NC-223 - Harassment

The Appellant brought a harassment complaint (Complaint) against his Acting Commanding Officer (Alleged Harasser). In his complaint form, the Appellant accused the Alleged Harasser of giving him work that exceeded his medical limitations, making him immediately and humiliatingly vacate an office, and threatening to delay his upcoming transfer. The Appellant named multiple witnesses in the form. There was no record of an investigator contacting either party or any named witness.

After reviewing the complaint form and some related communications, the Respondent decided to dismiss the Complaint (Decision). He concluded that the alleged behaviours did not fall within the definition of “harassment” set forth in the governing Harassment Policy. He further found that there was no need to mandate an investigation. The Appellant presented an appeal. He made several overlapping arguments which essentially raised five central grounds of appeal.  

The ERC found that two grounds of appeal were successful.

First, the Appellant was denied procedural fairness in that he was not properly heard. If a decision-maker decides a harassment complaint without holding an investigation, because they believe there is sufficient information before them, the process must be fair. A complainant must have the chance to fully give their side of the story and respond to an alleged harasser’s side of the story (and any other material before the decision-maker) prior to a final decision. The Appellant was not permitted to clarify or expand on his complaint via an interview or a statement. He also was not permitted to respond to the materials before the Respondent. This all resulted in a procedurally unfair process.

Second, the Decision was clearly unreasonable because it was based on information that was not complete enough to support a rational line of analysis. In addition to consulting with the Appellant, hearing from the Alleged Harasser would have enabled the Respondent to more meaningfully assess important aspects of the Complaint. Moreover, other witnesses and more comprehensive inquiries could have helped shed light on whether certain alleged behaviours were problematic.

The ERC recommends allowing the appeal. It also recommends remitting the matter to a new decision-maker (the Respondent is retired), with a list of directions for making a new decision.