D-053 - Adjudication Board Decision
On two occasions in a thirteen-month period, a member had gone to the home of another member, a co-worker whom he had been assigned to assist with performance issues. On both occasions, the member entered his co-worker's residence and her bedroom uninvited and found her in bed. On the first occasion, the co-worker was uncomfortable, but did not say anything to the member; they discussed work-related matters and the member left. On the second occasion, after they left the bedroom and were in the kitchen, the member touched his co-worker's neck for a few seconds. When they worked the same shift later that night, the member spoke to his co-worker, found out she had been somewhat offended by his actions, apologized and assured her it would not happen again.
The co-worker told a watch commander about the two occasions of the member's entering her house and bedroom uninvited, but indicated that she did not want a formal investigation, as she had chosen to handle it herself. The matter was later reported. An investigation led to four allegations of disgraceful conduct and a hearing was initiated.
The adjudication board found two allegations of disgraceful conduct to have been established. It found that the member had abused a situation for his own advantage. It determined that the co-worker had been the victim of sexual harassment, but declined to make a finding that the Canadian Human Rights Act had been violated. The member was ordered to resign. He appealed the board's decision that his conduct had amounted to disgraceful conduct, and also appealed the sanction imposed.
The Committee first dealt with two preliminary issues. In his appeal submissions, the member noted that the board had commented in its decision on his complaint of undue influence of witnesses by senior members of the detachment; the board had asked that the Commanding Officer of the division be informed of the complaint. The member indicated that the board had ordered a report to be produced regarding the complaint, and asked that the Committee not consider the appeal until this report was received. The Committee found that there had been no report ordered, since the board had been satisfied that the witnesses had testified truthfully. Therefore, the Committee declined to await such a report. Secondly, the Committee found that a hand-drawn sketch of the co-worker's house was not admissible in the appeal, and recommended that the Commissioner not consider it.
On the merits of the board's findings of disgraceful conduct, the Committee found that the board's determination that the member had abused his authority over his co-worker for a "less than pure" purpose was central to its finding of disgraceful conduct. The Committee examined the RCMP Harassment Policy and found that, to constitute sexual harassment, conduct must have a sexual purpose and must give rise to one of two perceptions: (a) it might reasonably be seen to cause offence or humiliation to an employee, or (b) it might reasonably be perceived as placing a condition of a sexual nature on employment.
The Committee determined that there was no evidence that could support a conclusion that the member had abused his authority for a sexual purpose. It found that the board had erred in making the determination that the Appellant had abused his position and employment relationship. Nevertheless, the Committee found that the member's conduct could fall within the first category of conduct that amounts to sexual harassment, because a sexual purpose could be inferred, and the unwelcome touching of the co-worker had clearly offended her. The Committee determined that the member's conduct could possibly amount to sexual harassment, but was not of a nature and gravity that engaged the Code of Conduct. The member's actions had clearly been inappropriate, but had not involved an abuse of his position; he had apologized of his own volition after realizing his mistake and there was no reason to think that his action would be repeated. The board's determination that the conduct was disgraceful was not supportable by the evidence, and the Committee recommended that the appeal be allowed on that basis.
The Committee addressed the sanction appeal, in the event that the Commissioner disagreed on the issue of the establishment of disgraceful conduct. It determined that the sanction imposed, a direction to resign, was clearly unreasonable and was disproportionate to the conduct at issue in this case. The Board had erroneously considered a prior disciplinary record of the member to have been for the same conduct as that of the current matter. Also, the member had been remorseful when he realized his mistake, had apologized and had ceased his behaviour as soon as he had realized its offending nature, and the sanction had not properly taken into account his apology, his remorse or other arbitration board decisions on sanction in the context of sexual harassment. The board's determination that the member was "beyond rehabilitation" was not founded in the evidence. On December 23, 1997, the Committee recommended that, if the Commissioner denied the appeal on the establishment of disgraceful conduct, he allow the appeal against sanction and impose a reprimand and forfeiture of five days' pay.
On July 23, 1998, the Commissioner disagreed with the Committee's finding that the conduct did not violate the Code of Conduct. He did, however, allow the appeal on sanction and modified the order to resign by a forfeiture of 10 days' pay.