C-147 - Conduct Appeal

The Appellant repeatedly told his superiors that Sergeant (Sgt.) [X] grabbed his shoulder, turned him around, and pushed him during a workplace exchange (Incident). The Appellant also filed a Notice of Occurrence in which he described the Incident as an “assault” (Form 3919e). During a preliminary fact-finding exercise, none of the five witnesses could recall seeing any contact, and Sgt. [X] insisted he did not touch the Appellant. Months later, the Appellant refined his version of the Incident. He said Sgt. [X] “likely touched my shoulder and flicked me away for half a second”.

The Respondent alleged that the Appellant had breached section 8.1 of the Code of Conduct by failing to provide complete, accurate, and timely accounts of Sgt. [X]’s actions during the Incident (Allegation). Following an investigation and a Conduct Meeting, the Respondent concluded that the Allegation was established (Decision). The Respondent went on to impose conduct measures. She ordered a forfeiture of three days’ pay, and a one-year period of ineligibility for a promotion.

The Appellant appeals both the Decision and the conduct measures. In so doing, he relies on a number of documents, three of which do not appear to have ever been before the Respondent.

After noting that there were no determinative preliminary issues, the ERC found that the Appellant’s three new documents were inadmissible on appeal. He could have provided all of them prior to the Decision by way of due diligence. There was no evidence of any steps he took or efforts he made to provide them, or of any barrier that he might have faced in so doing.

Turning to the merits, the ERC began by dismissing the Appellant’s many procedural unfairness positions. The bulk of those positions could not be entertained on appeal because the Appellant had omitted to raise them at the earliest practical opportunities. The lone remaining procedural unfairness concern involved administrative decisions which fell outside the scope of the appeal.

The ERC also rejected the idea that the Respondent made an error of law. The Respondent did not fail to consider whether an essential element of a section 8.1 breach had been established.

The ERC further disagreed that the Decision was clearly unreasonable. The Respondent did not err in her assessment or treatment of specified evidence. Moreover, her disputed reasoning was rational, tenable, and based on the evidence before her.

The ERC determined that the Commissioner should overturn the conduct measures imposed by the Respondent, and order other (though not necessarily different) conduct measures, further to paragraph 45.16(3) of the RCMP Act. The ERC explained that the Respondent disregarded an important mitigating factor and relied on four irrelevant aggravating factors. Appropriate conduct measures in the circumstances comprised a forfeiture of three days’ pay, and a one-year period of ineligibility for a promotion, albeit based on a different evaluation than that of the Respondent.

The ERC recommends dismissing the appeal of the finding on the Allegation, and confirming that finding. It also recommends allowing the appeal of the conduct measures. It further recommends imposing conduct measures comprising a forfeiture of three days’ pay and a one-year period of ineligibility for a promotion, based on a different analysis.