NC-288 - Harassment

The Appellant worked in a unit managed by the Alleged Harasser. The Appellant submitted a harassment complaint (Complaint) alleging that the Alleged Harasser had behaved inappropriately towards the Appellant in two instances. The Respondent mandated an investigation and a number of witnesses were interviewed. After reviewing a Final Investigation Report, the Respondent delivered a written Decision concluding that the Complaint was not established.

The Appellant appealed the Decision. The Appellant believed that Complaint intake staff and Complaint investigators were in a conflict of interest. The Appellant also asserted that the investigation lacked thoroughness, because investigators interviewed an insufficient number of witnesses and omitted to pursue two specific lines of questioning. The Appellant further believed that the Alleged Harasser’s behaviour had met all the required criteria for a finding of harassment.

The ERC first determined that the Appellant had presented two arguments that were inadmissible on appeal because they could have been, but were not, made before the Respondent. One of those arguments related to the conflict of interest alleged by the Appellant. The other related to a line of questioning that was not put to witnesses.

The ERC then found that the investigation into the Complaint, as it related to the number of witnesses interviewed, was sufficiently thorough. Further, investigators had in fact obtained information from witnesses relating to a line of questioning (separate from the one noted above) that the Appellant believed was insufficiently pursued. There was no breach of procedural fairness owing to an insufficient investigation.

Finally, the ERC explained that in addition to questions of procedural fairness, the applicable appeal framework authorized the ERC to consider whether the Decision made by the Respondent was clearly unreasonable or was based on an error of law. The appeal was not an opportunity for the Appellant to reassert the Complaint’s merits. A number of the Appellant’s arguments on appeal amounted to an explanation of why the Appellant believed harassment had occurred, but the Appellant had not specified how the Respondent’s Decision was clearly unreasonable. Nor had the Appellant raised any error of law on which the Decision may be based. Accordingly, the ERC did not review those arguments, which appeared to be a request to re-evaluate the Complaint afresh solely on its merits.

The ERC recommends that the appeal be dismissed.