NC-275 - Harassment

The Appellant was involved in a toxic workplace and was the subject of several harassment complaints. In receiving disclosure from other investigations, the Appellant identified information about himself that he felt was either false or should not be included and amounted to a breach of his privacy. The Appellant filed a harassment complaint in response to these alleged improper disclosures and his treatment by the Alleged Harasser. The complaint was originally dismissed without an investigation. There was a successful appeal and the matter was returned for an investigation and decision. The Respondent in the subsequent decision did not find harassment occurred.

The Appellant believed that the Respondent did not properly assess his right to privacy and that the Decision was clearly unreasonable. The Appellant also argued that the investigation fell short in a number of ways and that the decision overall was not correct. 

Preliminary Issues

The Appellant submitted a document containing his arguments which exceeded the 10-page limit but it was corrected to meet the limit within the same day. The ERC found that only the corrected document should be considered.

Along with the Appellant’s arguments there were a number of documents included, which were assessed as new evidence on appeal. The ERC found that the documents were not admissible, However, one document was an explanation of policy and was admitted due to its relationship to the policy which did not need to be assessed as new evidence.

Merits of the Appeal

The ERC assessed the following three elements to determine that the Respondent’s findings regarding the breach of his privacy were not clearly unreasonable:

    (1) the Respondent’s findings did not demonstrate insufficient reasons regarding the application of the Privacy Act;

    (2) the common law principles regarding medical information, presented by the Appellant, did not establish that the Respondent made a clearly unreasonable decision; and,

    (3) the findings of the Respondent related to the Alleged Harasser’s role were not clearly unreasonable in light of the policy and evidence.

The ERC then assessed a number of alleged procedural fairness issues. The ERC found that there was insufficient evidence to establish that the Respondent demonstrated a reasonable apprehension of bias, the investigators missed obviously crucial evidence, or that the Appellant was denied the right to be heard.

Finally, in reviewing the evidence and policy, the ERC noted that it was outside the scope of the review to re-weigh the evidence in order to overturn the findings of the Respondent. 

The ERC recommends that the appeal be dismissed.