NC-194 - Harassment

The Appellant was off-duty sick. Shortly before commencing a graduated return to work, he informed the Alleged Harasser that safety equipment had been missing from his locker for some time. The Alleged Harasser, who was to act as the Appellant’s supervisor for the purposes of his graduated return to work, made enquiries over several days while the Appellant searched his home. The missing safety equipment was never found. The Alleged Harasser eventually informed his supervisors and a Code of Conduct investigation was mandated against the Appellant for having lost items and for having failed to report it at the time. In response, the Appellant filed the Complaint against the Alleged Harasser. The Appellant alleged that the Alleged Harasser had not had a desire to meet the commitments of the graduated return to work process. He also alleged that the Alleged Harasser made a derogatory comment about the Appellant to another member after learning that the Appellant had made a complaint against that member. Based on this, the Appellant alleged that the Alleged Harasser breached his privacy and was spreading rumours about him.

On appeal, the Appellant submitted two main grounds of appeal, namely that the Respondent was biased against him and that the Respondent breached the Appellant’s right to be heard.

The ERC found that while the Appellant appears to have some history with the Respondent, and that he may sincerely believe she is biased against him, the applicable test is an objective one and that it has not been met in this case.

The ERC found that the failure to provide the Appellant with an opportunity to respond to the Alleged Harasser’s version of the events amounts to a breach of the Appellant’s right to be heard. The Alleged Harasser’s comments made many factual claims. Among other things, he recounted various steps in the evolution of the issue that led to the Code of Conduct investigation into the Appellant’s actions surrounding the items missing from his locker. These are relevant facts which could have been contested by the Appellant. Moreover, the facts in the second allegation were denied outright by the Alleged Harasser, who claimed he had been entirely unaware of the complaints filed against the other member. It should have been possible for the Appellant to respond to the evidence on which the Decision was made.

The ERC recommends that the Commissioner allow the appeal.