NC-297 - Harassment

The Alleged Harasser was the Officer in Charge of the Appellant’s Division and was the Appellant’s supervisor. The Appellant filed a harassment complaint (Complaint) against the Alleged Harasser for her treatment of him after the Alleged Harasser transferred into the Division. The Respondent broke the Complaint into 31 alleged behaviours of harassment. An investigation was mandated, with interviews conducted with the Appellant, Alleged Harasser and one other witness. A couple of months after he filed the Complaint, the Appellant filed additional alleged behaviours, including allegations of reprisal by the Alleged Harasser. 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 Respondent did not separate the parties after the Complaint was filed; the investigation was not thorough; the investigators did not provide the interview recordings to the Appellant prior to his response to the Preliminary Investigation Report; and, the Respondent did not investigate the additional alleged behaviours. Further, he argued that a Harassment Advisor and the investigators did not follow policy. Additionally, the Appellant alleged that the Respondent committed errors of law by not considering the behaviours as a pattern and misapplying the reasonable person test. Finally, the Appellant argued that the Decision was clearly unreasonable because the Respondent did not explain how the Alleged Harasser was acting within her managerial duties; and, ignored evidence. 

The ERC found that the Appellant properly raised his procedural fairness concerns prior to the Decision being made and was not precluded from raising them on appeal. The ERC found that the Respondent did not breach procedural fairness in not immediately separating the parties as there was evidence that there was an attempt to transfer the Appellant, which he refused, and there is no timeline in policy for when a relocation needed to occur by. The ERC found that the Harassment Advisor and investigators complied with policy as there is no evidence to show that the Harassment Advisor was instructing the investigators on their investigation. Further, the ERC found that the investigation was sufficient as the Appellant had not identified any crucial, missing evidence.

The ERC found that the allegations of reprisal have a separate process under the Harassment Policy to the Complaint. However, the ERC found that the Respondent should have investigated or addressed the additional claims of harassment made by the Appellant. This is determinative of the appeal. The ERC went on to address the last remaining argument regarding procedural fairness, as it was pertinent to the recommended remedies.

The ERC found that while the Harassment Advisor had attempted to give the Appellant copies of his own interview recordings prior to the Decision being made, there was a breach of procedural fairness because there was no attempt to provide the Appellant with copies of the Alleged Harasser’s or other witness’ interview recordings. This is also determinative of the appeal.

As the ERC had found there were multiple breaches of procedural fairness, it chose not to consider the alleged errors of law or whether the Decision was clearly unreasonable. 

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