C-015 - Conduct Authority Decision 

During the period relevant to this appeal, the Appellant served at an isolated post in a two-member detachment. The detachment commander prepared and posted a detachment schedule that included himself and the Appellant working six days on and three days off. To cover a member on short term leave, the other member worked his shift, then placed himself on-call and was compensated through an “Immediate Operational Readiness” allowance.

In late 2014 and early 2015, the Appellant was spoken to multiple times about the importance of adhering to and, obtaining the proper approval to modify, shift schedules. During the last meeting, the Appellant received a Negative Performance Log 1004 for not properly adhering to a shift schedule.

Subsequently, on April 24, 2015, the Appellant left a shift early, without prior approval, to take his pregnant spouse to the hospital after she believed her water broke. Three days later, on April 27, 2015, the Appellant failed to attend a scheduled shift, without prior approval, because a contractor showed up at his home unannounced to perform long-required work and the contractor needed help which the Appellant’s spouse was unable to provide.

Two allegations of failing to remain on duty were brought against the Appellant. A Code of Conduct investigation regarding the actions of the Appellant set forth above was initiated by the Respondent on April 28, 2015. After having reviewed the Investigation Report and the information provided to him by the Appellant at the conduct meeting, the Respondent found that the Allegations were established.

The Appellant appealed both the finding on the allegations and the conduct measures imposed. He submitted the allegations were unfounded, that the Respondent was biased and disputed one of the aggravating factors cited.

The ERC found that in order to establish the allegations, the Respondent had to find, on a balance of probabilities, that the Appellant was scheduled to work, did not attend his shift as scheduled and was not authorized to do so. There was no requirement to find that the Appellant’s actions were disgraceful or brought discredit on the RCMP. Thus, it found that the Respondent correctly stated that the allegations were brought under section 4.1 of the RCMP Code of Conduct and correctly identified and weighed the evidence in the record relevant to the allegations.

The ERC also found that the presentation to the Appellant of a completed decision at the Conduct Meeting gave rise to a reasonable apprehension of bias on the part of the Respondent. It found that an informed person, understanding the role of the conduct meeting and viewing the matter realistically, would conclude there is a likelihood of bias; that the Respondent had already made up his mind, both as to the establishment of the Allegations and the imposition of conduct measures, prior to hearing the Appellant’s submissions at the Conduct Meeting. The ERC also found that, contrary to the Appellant’s assertion, the RCMP Act and the Conduct Policy establish a legislative scheme that clearly provides for a conduct authority to first determine whether an investigation is warranted, and order any required investigation, and to, subsequently, render a decision on the allegation(s).

Lastly, the ERC found that the issues identified with the Appellant’s notebook as an aggravating factor were not relevant to the Allegations of not remaining on shift and not reporting for shift, in each case without prior approval.

The ERC recommended that the Commissioner, pursuant to paragraph 45.16(2)(b) of the RCMP Act, allow the Appellant’s appeal and make the finding that, in the Commissioner’s opinion, the Respondent should have made. The ERC was of the opinion that the evidence in the record established Allegations 1 and 2 on a balance of probabilities. It was clear that the Appellant did not complete his shift on April 24, 2015 and that he did not report for work on April 27, 2015. In neither case did the Appellant seek prior approval for his absences nor did he otherwise notify the detachment commander.

The ERC also recommended to the Commissioner that, pursuant to paragraph 45.16(3)(b) of the RCMP Act, he allow the appeal of the conduct measures imposed by the Respondent in respect of Allegation 2 and impose new conduct measures.

The Commissioner, or a delegate, has rendered his decision in this matter, as summarized by his office:

The Appellant is a senior constable working at an isolated three-member detachment, which – at the time – operated with only two members. The Appellant, along with the detachment commander, worked a shift rotation which was posted. When one of the members was unavailable to work – such as during periods of leave – the remaining member would maintain the ability to respond to calls for service by working his own shifts and then going on-call and was compensated by receiving an Operational Readiness allowance.

Between November 2014 and February 2015, the Appellant was directed – on three occasions – to adhere to the shift schedule and to obtain approval before modifying a shift. On the third occasion, the Appellant was provided operational guidance – documented on a form 1004 performance log – for failing to adhere to the posted shift schedule.

On April 24, 2015, without prior approval, the Appellant left his shift early to take his pregnant spouse to the hospital. On April 27, 2015, without prior approval, the Appellant did not attend his shift because he was tired from helping a contractor work on his RCMP owned residence earlier that day.

The detachment commander attended the detachment on April 27, 2015, and noticed that the Appellant was scheduled to work but was not on duty. The Respondent initiated a Code of Conduct investigation into whether the Appellant had:

• (Allegation 1) left his scheduled shift early on April 24, 2015, without seeking prior approval from his commander, contrary to s. 4.1 of the Code of Conduct; and
• (Allegation 2) failed report for duty for his scheduled shift on April 27, 2015, without seeking prior approval from his commander, contrary to s. 4.1 of the Code of Conduct.

During the Conduct Meeting the Respondent presented his decision – written prior to the Conduct Meeting – to the Appellant. The Respondent found that the allegations were established and imposed conduct measures as a result of that finding. The Respondent’s findings and the conduct measures he imposed were appealed.

The Royal Canadian Mounted Police External Review Committee (ERC) reviewed this Appeal and provided recommendations pursuant to s. 45.15 of the RCMP Act. The Conduct Appeal Adjudicator followed the ERC’s recommendations in relation to the Respondent’s findings and partially adhered to the ERC’s recommendations relating to conduct measures.

The Conduct Appeal Adjudicator allowed the appeal due to a breach of procedural fairness – the Respondent’s findings and conduct measures were determined prior to hearing submissions from the Appellant. The Conduct Appeal Adjudicator then made the finding and imposed the conduct measures he believed the Respondent should have made/imposed.

The Conduct Appeal Adjudicator found both allegations were established. The Conduct Appeal Adjudicator imposed the following conduct measures: a reprimand; direction to review specified RCMP policy relating to shift schedules; direction to work under close supervision for one year; direction that Appellant will be ineligible for promotion for one year; financial penalty of 16 hours of pay.