NC-248 - Harassment

The Appellant alleged that the Alleged Harasser harassed him when he retaliated against him, abused his authority, and failed to protect the Appellant from harassment.

The Respondent found that no investigation was necessary, the Alleged Harasser was acting within the scope of his duties, and that the Alleged Harasser’s actions do not meet the definition of harassment, as it is set out in policy.

On appeal, among other things, the Appellant argued that his procedural right to be heard was breached because he was not provided an opportunity to present evidence and establish the facts of his harassment complaint through a harassment investigation. He argued that the reasons set out in the Respondent’s decision are insufficient, making it clearly unreasonable. In addition, the Appellant argued that the Respondent committed an error of law, when he refused to mandate an investigation.

There Was a Breach of Procedural Fairness

The ERC found that the Appellant established that there was a breach of procedural fairness. The Office for the Coordination of Harassment Complaints (OCHC) was required to ensure that the Appellant had been properly heard before the Respondent made his decision. Procedural fairness required the OCHC to ensure that the Complaint was sufficiently complete, to enable the Respondent to determine an investigational mandate or make a decision as to whether allegations of harassment were established. The record does not demonstrate that the OCHC made any effort to provide the Appellant with an opportunity to include supplemental information following the initial complaint submission.

The Decision Is Clearly Unreasonable

The ERC found that the decision was clearly unreasonable for lack of sufficient reasons. The decision does not demonstrate that the Respondent applied the required tests to determine whether harassment occurred. There was no rational chain of analysis, in the Respondent’s decision, that could reasonably lead the reviewing body from the evidence to the outcome.

The ERC also found that the decision is clearly unreasonable because the Respondent did not have the full story to make a determination on the harassment allegation.

The Respondent Erred in Law

The ERC found that the Respondent erred in law when he failed to apply the evidence before him to the tests he cited. The ERC also found that it cannot be inferred from the Respondent’s decision that he implicitly applied any of those tests in reaching his findings.

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