NC-218 – Harassment

The Appellant filed a harassment complaint (Complaint) against one of her supervisors at the relevant time (Alleged Harasser), in which she outlined several alleged incidents of harassment. She also outlined additional incidents in an attachment to her Complaint. The Office for the Coordination of Harassment Complaints (OCHC) recommended that a harassment investigation be mandated.

The Alleged Harasser provided a response to the Complaint. However, the Appellant was not afforded an opportunity to reply to that response.

The Respondent’s decision (Decision) addressed only some of alleged incidents of harassment. The Respondent found that the Complaint was timely. He declined to mandate an investigation and concluded that the Alleged Harasser’s conduct did not constitute harassment (Decision).

The Appellant filed her Statement of Appeal with the Office for the Coordination of Grievances and Appeals (OCGA), indicating that the Decision was reached in a manner that contravened the applicable principles of procedural fairness, was based on an error of law, and was clearly unreasonable.

During the appeal process, the Appellant received disclosure of various documents in the harassment complaint process. Two adjudicative directions were also issued on the collateral issue of disclosure.

The ERC found that although the Appellant’s submissions on the merits of her appeal complied with the 10-page limit for submissions, the Appellant had seemingly circumvented this limit by setting out additional arguments in a three-page attachment. The ERC found that the content of the attachment largely reiterated the Appellant’s arguments in her submission. The ERC admitted the attachment, but also emphasized the importance of respecting the ten-page limit for appeal submissions.

The ERC considered the admissibility of new evidence on appeal, namely, two attachments provided by the Appellant in support of her submissions. The ERC found that only one of those attachments satisfied the Palmer test.

The ERC found that the Decision was clearly unreasonable, as the Respondent erred by not mandating a harassment investigation. In addition, the ERC found that the Appellant’s right to procedural fairness was breached, as she was not afforded an opportunity to reply to the Alleged Harasser’s response. The ERC also found that the Decision was procedurally unfair as the Respondent appeared to rely on information that was not in the record.

The ERC found that the other grounds of appeal advanced by the Appellant lacked merit. The ERC found that it was not erroneous to notify the Alleged Harasser about the Complaint and provide associated material prior to a decision being made about whether to mandate an investigation. Further, the ERC found that it was not an error to seek a submission from the Alleged Harasser outside of a mandated investigation. In addition, the ERC found that the Appellant had not demonstrated, to the required standard, a reasonable apprehension of bias on the Respondent’s part. The ERC also found that the delay in the Appellant’s receipt of the Decision did not result in any principle of procedural fairness being contravened. Lastly, the ERC found that the Appellant had not demonstrated to the required standard that the Harassment Unit or an individual from that unit was biased against her, nor had she elaborated on her view.

The Appellant also argued that the Respondent failed to consider all information including all alleged behaviours outlined by her, and that the Decision was issued without clarifying information being sought from her. However, the ERC found that it was not necessary to address these remaining arguments, given the ERC’s recommendation that an investigation be mandated.

The ERC recommended that the appeal be allowed on the basis that the Respondent’s Decision was clearly unreasonable and procedurally unfair. The ERC also recommended that the matter be remitted to a new decision-maker, with directions to mandate an informed investigation, afford the Appellant an opportunity to reply to any response by the Alleged Harasser, and issue a new decision based on the resulting investigation report.