NC-283 - Harassment

The Appellant filed a harassment complaint (Complaint) against his supervisor (Alleged Harasser) in relation to a selection process. The Appellant alleged that the Alleged Harasser excluded him from the selection process (Alleged Behaviour 1) and later caused the Appellant to be ostracized in his workplace (Alleged Behaviour 2).

Following an investigation, the Respondent issued a Decision, finding that the Complaint was not established. On appeal, the Appellant argued that the investigation into his Complaint was procedurally unfair, and the Decision was clearly unreasonable.

The ERC found that the investigation in relation to Alleged Behaviour 2 was procedurally unfair. More specifically, the ERC determined that the investigators omitted to pursue obviously crucial evidence by overlooking witnesses directly involved in the Appellant’s workplace and the events described in the Complaint. The ERC further found that the insufficient investigation deprived the Respondent of vital evidence, resulting in a clearly unreasonable Decision.

The ERC recommended that the matter be remitted to another decision-maker with a direction to assess the feasibility of supplementary investigation in relation to Alleged Behaviour 2.

The ERC further recommended that (i) both the Alleged Harasser and Appellant be provided with the opportunity to comment on any new information obtained through a supplementary investigation; and (ii) the decision-maker be directed to render a new decision based on the new record.

In the alternative, if supplementary investigation is not feasible, pursuant to paragraph 47(1)(b)(ii) of the Commissioner’s Standing Orders (Grievances and Appeals), the ERC recommends the Final Adjudicator apologize to the Appellant for the insufficient investigation into his Complaint.

The Adjudicator agreed with the ERC Findings and Recommendations and as such, adopted the ERC Findings and Recommendations in their entirety as their reasons for concluding for that this appeal be allowed.