NC-290 - Harassment

The Alleged Harasser was in charge of the department in which the Appellant’s unit operated. The Appellant filed a harassment complaint (Complaint) against the Alleged Harasser for his treatment of her after he transferred into the unit. The Complaint had seven alleged behaviours of harassment, which the Respondent broke down into eight alleged behaviours for analysis. An investigation was mandated, with interviews conducted with the Appellant, the Alleged Harasser and questionnaires of four other witnesses. The Respondent concluded that the Alleged Harasser did not engage in harassment toward the Appellant.

The Appellant alleged that there were procedural fairness issues because the investigators used questionnaires for some of the witnesses; the investigation was not thorough; and, the investigators were biased. Further, she argued that the decision was clearly unreasonable because the Respondent ignored evidence and did not conduct credibility assessments or address her claim of discrimination. Finally, the Appellant argued that there was an error of law in how the Respondent applied the harassment test. 

The ERC found that the Appellant was precluded from raising concerns with the investigators using questionnaires because she did not do so at the first opportunity. Further, the ERC found that the investigation was sufficient as the Appellant had not identified any crucial, missing evidence. Additionally, the ERC found that the Appellant had not raised her argument that the investigators were biased at the earliest opportunity and had provided no evidence of the investigators being closed-minded.

The ERC found that the Decision was clearly unreasonable because the Respondent did not address conflicting evidence. Additionally, the ERC found that the Respondent did not explain why repeated findings that the Alleged Harasser should have “used more care” in dealing with the Appellant did not amount to a finding of harassment. 

The ERC found that the Respondent focused on the Alleged Harasser’s intent, which is an error of law under the harassment test, as the proper test is what a reasonable person in the complainant’s position would conclude.

The ERC noted that the Appellant had motioned a claim of discrimination only vaguely and did not identify what the discrimination was allegedly based on; therefore, the Respondent was not obligated to address discrimination in the reasons. 

The ERC recommends that the Commissioner allow the appeal and return it for a redetermination before a new decision-maker.