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Nelligan O’Brien Payne gratefully acknowledges the contribution of Sarah Mansour, Student-at-Law in writing this blog post.

When it comes to codes of conduct, how strict should an employer be in penalizing breaches? Is a “momentary lapse in judgement” a reasonable excuse?

In Stewart v. Deputy Head (Canada Border Services Agency), the Public Service Labour Relations and Employment Board rejected a bid to have a Canadian Border Services Officer’s two-week suspension reduced, after he solicited and accepted complimentary tickets to an Elton John concert.

The grievor, Charles Stewart, was employed as a border services officer (BSO), and holds peace officer status. On April 24, 2012, Stewart and his co-worker were assigned to clear the plane of superstar Elton John and his entourage for entry into Canada at the Lethbridge Airport. After their examination of Mr. John’s plane, both officers were approached by Elton John’s assistant, and offered free tickets to his concert for that evening. While both initially declined the offer, Mr. Stewart made numerous attempts to obtain the free tickets. That same night, Stewart made his way to the concert venue box office and identified himself as a CBSA officer looking to pick up the free tickets that he allegedly had been promised. Eventually, Stewart and his wife attended the concert with the free tickets, and sat front row while being serenaded by the “Rocket Man” singer.

To Stewart’s luck, an off-duty CBSA agent working as a volunteer security guard for the event overheard the exchange between Stewart and the box office staff over his radio. Subsequently, he reported Stewart to his CBSA supervisor, as he knew it was a clear violation of the code of conduct for a CBSA employee to accept gifts of such nature. Soon after, the CBSA launched an internal investigation, and suspended Stewart for two weeks without pay for breaching the code of conduct and code of ethics.

Stewart appealed his two-week suspension, and argued that the penalty imposed was disproportionate, given the mitigating factors. He argued that a three-day suspension without pay would be a more appropriate penalty. Although he recognized his conduct had threatened the CBSA’s image, he stated that he had been honest and forthright about his actions. He further argued that his excitement over the Elton John concert and the possibility of taking his wife to the event had caused him a momentary lapse in judgement.

The employer submitted that although the grievor’s apology, recognition of misconduct, and remorse were mitigating factors, they were lessened by the manner in which the grievor attempted to explain his actions. The grievor knew that his actions were wrong, but continued to pursue the tickets, and placed his interest ahead of the employer’s. The employer further argued that although public servants bear a greater requirement to act with integrity than the general public, peace officers such as the grievor must be held to an even higher standard. Moreover, Stewart must bear the scrutiny of the public he serves, and the penalty imposed must in itself reflect the severity of the breach. As such, public servants cannot be allowed to place their interest above the interest of their employer and the Canadian public.

The adjudicator dismissed the grievor’s appeal, and found that his actions clearly violated the CBSA’s code of conduct and Values of Ethics Code for the Public Service. The grievor was repeatedly told not to accept the tickets, and was aware that the CBSA’s code of conduct explicitly prohibited officers like himself from accepting gifts from the public. While Stewart attempted to argue that his misconduct occurred while he was off duty, the adjudicator held that his acts were directly related to his duties as a CBSA officer. His numerous years of service and his remorse were both viewed as mitigating and aggravating factors. Based on his long service as a BSO and the advice of his supervisor, the grievor knew that his behaviour was unacceptable. Stewart made three repeated and deliberate attempts to obtain the tickets, and although he expressed remorse, the adjudicator stated that an “employee motivated by greed who takes advantages of his position to benefit himself and his wife deserves discipline, including potentially termination”. The employer was justified in disciplining Stewart up to the point of termination for his conduct. The adjudicator further reasoned that the purpose of imposing penalties was to deter similar conduct, and to send a clear message to the employee and workplace that such behaviour will not be tolerated.

In order to avoid similar situations, employees need to proceed with caution, and be mindful that they cannot be perceived as benefitting personally in the course of performing their duties. Employees need to ensure they conduct themselves in an ethical manner, and employers must encourage their employees to consider the ethical implications that arise with receiving gifts. Individuals in a similar position as the grievor are expected to act in the best interest of Canadians, follow orders, and act with integrity and honesty at all times. As for employers, it seems as though they would be entitled to strictly discipline employees to deter such behaviour, since imposing a lesser penalty would simply trivialize the nature of the employee’s violation of the code of conduct and the code of values and ethics.

For more information about the application of a workplace code of conduct, contact our Labour Law Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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