C-042 - Conduct Board Authority

This is an appeal by a Conduct Authority requesting the member be directed to resign within 14 days or face dismissal from the Force.

The member was charged with four allegations relating to his conduct at an off-duty party held for a family member's section. Both the member and the family member belong to an RCMP unit. The member appeared before a Conduct Board where the four allegations under the Code of Conduct were deemed established. Three of the established allegations were under section 7.1 of the Code of Conduct and one was under section 2.1 of the Code of Conduct. The Board found that in respect of the section 2.1 allegation, neither sexual harassment nor sexual harassment in the workplace occurred. The Board made a finding that the member's conduct amount to discourteous conduct.

In addition to ordering continued treatment and other sanctions, the Board sanctioned the member to a total loss of 45 days of pay.

The Appellant, in addition to the sanction referred to above, submitted that the Board made an error in law in finding that sexual harassment in the workplace did not occur. Further, the Appellant argued that the Board should have considered all of the events globally and had it done so, would have determined that resignation/dismissal was the appropriate sanction in this case.

The ERC found that the Appellant was correct in respect to the Board's finding that discourteous conduct and not sexual harassment in the workplace took place. There was a sufficient nexus between the events in question and how it affected one of the victims in the workplace to determine that the Board erred in law, especially in light of the fact that it did not even refer to the applicable harassment provisions.

The ERC recommended that the sanction of five days' loss of pay in respect of this allegation be set aside and 20 days' loss of pay be directed by the Commissioner.

The ERC agreed with the Appellant that under normal conditions, dismissal in these circumstances would have been the appropriate sanction. However, the Board was obliged to consider both aggravating and mitigating evidence when making its determination as to appropriate sanctions. There was overwhelming and compelling mitigating evidence in favour of the member, all relating from work and other matters that were dealt with in the report, to determine that dismissal was not appropriate here.

With respect to the other three allegations, the ERC recommended that the imposed sanctions stand.

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

The Appellant, the Commanding Officer, "X" Division, as a conduct authority, appeals the decision of a Conduct Board (Board). The Respondent, an RCMP member, was charged with four allegations of contravening the RCMP Code of Conduct at an off-duty event. Three allegations concerned discreditable conduct (section 7.1) and one, harassment (section 2.1).

All four of the allegations were established. The Appellant sought dismissal. With regard to the section 2.1 allegation, the Board was not convinced that the Respondent's actions amounted to harassment. Rather, the Board found the conduct to be disrespectful and discourteous. For the four allegations, the Respondent was sanctioned a total of 45 days' pay, ordered a transfer/reassignment, and directed to continue psychotherapy and undergo any treatment specified by the Health Services Officer.

On appeal, the Appellant argued that the Board made an error of law by failing to find that the Respondent's conduct amounted to sexual harassment. The Appellant also took issue with the conduct measures insisting that the Board should have considered all the allegations globally, and in doing so, it would have determined that dismissal was the appropriate sanction.

The appeal was referred to the ERC for a review. The ERC found that Respondent's conduct constituted sexual harassment. The ERC determined that the Board's imposed conduct measure for the section 2.1 allegation was clearly unreasonable and recommended that instead of five days, a forfeiture of 20 days' pay was more appropriate.

The Commissioner accepted the ERC findings and recommendation and allowed the appeal in part.