Temporary demotion after criminal conviction more appropriate discipline for officer with previously spotless record: Court
Permanent demotion not progressive discipline
An employee, while off-duty, drives while intoxicated and causes an accident, seriously injuring someone, and flees the scene without helping. The employee is arrested and charged, eventually being convicted of two criminal offences. The employee has a job involving a significant amount of responsibility and requires a lot of trust, and the employer is a public agency. The employer thinks it is being lenient by considering the employee’s good service and simply demoting him rather than firing him. However, the employer is wrong.
This was the situation for the Canada Border Services Agency, which thought it was being easy on an employee considering this conduct, but it turned out an arbitrator disagreed. Despite the seriousness of the charges, it was difficult to prove the employee was unfit to return to his old job after lesser discipline.
A Canadian border services officer who seriously injured someone and fled the scene while driving drunk deserved serious discipline but not a permanent demotion, the Canadian Public Service Labour Relations Board has ruled.
Terry MacArthur was employed by the Canada Border Services Agency (CBSA) since 1988, first as a customs officer at Pearson International Airport in Toronto and later as a border services officer in Fort Erie, Ont. His job was to screen border crossings from the United States into Canada.
As with all border services officers since Sept. 11, 2001, MacArthur had received training and assumed the powers of a peace officer, which meant he could be a “first responder” in the case of four specific violations of the Criminal Code of Canada: Impaired driving, outstanding warrants, missing children and stolen property. With regard to impaired driving, border services officers had the power to charge someone for impaired driving or order a breath analysis test.
During most of his time with the CBSA, MacArthur was considered a good employee and didn’t have any performance problems. He was trusted and took on special duties, such as a drug sting operation in conjunction with the RCMP. He was also well-respected in the community, participating in community work with his church and local sports leagues.
Bad day escalates into criminal charges
On Nov. 25, 2006, just before he was to go to work, MacArthur’s wife told him she wanted to end their marriage after 23 years. He called in sick, bought a bottle of vodka and got behind the wheel of his vehicle while intoxicated.
MacArthur drove into the path of a motorcycle carrying two people that resulted in a collision that seriously injured the motorcycle’s driver. MacArthur didn’t stop and drove home, where he went into his basement and drank more alcohol.
A witness at the scene reported MacArthur’s licence plate number to the police, who also found his rear bumper, which had come off in the collision. The police found MacArthur at home, drunk and bleeding from the mouth. He was arrested and charged with four criminal offences: Impaired driving, impaired driving causing bodily harm, dangerous driving and leaving the scene of an accident.
After his arrest, MacArthur realized he had an alcohol problem and joined Alcoholics Anonymous. He acknowledged his responsibility and apologized to his employer for embarrassing himself and the CBSA.
At a meeting on Dec. 7, 2006, MacArthur explained the circumstances of his separation from his wife and his alcohol problem. He admitted to what happened and said he was going to a treatment program. As a result, he was allowed to return to his duties as a border services officer pending the outcome of his trial. He was monitored by his supervisor and was on restricted duties for two months, but returned to full duties on Feb. 1, 2007. The CBSA also stipulated that if he had any further alcohol-related incidents or was convicted, it would review his status. If he was sentenced to two years or more, he would be dismissed.
MacArthur worked in his regular job for the next 14 months without any incidents. He received letters of commendation for an incident where he broke into a truck that was on fire and rescued the driver before it exploded.
Permanent demotion after conviction
In February 2008, two of the criminal charges were withdrawn in exchange for MacArthur pleading guilty to impaired driving causing bodily harm and leaving the scene of an accident. The CBSA then held a disciplinary meeting with him on March 19 where MacArthur was told he was being disciplined for off-duty conduct that was harmful to the agency’s reputation. The CBSA’s code of conduct included harm to its reputation and being “guilty of a serious breach of the Criminal Code.”
MacArthur’s boss determined that in addition to damaging the CBSA’s reputation, the convictions affected the agency’s ability to trust him. Because of the responsibilities of border service officers and the fact they don’t have direct supervision while on the job, trust was “absolutely crucial.” Despite the fact MacArthur had worked for more than a year after the incident, once his supervisor reviewed the sentencing she felt the incident was “so heinous that it called into question (MacArthur’s) ability to make good judgments.”
MacArthur’s sentencing and the fact he was employed by the CBSA were mentioned in newspaper articles and the incident was well-known in the community. The CBSA felt its public trust and confidence were negatively affected.
The CBSA felt these factors made MacArthur incapable of continuing to perform his duties as a border services officer. However, it took into account his otherwise strong record in his job and his continued good service following the incident. Though it considered terminating his employment, it felt he could remain employed in a lower position with less responsibility and permanently demoted him to a clerk position.
On March 31, 2008, MacArthur was sentenced to 21 months to be served in the community as a conditional sentence. He had to report to a supervisor every day, remain in Ontario, attend Alcoholics Anonymous meetings, stay at his home except for going to work, perform 100 hours of community service and avoid alcohol and non-prescription drugs.
On April 2, MacArthur filed a grievance, claiming a permanent demotion was too severe and the CBSA didn’t give enough weight to mitigating factors such as his length of service and performance record. He also argued it essentially amounted to termination and didn’t allow for a corrective function in the spirit of progressive discipline.
Firstly, the board found it was reasonable for the CBSA to have a code of conduct that included off-duty conduct, given the responsibilities of its employees and the importance of public trust. It also found MacArthur’s conduct on Nov. 25, 2006 violated the code, since he was charged with breaching the Criminal Code, which is specifically referred to in the code of conduct. This conduct was also harmful to the CBSA’s general reputation, which MacArthur acknowledged and apologized for in the meetings with management.
However, the board found it harder to believe the CBSA’s trust in MacArthur could be completely destroyed. He had 18 years of service with a good record both with the CBSA and in the community, said the board, and he had proven his ability to make good judgments during that time as well as the period between the incident and his conviction.
The board found the CBSA was aware of the facts surround the incident after it happened and little changed once he was convicted. Since it felt he could perform the duties of a border services officer in the interim, it was unlikely the final judgment should change that perception permanently, said the board. In addition, the board pointed out the fact the CBSA chose to demote MacArthur rather than dismiss him showed it still had some level of trust in him.
The board agreed the CBSA had just cause to discipline MacArthur for serious off-duty misconduct. However, the permanent demotion was tantamount to dismissal when the discipline should have been on a corrective basis for an employee with good standing. As well, MacArthur showed remorse, accepted responsibility for his actions and was taking steps to address his problems, which made the board believe MacArthur would be rehabilitated and the CBSA could resume its trust in him.
The board ordered the CBSA to reinstate MacArthur to the position of border services officer after a 30-month period of demotion.
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