NC-267 - Harassment

The Appellant alleged that the Alleged Harasser engaged in a pattern of bullying, threatening, derogatory comments, and hyper-controlling behaviour to exert dominance over him.

For the majority of the allegations, the Respondent determined that the Alleged Harasser was exercising his managerial responsibilities, and that his conduct did not rise to the level of improper and offensive. The Respondent declined to make determinations, however, where there were no witnesses to the alleged events. Nevertheless, she did make findings on at least one allegation with no witnesses.

On appeal, the Appellant argued that the Respondent did not consider the information that he provided. He further argued that the decision was not based on a balance of probabilities, as he asserted that there was a clear pattern of systemic harassment set out in his complaint. The Appellant also argued that the Respondent gave insufficient consideration to witness statements that supported his allegations. Finally, the Appellant argued that the Respondent made negative inferences concerning his credibility based on the absence of an email that should have been included in the investigation. He submitted that email as new evidence.

The ERC found that the appeal should be allowed because the decision was based on an error of law and was clearly unreasonable.

The ERC found that there was an error of law, because the Respondent failed to consider the allegations collectively, as a series of events, and the cumulative effect on the Appellant.

The ERC also found that the decision was unreasonable, as the Respondent declined to make determinations where there were no witnesses for some allegations, but made such determinations for others. The ERC noted that the Respondent’s responsibility to make determinations is not dependent on whether there were any witnesses to the event(s). Moreover, the decision contains an internal inconsistency that cannot be explained through reference to the record.

The ERC recommends that the appeal be allowed, and that the matter be remitted to a new decision-maker, with the new evidence.