NC-191 - 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 multiple harassment complaints, including one against the Alleged Harasser, relating to the decision to initiate a Code of Conduct process against him. 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 he was a conduct authority in the Division who likely had knowledge of the “malicious” code of conduct process, among other things. Moreover, he argued that the Decision was clearly unreasonable because no investigation was mandated, that the Respondent failed to provide sufficient reasons and he was incompetent. 

First, the ERC found that the test for bias was not established.

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 the Division.

The ERC recommended that the Commissioner allow the appeal.

The Adjudicator agreed with the ERC Findings and Recommendations and as such, adopted the ERC Findings and Recommendations in their entirety as their reasons for concluding for that this appeal be allowed.