Border guard drove while drunk, injured motorcyclist in hit-and-run accident
An off-duty border guard who seriously injured a motorcyclist in a hit-and-run accident while driving drunk deserved to be disciplined, but a permanent demotion was too harsh, the Canadian Public Service Labour Relations Board has ruled.
Terry MacArthur worked as a border services officer in Fort Erie, Ont., at the Canada Border Services Agency (CBSA). His job was to screen border crossings from the United States into Canada.
As with all border services officers, MacArthur had the powers of a peace officer, which meant he could be a “first responder” for certain violations of the Criminal Code, including impaired driving. Border services officers have the power to charge someone for impaired driving or order a breathalyzer test.
MacArthur was considered a good employee and didn’t have any performance problems. He was trusted and sometimes took on special duties, such as a drug sting operation in conjunction with the RCMP.
Bad day escalates into criminal charges
On Nov. 25, 2006, MacArthur’s wife told him she wanted to end their 23-year marriage. He called in sick to work, bought a bottle of vodka and went for a drive, where he drove into the path of a motorcycle, causing a collision that seriously injured the motorcycle’s driver. MacArthur fled the scene and went home, where he continued to drink more alcohol in his basement.
A witness reported MacArthur’s licence plate number to the police, who also found his rear bumper, which had come off in the collision. 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 joined Alcoholics Anonymous. He acknowledged his responsibility and apologized to his employer for embarrassing himself and the CBSA.
At a Dec. 7, 2006, meeting, MacArthur 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 on restricted duties for two months but returned to full duties on Feb. 1, 2007. The CBSA also warned if he had any further alcohol-related incidents or was convicted, it would review his status.
MacArthur worked for the next 14 months without any problems and received letters of commendation for an incident where he rescued the driver of a burning truck at the border.
Permanent demotion after conviction
In February 2008, two of the charges were withdrawn in exchange for MacArthur pleading guilty to impaired driving causing bodily harm and leaving the scene of an accident.
CBSA then held a disciplinary meeting where MacArthur was told he was being disciplined for off-duty conduct that was harmful to the agency’s reputation. CBSA’s code of conduct prohibited actions that harmed its reputation and were “a serious breach of the Criminal Code.”
MacArthur’s boss determined that, in addition to damaging CBSA’s reputation, the convictions affected the agency’s ability to trust him. Because of the responsibilities of border service officers and the absence of direct supervision while on the job, trust was “absolutely crucial.”
Despite the fact MacArthur had worked for more than one year after the incident, once his supervisor reviewed the court decision, she felt the incident was “so heinous” it rattled CBSA’s faith in his ability to make good judgments.
MacArthur’s sentencing and his employment with the CBSA were mentioned in newspaper articles and the incident was well-known in the community. CBSA felt its public trust and confidence were negatively affected.
CBSA felt these factors made MacArthur incapable of continuing as a border services officer. However, it took into account his strong work record and his continued good service following the incident. Though it considered terminating his employment, CBSA felt he could remain employed in a lower position with less responsibility, so it permanently demoted him to a clerk position.
On March 31, 2008, MacArthur was sentenced to a 21-month 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.
It was reasonable for CBSA to have a code of conduct that included off-duty conduct, given the responsibilities of employees and the importance of public trust, found the labour relations board. MacArthur’s misconduct also violated the code since he was charged with breaching the Criminal Code. 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 CBSA’s trust in MacArthur could be completely destroyed. He had 18 years’ service with a good record and had proven his ability to make good judgments both before and after his conviction, said the board.
CBSA was already aware of the facts surrounding the incident and little had changed once he was convicted, said the board. Since the agency felt he could perform his duties in the interim, it was unlikely the final judgment should change that perception permanently. In addition, since CBSA chose not to dismiss him, it must still have some level of trust in him, said the board.
CBSA had just cause to discipline MacArthur for serious off-duty misconduct, said the board. 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 and was taking steps to address his problems, which made the board believe MacArthur could be rehabilitated and restore CBSA’s trust.
It ordered the CBSA to reinstate MacArthur to the position of border services officer after a 30-month period of demotion.
For more information see:
•MacArthur v. Canada (Deputy Head — Border Services Agency), 2010 CarswellNat 3397 (Can. Public Service Lab. Rel. Bd.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.
