) caused her to lose a developmental opportunity, (iv) improperly supervised her, and (v) unfairly issued her a Performance Log (1004).

Following an investigation, the Respondent dismissed the Appellant’s Complaint finding that the allegations did not reveal “improper conduct”, one of the criteria required to make a finding of harassment (Decision).

On appeal, the Appellant argued that the Decision was reached in a procedurally unfair manner, was based on errors of law and was clearly unreasonable. 

The ERC found that the appeal should be allowed.

First, the ERC found that the decision making process was procedurally unfair. This was because the circumstances and timing of the issuance of the Decision gave rise to a reasonable apprehension of bias. More specifically, the Respondent created a perception of predetermination by issuing the Decision on the same day she received an extensive (519 pages and 10 hours of audio recordings) Final Investigation Report (FIR). The circumstances revealed that the Respondent was not in a position to have engaged in preparatory work prior to receiving the FIR. As a result, the ERC found that an informed person would be unable to reconcile the Decision being completed on the same day the decision maker received such an extensive record.

Second, the ERC found that the Respondent erred in law by failing to consider the allegations in the Complaint as a series or pattern, which is fundamental to the determination of whether harassment occurred.

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