NC-209 – Harassment

The Appellant appeals the Respondent’s Decision that the Alleged Harasser did not engage in harassment. The Appellant provided new evidence on appeal. He argues that the Respondent was biased and did not properly apply the definition of harassment. 

The ERC found that new evidence submitted by the Appellant for the first time on appeal was not admissible in the appeal because it either could not reasonably be expected to have affected the Respondent’s decision, or could reasonably have been submitted to the Respondent. With respect to the merits of the appeal, the ERC found that the Appellant did not rebut the presumption that the Respondent was impartial, but found that the Respondent erred in law by improperly placing the burden of proof on the Appellant to establish harassment. The ERC further found that there was a breach of procedural fairness because the Appellant’s rebuttal to the preliminary investigation report, including its attachment, was erroneously omitted from the materials that were before the Respondent when he made his decision. The ERC also found that an additional document appears to also have been erroneously omitted from the materials.

The ERC recommends that the appeal be allowed, and the matter, including the omitted materials, be remitted for a new decision.