C-039 - Conduct Authority Decision

The Appellant allegedly said an inappropriate comment. The Appellant then reportedly re-stated the comment in front of other instructors. The Appellant said that his comment was misunderstood, and the last part of his sentence was likely misunderstood by the other instructors. None of the other candidates heard the comment and the member to whom he said the comment, couldn't recall the comment and said it was "hazy".

A Code of Conduct investigation was initiated alleging one contravention of section 2.1 of the Code of Conduct, namely, the Appellant was alleged to have made a discourteous comment of a sexual nature.

Following two conduct meetings, the Respondent issued a written decision where she concluded that the Appellant had made the discourteous comment as alleged, contrary to section 2.1 of the Code of Conduct. The Respondent determined that the Appellant made the comment after considering the evidence of the Appellant and his character references in conjunction with that of the instructors who had reported hearing the comment.

The Respondent imposed conduct measures which consisted of a demotion in rank for a period of one year, as well as a written reprimand. The severity of the conduct measures imposed was largely based on the "Doctrine of Cumulative Incident" (Doctrine) which permits an employer to rely on previous misconduct to show a pattern of behaviour and that the employee has not learned from his mistakes. The Doctrine permits a penalty that is more severe than the incident might otherwise justify when considered in isolation. The Respondent reasoned that the Appellant had a history of being disciplined for inappropriate comments. The most recent sanction was a 10-day pay forfeiture, which was the maximum penalty available short of dismissal at the time. In her view, the Appellant had not learned from his mistakes. The Appellant, through legal counsel, tendered an appeal, followed by a submission in which he claimed breaches of procedural fairness, errors of law and that the decision was unreasonable. He further argued that if the allegation was found to be established that the conduct measures-in particular the demotion-were disproportionate to the Code of Conduct violation.

The ERC made findings in relation to multiple arguments advanced by the Appellant in relation to the allegation and the conduct measures imposed for varying reasons reflective of applicable jurisprudence, but the following arguments were the most noteworthy. First, prior to the Code of Conduct investigation, a "Preliminary Investigation" was done in order to speak to the course candidates and instructors to try and determine the contents of the statement made by the Appellant. The Appellant was not invited to participate in this process and argued that this was procedurally unfair. The ERC found that the "Preliminary Investigation" was merely a fact-finding exercise to determine whether an infraction of the Code of Conduct may have occurred and including the Appellant at this stage was unnecessary, as he was provided the requisite procedural protections during the Code of Conduct process. Second, the Appellant argued that the member to whom he made the comment had the alleged comment told to her during the Preliminary Investigation and did not remember it independently. The ERC found that it was unclear from the record whether the alleged comment was told to her but, even if it was, this was not a determinative factor in the decision as the allegation was found established primarily because the Respondent preferred the evidence of the instructors who recalled hearing the alleged comment over that of the Appellant. Third, the Appellant argued that the Respondent's decision was procedurally unfair because it did not address positions taken by the Appellant in his submissions prior to the two conduct meetings and during the conduct meetings themselves. The ERC found that, while it would have been ideal for the Respondent to have addressed those positions in her decision, they were not central to the decision, the reasons provided by the Respondent in her decision were sufficient and the record itself contradicted the positions. Finally, the Appellant questioned the reliability of the evidence of some of the witnesses. The ERC found that while some of the evidence contained minor errors, the errors were tangential and, when considered as a whole, the evidence was not unreliable.

With respect to the conduct measures, the Appellant argued that the demotion was disproportionate in relation to the Conduct Measures Guide and the Doctrine was not applicable as the prior misconduct was not recent. The ERC disagreed and found that the Doctrine was applicable, as each case is examined on its own particular circumstances, and while the conduct measures imposed were outside what is normally imposed for a discourteous comment, as this was the Appellant's third violation of a similar nature and the Respondent properly applied the Doctrine, the measures imposed were not clearly unreasonable.

The ERC recommended that the appeal be dismissed.

The Commissioner's decision, as summarized by her office, is as follows:

On January 17, 2017, the Appellant was an instructor at a course. One of the candidates, Cst. X, was talking to the Appellant. In reply, the Appellant was alleged to have made one of two comments. A fellow instructor and supervisor who was nearby, alleged he clearly heard the Appellant state a different comment.

An informal inquiry was conducted the next day. No candidates recalled any inappropriate behaviour, including Cst. X who stated she and the Appellant were friends and she was not offended. The course coordinator, who was in charge of the informal inquiry, recalled the Appellant laughing. Another member of the instructor team stated he had a "vague recollection" of the Appellant repeating the comment he had made to Cst. X, when he approached the instructors and was in disbelief that someone would make such a comment.

A Code of Conduct investigation was ordered and an investigation report issued. Following two conduct meetings, the first in which the Appellant made lengthy submissions through counsel and the second, which followed a supplementary investigation report, the Respondent found, on a balance of probabilities, that the Appellant had made the discourteous comment, contrary to section 2.1 of the Code of Conduct.

As conduct measures, the Respondent imposed a demotion for a period of one year and a written reprimand. Although the severity of the conduct measures was outside of the recommended range in the Conduct Measures Guide, it was based on the "Doctrine of Cumulative Incident" which allows an employer to rely on previous misconduct that demonstrates a pattern of behaviour and that the employee has not learned from their mistakes. The Respondent considered the Appellant's history of prior misconduct for inappropriate comments, for which the last sanction consisted of a forfeiture of ten days' pay, the maximum penalty short of dismissal at the time.

The Appellant challenged the Respondent's decision. The case was referred to the ERC. The ERC found no grounds on which to overturn the decision and recommended the appeal be dismissed. The Conduct Appeal Adjudicator agreed. The appeal was dismissed.