D-095-096 - Adjudication Board Decision

Two members faced allegations of disgraceful conduct. The allegations involved inappropriate use of the RCMP's Mobile Work Stations (the "MWS") which are found in police vehicles and which allow communications between individual members. At the hearing, both Appellants admitted that while on duty, they had sent numerous communications over the MWS that were derogatory towards colleagues and members of the public, and which contained profanities and obscenities, one instance of a racially insensitive comment, comments expressing a desire to use improper force, and instances of expressing a lack of commitment to their work. The Adjudication Board (the "Board") found that the allegations had been established.

At the sanction hearing, evidence of previous discipline against both Appellants was presented. The Officer in Charge (the "OIC") of the detachment in which the Appellants were working testified that he had lost confidence in both Appellants. Counsel for the Appellants, on cross-examination of the OIC, suggested that the Appellants had been treated more severely than others, and that the OIC's personal dislike for one of the Appellants may have influenced his decision to proceed formally with discipline. The Board also considered reports prepared by a psychologist which concluded that the offensive communications were out of character and were the result of each Appellant trying to show himself as the most brazen and unorthodox. The psychologist found that the careers of both Appellants were salvageable, and he encouraged the Board to apply corrective/remedial measures rather than dismissal.

The Board concluded that an order to resign was the appropriate sanction. The Appellants had been disciplined previously for similar conduct. The messages showed a way of thinking that disregarded the RCMP Core Values and repudiated essential elements of the employment relationship.

New information submitted on appeal by the Appellants should not be considered, as for the most part it only reiterates factors that were known to the Board, or it consists of information that could have been made available to the Board with due diligence. Newspaper articles submitted cannot be expected to affect the result arrived at by the Board.

The Appellants' claim of institutional bias cannot succeed, as a reasonable person fully informed and having thought the matter through, would not find an appearance of bias based solely on the fact that the Adjudication Board members were of a lower rank and had lower visibility in the organization than the Respondent. There is no other evidence that would suggest an appearance that the members were not impartial.

There was a breach of fairness in having the Respondent's representative include in his closing submissions facts that had not been introduced as evidence through witnesses. However, the breach could not have affected the outcome of the case.

The Board made no errors in its findings of fact, and properly assessed the relevant factors. It was not obligated to follow the expert opinion, although it would have been helpful if it had given more explanation for its conclusions in this regard. Given the mitigating and aggravating factors identified, it was appropriate for the Board to order the Appellants to resign.

The appeals should be dismissed.

The Commissioner rendered his decision in these matters:

On the collateral issue of submissions made subsequent to the ERC report, the Commissioner refused, as in past decisions, to consider the post-ERC comments. While he agreed that each case must be viewed on its own, he clearly indicated that cases in which he would consider arguments submitted subsequent to the ERC report would be rare as it is not the role of the parties to comment on those findings and recommendations. That statutory responsibility falls to him.

On the issue of submitting additional materials on appeal, the Commissioner ruled that the materials did not constitute fresh evidence and, accordingly, he did not consider them on appeal.

Regarding the claim that the Board was biased because the Appropriate Officer outranked the Board members, the Commissioner ruled that the RCMP discipline process was sufficiently independent to meet the requirements of natural justice. Furthermore, by not raising this issue before the Board, the Appellants had waived their right to do so on appeal. Consequently, this ground of appeal was dismissed.

As for the issue of procedural unfairness due to the fact that the Appropriate Officer was not called to testify, the Commissioner agreed with the ERC that the appeals should not be upheld on this ground of appeal. Indeed, the Board did not have to rely on the impugned comments of the Appropriate Officer Representative to determine that the chain of command had lost confidence in the Appellants. The sanction of dismissal sought by the Appropriate Officer implicitly acknowledges that loss of confidence since discharge is reserved for cases where the employer no longer has confidence in an employee. However, the Commissioner indicated that the comments of the Appropriate Officer Representative must not amount to a belabouring of the point or to the expression of the personal views of the Appropriate Officer. Also, the Commissioner disagreed with the ERC that it would be appropriate to use the Agreed Statement of Facts to establish the evidentiary foundation that ties the reasons for seeking the members' discharge to evidence presented during the hearing.

The Commissioner also ruled that the Board had not erred in its appreciation and weighing of the facts. He disagreed with the Appellants' contention that the Board erred by failing to take into account the fact that they spent little of the Force's time in creating the impugned e-mails. This ground of appeal was therefore dismissed.

On the issue of biased witnesses, the Commissioner confirmed that considerable deference should be given to an adjudication board's findings on the credibility of witnesses. Accordingly, the Commissioner agreed with the Committee's analysis and conclusions and ruled that there was no reason to interfere with the Board's finding that a specific witness was credible. This ground of appeal was dismissed.

On the issue of the Board misinterpreting the expert evidence, the Commissioner was satisfied that the Board had correctly interpreted the evidence and agreed with the ERC that the Board made no error in this regard. This ground of appeal was also dismissed.

As for the issue of the weight attributed to previous discipline, the Commissioner again agreed with the ERC that the Board was correct in weighing, as an aggravating factor, the informal discipline that the Appellants had received in the past. The Commissioner ruled that the Board did not place undue emphasis on this factor. This ground of appeal was dismissed.

Finally, on the issue of parity of sanction, the Commissioner addressed the Appellants' argument that since the Force had not dismissed members whom they felt had committed more serious contraventions of the Code of Conduct, they should not be dismissed. As the highest appellate authority in the discipline system, the Commissioner is not bound by previous adjudication board decisions. However, in deciding whether the Appellants' conduct warranted dismissal, the Commissioner was mindful of the standard that must be met before an employer is justified in dismissing an employee for misconduct. Furthermore, the Commissioner clearly indicated that the Appellants were not being discharged simply because they had used RCMP IT equipment for private communications, but also because of the vulgar, racist, sexist and demeaning content of the messages. The Commissioner believed that the imposed sanction was justified.

Accordingly, the appeal was dismissed and the Commissioner affirmed the decision of the Board. The Appellants were directed to resign from the RCMP within fourteen days of being served with the decision, in default of which they was to be dismissed.