C-098 - Conduct Authority Decision

The Appellant appealed the decision of the Conduct Authority (Respondent) who found that he contravened section 4.2 of the Code of Conduct (Duties and Responsibilities) by failing to wear Personal Protective Equipment (PPE) when responding to a call (Allegation 1), and section 8.1 of the Code of Conduct (Reporting) by providing inaccurate accounts to his supervisors about the issuance and availability of PPE (Allegation 3). Allegation 2, which concerns a breach of section 8.1 of the Code of Conduct for inaccurate accounts the Appellant provided to his supervisors about his ability to work, was considered unfounded by the Respondent. The Appellant is also appealing the conduct measures imposed for Allegations 1 and 3, which respectively consist of a forfeiture of five days’ annual leave and a forfeiture of five days’ pay.

The Appellant argued that the decision was procedurally unfair due to a reasonable apprehension of bias by the Respondent. He also argued that the decision and conduct measures were clearly unreasonable.

The ERC found that the Respondent had a reasonable apprehension of bias against the Appellant, and in turn, reached the decision in a procedurally unfair manner. The ERC found that the Respondent’s comment in the Appellant’s performance evaluation that he had demonstrated “poor judgment” in relation to the incident underlying Allegation 1 demonstrated a prejudgment of the issue and partiality on his part. This comment was made during the conduct process, at which point the Appellant had not yet been afforded the opportunity to be heard on the allegations nor had the Respondent rendered his decision on whether the allegations were established.

The ERC recommends that the appeal be allowed. The ERC further recommends that the Commissioner, in making the findings that the Respondent should have made, find Allegations 1 and 3 established and impose the following conduct measures: a forfeiture of three days’ pay for Allegation 1, and a forfeiture of four days’ pay in addition to a reprimand for Allegation 3.