'Such conduct has a direct and obvious link to the nature of the work and the reputation of the employer'
A federal worker’s off-duty conduct that led to criminal charges was sufficient to justify her dismissal, the Federal Public Sector Labour Relations and Employment Board has ruled.
The worker was hired in 2007 by the Correctional Service of Canada (CSC) to work in the mailroom of its Pacific Institution in Abbotsford, BC. The CSC later appointed her to a position as a program assistant and inmate pay clerk. By 2012, she was working at the Community Corrections Administration Office.
CSC had a commissioner’s directive that required employees to demonstrate behaviour that “shall reflect positively” on the CSC and the public service, both on and off duty. The directive stated that it was an infraction if an employee committed an indictable offence or an offence punishable on a summary conviction under Canadian law that “may bring discredit to the service or affect his/her continued performance with the service.”
The CSC also had a Code of Discipline and Standards of Professional Conduct, which stated that criminal acts or other law violations “do not demonstrate the type of personal and ethical behaviour considered necessary in the service.”
“The nature of the employer being the Correctional Service of Canada, it appropriately treats criminal charges as very serious, even if it's off-duty conduct,” says Christopher Munroe, a labour and employment lawyer at Roper Greyell in Vancouver. “The CSC is charged with looking after people that have broken the law, so any suggestion that an employee has engaged in a criminal offence is taken very seriously because such conduct has a direct and obvious link to the nature of the work and the reputation of the employer.”
Off-duty conduct
On Nov. 7, 2013, the worker went to her boyfriend’s residence early in the morning. She thought he hadn’t been home and wanted to surprise him, so she crawled through an unlocked kitchen window.
However, as she came through the window, her boyfriend intercepted her. She observed a woman in the bedroom and, according to the worker, she “lost control” and “went ballistic.” Her boyfriend tried to hug her to keep her from causing damage, but she pushed him off and kicked some paintings. She also kicked a hole in a wall and assaulted her boyfriend as they wrestled.
Police were called and they interviewed everyone involved. The worker acknowledged intentionally kicking the paintings and damaging a laptop computer, as well as kicking a hole in the wall unintentionally.
The police laid criminal charges against the worker, including being unlawfully in a dwelling-house, assault, and two counts of mischief under $5,000. The worker informed the CSC of the charges the next day and the CSC placed her on paid annual leave while it determined the seriousness of the offences. It assigned an investigator to conduct a disciplinary investigation on Dec. 6 and, five days later, it placed the worker on suspension without pay pending the completion of the investigation.
It informed the worker that due to the nature of the allegations, there were no other options available because her attendance at work “would present a serious safety and security risk to the service and would adversely affect our public reputation.”
A suspension is fairly typical in the circumstances, and whether it's paid or unpaid likely depends on the language of the collective agreement and the employer’s policies, according to Munroe.
“Typically, the suspension would be paid because there’s no good reason to deprive the employee of pay until such time as the employer has made a finding whether the employee breached a policy that warrants discipline,” he says. “The unpaid suspension is a little bit unusual, but that may turn on the nature of this employer in its policies and its past practice with respect to criminal charges.”
Investigative interviews
During the investigation, the worker denied damaging a laptop and said that the injury to her boyfriend was from a scab that had been dislodged. She also said her boyfriend had told the police that she had free access to his residence and she believed that she didn’t break and enter.
The investigator determined that, on a balance of probabilities, the worker violated the commissioner’s directive, the Code of Conduct, and the Standards of Professional Conduct. The CSC then held a disciplinary hearing on April 2, 2014.
At the hearing, the worker admitted to entering her boyfriend’s residence and damaging paintings, but she said she had entered through the window many times before. She later admitted it was the first time, but she denied damaging the wall and said she only damaged one painting. She also said that she had received counselling since a previous incident in 2012 involving late-night property damage at a former boyfriend’s residence, for which the CSC suspended her for two days.
At a second disciplinary hearing, the worker acknowledged that she had lost her temper but maintained that she had permission to enter through the window and denied assaulting her boyfriend or damaging the laptop. She said the police had misunderstood the situation when they charged her.
The CSC believed that the worker wasn’t being fully truthful and she was minimizing her behaviour. It also considered the 2012 incident - after which the worker was warned that similar behaviour or other infractions could result in more severe discipline including termination - as well as a 10-day suspension in November 2013 for too many unauthorized absences.
Termination of employment
On May 16, the CSC terminated the worker’s employment for breaching the code and standards of conduct, her “continued lack of responsibility” for her actions, and an “inability to correct your behaviour.”
The worker grieved her termination, contending that, while there was cause for discipline, termination was excessive. She argued that her off-duty conduct didn’t affect her ability to perform her job duties and it was “a strong, spontaneous reaction.” She also said that the CSC had no concern for her well-being and caused her humiliation, embarrassment, and financial hardship.
However, the worker acknowledged that she wasn’t completely truthful in the investigation because she was worried about losing her job.
The board found that the worker’s off-duty conduct breached the commissioner’s directive and code of conduct, as it involved offences punishable on summary conviction under Canadian law. All of the evidence from the police interviews and the worker’s disciplinary hearings indicated that, on a balance of probabilities, the worker entered her boyfriend’s residence without permission, assaulted him, and damaged property.
“The board was satisfied that, on the civil standard of a balance of probabilities, the worker had actually committed criminal offenses,” says Munroe. “That's a bit interesting, because the worker wasn't convicted on a criminal standard - I'm not sure exactly if it went to trial or if there was some kind of a plea deal, but the adjudicator heard from the police, looked at the evidence, and decided on a civil standard that the worker had, in fact, committed an offence under the Criminal Code, which is also a breach of the employer's policies.”
Employer reputation
The board also found that the offences with which the worker was charged were serious and she admitted that she lost control. Since she was employed with the CSC, such misconduct and criminal charges were likely to bring discredit to the CSC for “a reasonably informed bystander,” the board said.
The board also considered the worker’s conduct during the disciplinary process, noting that she wasn’t forthcoming in her responses, minimized her actions, and failed to acknowledge the seriousness of her behaviour.
“[The CSC] performed a very detailed investigation and they gave the worker a couple of opportunities to provide her side of the story - I think that really helped solidify the termination decision, because worker wasn’t truthful,” says Munroe. “The worker wasn't truthful in the first interview, and she was given a second opportunity to come clean and take some responsibility for it, and she didn't - this lack of honesty in the investigation was a critical component to the upholding of the termination.”
In addition, the worker had two previous suspensions, including one for similar off-duty conduct, said the board.
Citing the worker’s disciplinary history, the nature of the misconduct, and her failure to demonstrate accountability, the board concluded that termination was a justified response. The worker’s grievance was denied and the termination was upheld.
A key aspect to the matter was that the worker had done this kind of thing before, says Munroe.
“This worker had engaged in almost the same thing, an assault or a violent altercation with a partner, basically a year or so before this occurred, and she was given a two-day suspension for that,” he says. “So the employer took a measured approach to that first infraction, and then she said she went to anger management counselling, and then did it again - the worker was aware of severity of this issue and previously been warned about it.”
