D-119 - Adjudication Board Decision

A Code of Conduct investigation revealed that the Appellant requested Lieu Time Off (LTO) for hours he had already received as Overtime (OT). The Appellant was served with a Notice of Hearing, but no steps were taken to advance the proceedings for over a year.

The Member Representative (MR) filed two preliminary motions to the Adjudication Board (Board) : one for not being served with the Notice of Hearing "forthwith" as is required by the RCMP Act and one for abuse of process caused by delay. Both motions were rejected by the Board.

The Board relied on the testimony of the Appropriate Officer Representative's (AOR) witnesses to find that Allegation 1 was established. It held that the Appellant's testimony explaining the events was not credible. It stated that it did not believe the Appellant's exculpatory evidence; that there was clear and convincing proof of the particulars alleged; and that the behaviour was disgraceful and warranted discipline. The Board imposed a sanction of a reprimand and a forfeiture of ten days' pay.

After the hearing, the Appellant was approached by a witness who demanded, in a hostile demeanor, an apology, otherwise he would hear from her lawyer. The Appellant appealed, and sought authority to file fresh evidence of this conversation in relation to witness credibility.

The ERC allowed the fresh evidence on appeal. The ERC agreed with the Board that the Appellant was served with the Notice of Hearing "forthwith". It also found that even though there was an inordinate delay in the proceedings, this delay did not constitute an abuse of process.

The ERC then found that the Board made manifest and determinative errors in its credibility assessments and findings of fact. It found that there were several inconsistencies in the AOR's witnesses testimonies, especially the witness who showed animus towards the Appellant. This led to it placing too much weight on her testimony, ignoring some of the Appellant's evidence, and ultimately making conclusions that were not supported by the record. The ERC ultimately found that the record showed that the Appellant's actions took place in a context that did not support a finding of disgraceful conduct. Rather, the record suggests that the incident arose from a combination of inattention, administrative errors and misunderstandings.

The ERC recommended that the Commissioner of the RCMP dismiss the Appellant's preliminary motions, consider the fresh evidence raised on appeal, and allow the appeal on the merits. It also recommended that he apologize to the Appellant for the several instances of unfairness and prejudice that occurred through this disciplinary process. On a related note, the ERC further recommended that the Commissioner order a review of the disciplinary process in this case, including whether or not the Appellant's promotion should be retroactively reinstated. Lastly, it recommended that training be provided for new leave management systems.

The Commissioner has rendered a decision in this matter, as summarized by his office:

In a decision dated January 17, 2013, Commissioner Robert W. Paulson agreed with the ERC and allowed the Appellant Member's appeal.

The Commissioner found that the Board made palpable and overriding errors in assessing the credibility of some of the Respondent Appropriate Officer's witnesses, and in reaching a number of findings of fact. The Commissioner found that the Appropriate Officer did not prove that the Appellant's conduct was planned and deliberate or that he knowingly received or attempted to receive a double payment. Instead, the evidence showed that the conduct was non-culpable and that a number of factors contributed to the error, including the Appellant's lack of concentration and psychological turmoil at the time, administrative errors, and a lack of familiarity with the online leave system.

The Commissioner denied the Appellant's appeal of the Board's decision to deny his preliminary motions requesting a stay of proceedings, and agreed with the ERC that the Appropriate Officer met the requirement of serving Appellant "forthwith" and that the delay from the initiation of the disciplinary hearing to the setting of hearing dates did not constitute an abuse of process.

The Commissioner shared the ERC's concerns that the Appellant had been treated unfairly at points during the disciplinary process. He found that this matter may have been resolved had management initiated a discussion with the Appellant, or had they been willing to listen to his explanations. The Commissioner found that a further review of the disciplinary process, as recommended by the ERC, would not be necessary however, as he had fully reviewed the matter during the disciplinary appeal and reached the appropriate and necessary conclusions on all issues involved.