A Conservation Officer was fired after it was revealed that he defied the order of a superior and persuaded a Crown Prosecutor to withdraw a charge laid against a fishing guide under the Fish and Wildlife Act.
Working seasonally as a Conservation Officer for 21 years, P.A. was considered an exemplary employee. Glowing evaluations lauded P.A.’s hard work, his leadership abilities and his qualities as a team player who was well liked by his fellow employees.
After P.A. chose to cite a fishing guide for an infraction under the Fish and Wildlife Act rather than issue a warning, it became apparent that — if convicted — the guide could lose his license because of previous infractions.
Moved by concern over the serious financial hardship that would result if the guide lost his license, P.A. asked his immediate supervisor if he thought the guide might be an appropriate candidate for the “Breakfast Program.” An informal administrative option, the “program” allowed violators to make voluntary donations to identified charitable causes in the community in exchange for having the charges dropped.
Given that the risk of financial hardship coupled with a not-so-serious infraction were the operative criteria for participation in the program, P.A. made the case for the guide with the Assistant Conservation Supervisor.
Supervisor’s orders
However, the supervisor took a different view and felt that given the guide’s previous history, another warning would send an inappropriate message. He explicitly said that he wanted the charges to proceed and, though P.A. was unaware of it, this decision was confirmed later in a discussion between P.A.’s immediate Supervisor and the Regional Conservation Manager.
Before the guide’s court appearance, P.A. informed his partner who was present both at the issuing of the citation and at the meeting with the Supervisor that he intended to speak with the Crown Prosecutor about the possibility of channeling the guide through the Breakfast Program.
P.A.’s colleague told P.A. that he wanted no part of the conversation because the action that P.A. was contemplating was in direct contravention of their supervisor’s explicit directions.
Nevertheless, P.A. spoke with the Crown Prosecutor and raised some questions about the viability of the prosecution because of evidentiary issues. He also mentioned the Breakfast Program, of which the prosecutor was unaware.
The charges were withdrawn and later the same day P.A. circulated a memo to indicate that the charges had been dropped because of evidentiary issues.
P.A.’s ruse crumbled after questions were raised about why the charges were withdrawn. P.A. was terminated.
Flagrant insubordination
The letter of termination charged P.A. with wrongly influencing a Crown Prosecutor to withdraw charges against the express wishes of the Department. The letter characterized his behaviour as flagrant insubordination.
Before the arbitrator, the employer argued that P.A.’s actions reflected poor judgment and amounted to a breach of trust — critical deficits for Conservation Officers who must be relied upon to work independently. Moreover, the damage that P.A. had inflicted on his own credibility raised serious questions about the Crown’s ability to warrant and stand behind his testimony in future cases. The employer argued that P.A.’s actions had irretrievably destroyed the trust relationship between them and that termination was the only option.
The arbitrator disagreed, ruling that there were significant mitigating factors to be weighed against the employer’s claim that the employment relationship had been fatally breached. “These mitigating factors do not absolve [P.A.] of the serious errors which he made but do need to be considered …”
Among the mitigating factors in this case were that P.A.’s use of the Breakfast Program did not reflect an attempt to absolve the guide of the offence. Rather he used an alternate administrative sentencing mechanism that had been in use for a period of time. There was no suggestion that he was motivated by personal gain and he was an exemplary employee with a distinguished, 21-year career who — as a father of two — would also face financial hardship if he lost his job.
“Badly conceived but well motivated”
“The present decision does present a difficult choice between the deterrence effect associated with sending a strong message to employees as to the high standard of conduct required of Conservation Officers and the reinstatement of a long term employee with a very good work record whose momentary misconduct resulted from a badly conceived but well motivated attempt to assist a third party,” the arbitrator said.
“It is concluded that … the trust relationship that has existed between the Employer and the Grievor can be reestablished. The Grievor has been a dedicated employees for many years and the serious error he committed … must be seen as a momentary aberration … Further, there is no indication of any animosity or bitter feelings between [P. A.] and any employee with whom he works.”
The arbitrator said that it was understandable that the employer would be disappointed by P.A.’s actions but ruled, on balance, that termination of P.A.’s employment was too severe a disciplinary action. P.A. was reinstated without retroactive pay.
