C-085 - Conduct Authority Decision

The Appellant appeals the decision of the Respondent, who found that the Appellant contravened section 3.3 of the Code of Conduct by reporting to work while suffering from COVID-19 symptoms.

On appeal, the Appellant contends that there was a breach of procedural fairness due to an unanswered request for disclosure, to the partiality of the acting Officer in Charge and the investigator, to the absence of a supplemental investigation and to the failure to obtain a witness statement. In addition, the Appellant argues that the Respondent's decision was clearly unreasonable given that delays were incurred during the conduct process, that the Respondent improperly characterized the COVID-19 Return to Workplace Guide (COVID-19 Guide) as a directive and that the decision was not supported by the evidence.

The ERC found that the lack of disclosure was not a breach of procedural fairness since there was no evidence that the Respondent had the document in his possession at the time he rendered his decision. The ERC also found that the Appellant waived his right to raise an apprehension of bias by failing to raise his concerns during the conduct process. With regard to the absence of a supplemental investigation and the failure to obtain a witness statement, the ERC found that the Appellant's right to be heard was not compromised.

With regard to the Appellant's arguments that the decision was clearly unreasonable, the ERC found that the delays incurred during the conduct process did not render the Respondent's decision clearly unreasonable. The ERC also found that the Appellant had failed to demonstrate that the Respondent's reasoning regarding the authoritative nature of the COVID‑19 Guide, as well as his assessment of the evidence, were clearly unreasonable. 

The ERC recommends that the Commissioner dismiss the appeal.