Conduct (Discipline) Appeals
The Appellant had been authorized by a Human Resources Officer (HRO) to engage in outside employment with a financial institution. Pursuant to the Force's conflict of interest policy (COI Policy) a member is required to obtain such authorization before participating in an outside activity for which the member receives, directly or indirectly, personal benefit. In January 2013, the HRO withdrew his authorization for, and ordered the Appellant to cease, her outside employment (HRO Direction). In response, the Appellant informed the HRO that she had, in fact, already resigned from her position with the financial institution.
In 2014-2015, the Appellant became involved in the promotion and sale of a health supplement and jewellery, for which she was financially compensated. The Appellant did not seek approval from the Force to engage in either of these endeavours. In a meeting in January 2015 with a superior officer once the Appellant's involvement in the two endeavours became known to the Force, the Appellant denied she was selling jewellery.
Three allegations were brought against the Appellant. Allegation #1 stipulated that by engaging in these endeavours without authorization, the Appellant had breached section 4.2 of the Code of Conduct which requires members to be “diligent in the performance of their duties and the carrying out of their responsibilities”. Allegation #2 asserted that the Appellant had failed to comply with the HRO Direction by engaging in those endeavours, contrary to section 3.3 of the Code of Conduct which requires members to “carry out lawful orders and directions”. Allegation #3 alleged that the Appellant had, contrary to section 8.1 of the Code of Conduct, lied to a superior in denying that she was selling jewellery. Following a conduct meeting, the Respondent found the three allegations to be established and imposed various conduct measures including a financial penalty of 5 days of pay and a forfeiture of 5 days of annual leave. The Appellant appealed the Respondent's findings on the three allegations and the conduct measures imposed.
After finding that the appeal was properly referable to the ERC on its merits, the ERC first considered the admissibility of a medical report submitted by the Appellant during appeal proceedings. The ERC referred to the CSOs (Grievances and Appeals) which prevents an appellant from filing a document on appeal if it was available during conduct proceedings. The ERC concluded that the medical report was not admissible as it contained information which could reasonably have been provided during the conduct proceedings.
The ERC then reviewed the Appellant's grounds of appeal with respect to the Respondent's findings on the three allegations. With respect to Allegation #1, the ERC indicated that a breach of section 4.2 of the Code of Conduct could be established by evidence that the member's conduct displayed a degree of neglect which distinguishes the conduct from a mere performance issue to an issue of misconduct. The ERC found that while the record supported the Respondent's finding that the Appellant had engaged in secondary activities contemplated by the COI Policy without obtaining the required authorization, the Respondent's reasons had not addressed whether the Appellant had displayed the degree of neglect required to substantiate a breach of section 4.2. The ERC found, given this omission, that the Respondent's finding on the allegation was clearly unreasonable and that the appeal should be allowed. However, the ERC was of the view that the Commissioner, in making the finding that the Respondent should have made, could find that the allegation was established. The Appellant's failure to obtain authorization prior to engaging in the promotion and sale of a health supplement and jewellery, in light of her prior knowledge of the COI Policy's requirements in that regard evidenced the requisite degree of neglect for a breach of section 4.2 to be established.
With respect to Allegation #2, the ERC did not agree with the Respondent's finding of a failure by the Appellant to comply with the HRO Direction by promoting and selling a health supplement and jewellery. The HRO Direction only directed the Appellant to cease her secondary employment with the financial institution and she had complied with that order at the time it was issued. The Appellant had therefore not breached section 3.3 of the Code of Conduct. The ERC recommended that the appeal of the Respondent's finding on Allegation #2 be allowed and that the Commissioner make the finding that Allegation #2 is not established.
As for Allegation #3, the ERC found that the record supported the Respondent's finding that the Appellant had breached section 8.1 of the Code of Conduct by lying to her superior about her involvement in the promotion and sale of jewellery, and it recommended that the appeal of the Respondent's finding on that allegation be dismissed.
Turning to the appeal of the conduct measures imposed by the Respondent, the ERC observed that the Respondent had provided no reasons in support of the conduct measures imposed. This failure resulted in a breach of the Appellant's right to procedural fairness and rendered the Respondent's decision in this regard clearly unreasonable. The ERC recommended that the Commissioner allow the appeal of the conduct measures imposed by the Respondent and impose conduct measures based on the Commissioner's own review of the Record. In that regard, the ERC highlighted the absence of any prior discipline involving the Appellant and her cooperation with the investigation, which were both mitigating factors. As for aggravating factors, the misconduct involving outside activities was repetitive and occurred over an extended period of time. Taking into consideration these factors as well as conduct measure ranges indicated in the Force's Conduct Measures Guide and prior relevant cases, the ERC recommended to the Commissioner that he impose a forfeiture of 1 day of the Appellant's pay or of the Appellant's leave in respect of Allegation #1, a forfeiture of 3 days' of the Appellant's pay in respect of Allegation #2 and a written reprimand. The ERC also recommended that the Commissioner confirm a direction to work under close supervision which had been imposed by the Respondent.
ERC Recommendations dated August 17, 2016
The ERC recommended to the Commissioner of the RCMP that he allow the appeal in part and make the finding that Allegation #1 was established and that Allegation #2 was not established. The ERC also recommended to the Commissioner that he dismiss the appeal of the Respondent's finding on Allegation #3. The ERC further recommended that the Commissioner allow the appeal in respect of the conduct measures imposed on the Appellant by the Respondent and impose the above-noted conduct measures based on his own review of the record.
Commissioner of the RCMP Decision dated March 31, 2017
The Commissioner's decision, as summarized by his office, is as follows:
The Appellant is an NCO working in a specialized analytical unit. The Appellant was granted permission to engage in secondary employment at a bank, but this permission was withdrawn when the Appellant's work hours were reduced to provide her time to rest for medical reasons. The Appellant was advised that when her medical status allowed her to increase her hours of work per week, suitable work would be provided within the RCMP.
The Appellant subsequently became involved in selling health supplements and jewelry. The Appellant was still working reduced hours for medical reasons and did not obtain permission to engage in this secondary employment. When the Appellant was asked by her supervisor about her involvement in selling jewelry she repeatedly denied any involvement. The Respondent initiated a Code of Conduct investigation and found that the Appellant had:
- (allegation 1) engaged in secondary employment without permission contrary to s. 4.2 of the Code of Conduct;
- (allegation 2) disobeyed an order contrary to s. 3.3 of the Code of Conduct; and
- (allegation 3) lied to her supervisor contrary to s. 8.1 of the Code of Conduct.
The Respondent imposed the following conduct measures as a result of these findings: a written reprimand, direction that the Appellant work under close supervision for a year, a forfeiture of 40 hours of pay, and a forfeiture of 40 hours of annual leave. The Respondent's findings and the conduct measures he imposed were appealed.
The Royal Canadian Mounted Police External Review Committee (ERC) reviewed this appeal and provided recommendations pursuant to s. 45.15 RCMP Act. The Conduct Appeal Adjudicator followed the ERC's recommendations in relation to the Respondent's findings and partially adhered to the ERC's recommendations for conduct measures.
The Conduct Appeal Adjudicator dismissed the appeal relating to allegation 3 and confirmed the Respondent's finding that the Appellant had lied to her supervisor. The Conduct Appeal Adjudicator upheld the appeal in relation to allegations 1 and 2 because the decisions were clearly unreasonable – the Respondent's rationale failed to adequately explain the reasons for his findings for both of these allegations. The Conduct Appeal Adjudicator then provided the decision he believed the Respondent should have made. The Conduct Appeal Adjudicator found that the Appellant had engaged in secondary employment without permission (allegation 1) but had not disobeyed an order (allegation 2) in doing so.
The Conduct Appeal Adjudicator found that the conduct measures imposed by the Respondent were clearly unreasonable as the Respondent had not provided any reasons for the measures he selected. Based on his review of the evidence the Conduct Appeal Adjudicator imposed the following conduct measures which he believed the Respondent should have imposed: direction to review RCMP materials and policy relating to graduated return to work; direction to work under close supervision for a year; forfeiture of 8 hours of leave; forfeiture of 40 hours of pay; a written reprimand.
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