Charges not strong enough for firing: Arbitrator
A New Brunswick deputy sheriff who was fired after punching someone has been reinstated by an adjudicator.
The 39-year-old worker was a deputy sheriff for the New Brunswick Department of Public Security (DPS). The DPS has a code of conduct for its employees that includes a requirement to notify the regional sheriff within 24 hours “if they had been questioned or charged by the police in relations to their involvement in criminal activity.” Generally, any employees who have criminal convictions are terminated.
On Aug. 12, 2017, the worker was off duty and attended a wedding reception for someone with whom he played ball hockey. He drank five or six beers that evening so he called a tow truck to take him and his vehicle home.
As the worker was waiting for the tow truck, someone insulted him. The source was another ball hockey player who had punched the worker’s father at a game six years earlier. This had caused a rift between their families.
The worker replied with an insult of his own and they had a brief physical altercation. The worker punched the other man, who told a police officer who saw the altercation that the punch was unprovoked while the worker said it was in self-defense. The worker was charged with simple assault.
The next day, the worker advised the regional sheriff of the incident. He described it as “a wrestling event broken up by a police officer” and maintained that he didn’t do anything wrong. Later that day, the victim called and provided his version of events, which differed from the worker’s.
The worker then told the regional sheriff he wouldn’t be pressing charges and would let the matter go if the victim did as well. His account differed from his original description of the event. In addition, the worker revealed that he had called the police officer who had broken up the altercation on his personal cellphone to give him more information, which also concerned the regional sheriff.
On Aug. 18, the DPS reassigned the worker to administrative duties pending an investigation. The worker was convicted on June 22, 2018 of simple assault, though the sentencing was put off. Three days later, the DPS terminated the worker’s employment for “your conviction and the unprofessional behaviour in contacting the officer involved, which constitutes a blatant disregard for the code of conduct, and given your position as deputy sheriff, we have concluded that there is a connection between the off-duty conduct and your employment.”
There was no mention of the conviction in the media, though some lawyers and members of the judiciary mentioned it to the regional sheriff. In October, the worker received a conditional discharge.
The adjudicator noted that there was some public knowledge of the charge based on comments by lawyers and the judiciary, but there was no media coverage and no proof of harm to the DPS’s reputation.
The adjudicator found that the charge of simple assault and the fact it stemmed from a single punch put it low on the scale of seriousness, in addition to the fact it was a first offence. The judge demonstrated that by giving the worker a conditional discharge, said the adjudicator.
The adjudicator also found that what the DPS considered a lack of transparency could be attributed to the worker’s perception that was influenced by alcohol — which likely caused the incident in the first place. As for the call to the police officer, there was no evidence the worker was trying to gain an advantage. Though it may have been inappropriate, there was no evidence of improper motives, said the adjudicator.
The adjudicator determined that termination was excessive. The DPS was ordered to reinstate the worker with a 30-day suspension and compensation for any lost wages.
Reference: NBUPPE and Department of Public Security. John McEvoy — adjudicator. Michelle Brun-Coughlan for employer. Sophie Landry Mockler for employee. April 20, 2020. 2020 CarswellNB 348