NC-222 – Harassment

The Appellant filed a Harassment Complaint (Complaint). At the time, he had been off duty sick with full pay for approximately 16 years. He accused the Alleged Harasser of improperly disclosing his private medical information, and of paving the way for others to try to return him to work in breach of a stay pending the result of a separate, internal process. The Federal Court of Canada would later find that the alleged stay did not stop the RCMP from taking steps to return the Appellant to work.    

The Respondent dismissed the Complaint without calling for a harassment investigation (Decision). She concluded from the Appellant’s evidence that the Alleged Harasser had carried out managerial functions in a legitimate, proper, and respectful manner. In reaching the Decision, the Respondent explicitly relied on an email the Alleged Harasser had sent to RCMP Health Services. The Appellant presented an appeal in which he took several positions. One was that he never received the email.

The ERC concluded that the Appellant was denied procedural fairness. Specifically, the Respondent came to the Decision by relying at least partly on an email that was never disclosed to the Appellant, and that was not in the appeal record. The Appellant had the right to review and respond to any evidence in the Respondent’s possession or knowledge. The email appears to have been relevant to accusations found in the Complaint. Based on its description, it may have included the Appellant’s personal medical information and prompted further, allegedly harassing behaviours.

This omission also may have made the Decision clearly unreasonable. Put simply, the Respondent was seemingly deprived of a chance to consider important input that could have helped her reach a more informed conclusion. Had the Appellant received disclosure of and the opportunity to address the email, then he might have responded with further, clarifying information. This may have led to a harassment investigation. Even if it did not, it could have enabled the Respondent to more fully appreciate the Complaint, and resulted in her dealing with the arguments and evidence differently.

The ERC recommended that the appeal be allowed. It further recommended remitting the case to a new decision maker, with the following instructions:

• provide the previously undisclosed email to both parties and invite them to respond to it in accordance with the relevant authorities and procedures;
• after reviewing any new information obtained, assess if an investigation is needed and order an investigation of the necessary scope if it appears to be both required and viable; and
• in either event, if new information is obtained, make a fresh decision based on the updated Complaint record, and ensure the process is procedurally fair to both parties.

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.