IN THE MATTER OF AN ARBITRATION BETWEEN. THE REGIONAL MUNICIPALITY OF YORK POLICE SERVICES BOARD (the SERVICE ) - AND -

Transcription

1 IN THE MATTER OF AN ARBITRATION BETWEEN THE REGIONAL MUNICIPALITY OF YORK POLICE SERVICES BOARD (the SERVICE ) - AND - THE REGIONAL MUNICIPALITY OF YORK POLICE ASSOCIATION (the ASSOCIATION ) AND IN THE MATTER OF A RIGHTS DISPUTE DOUGLAS WILSON (the GRIEVOR ) BEFORE: C. Gordon Simmons, Chairperson APPEARANCES ON BEHALF OF THE SERVICE: Mr. B.H. Stewart, Counsel Ms Joy Hilton, Solicitor, York Region Legal Department Mr. T. Matsousos, Law Student Inspector Gordon Smyth, Officer in Charge of Human Resources Former Superintendent, L. McClenny (retired) APPEARANCES ON BEHALF OF THE ASSOCIATION: Mr. Harry G. Black, QC, Counsel Mr. Douglas Wilson, Grievor Mr. David Kingston, President York Regional Police Association

2 Hearings into this matter were held in Aurora, Ontario on June 8 and December 2, 1999.

3 - 3 - The grievor was demoted from the rank of Sergeant to First Class Constable on June 3, 1993 for a period of 12 months and evaluation to be done at that time (Ex. 1.A). The grievor is an avid bridge player. There is no dispute between the parties that while participating in this pastime on New Year s Eve, December 31, 1992, he conducted himself in a manner that resulted in two counts of discreditable conduct while off duty. He pleaded guilty to the two counts before Hearing Officer Superintendent Lowell McClenny at a hearing on June 3, The grievor did not appeal Superintendent McClenny s decision and spent most of the 12 months assigned to courtroom security. At the conclusion of the 12 months the grievor testified he waited for the evaluation to take place but nothing happened. He spoke with Sergeant Patrick Herald, his supervisor, near the end of June to enquire if the Sergeant had received any word concerning his evaluation. Upon receiving a negative response, the grievor went to the next supervisor in line who was in charge of court duties, Staff Sergeant Collangeo, but he too had no information. The grievor next spoke with Inspector Peter Thompson who is in charge of support services and after explaining the situation Inspector Thompson offered to look into the matter but he never got back to the grievor. The grievor then reached two conclusions. The first was the evaluation would be done in February on his normal birthday in association with his annual evaluation at which time he would again raise the issue. Secondly, he surmised he may simply be reclassified back to the rank of sergeant without evaluation. In any event, in February, 1995 when his annual evaluation would have taken place he became concerned and began making enquiries. Within two days of initiating his enquiries he was called into Deputy Chief Robert Wilson s office and, according to the grievor, received apologies from the Deputy Chief for the matter not having been attended to much earlier. In any event, an evaluation was performed and on February 21, 1995 Deputy Chief Wilson wrote to Chief Bryan Cousineau as follows (Ex. 2):

4 - 4 - As you are aware, on June 3, 1993, Sergeant Douglas Wilson pled guilty to two counts of Discreditable Conduct. As a result of that plea he was sentenced to three 8 hour days and also reduced in rank from Sergeant to First Class Constable for a period of 12 Months, at which time a special evaluation was to be submitted on the officer. This evaluation (copy attached) is a good evaluation. On Tuesday, February 21st, 1995, I had Constable Wilson #360 in my office and interviewed him in relation to his present position in the courts, his attitude and his recent evaluation. As a result of his evaluation and interview, I recommend Constable Douglas Wilson be reclassified to the rank of Sergeant, as per the penalties imposed by Superintendent Lowell McClenny, the Hearing Officer. It is important to note Deputy Chief Wilson uses the word reclassified and not the word promotion in his letter to Chief Cousineau. The following day on February 22, 1995 Chief Cousineau wrote to Deputy Chief Wilson as follows (Ex. 3): Please be advised that I have reviewed your memorandum of February 21, 1995, and your recommendation of reclassification to Sergeant for Constable Douglas Wilson #360. I have also taken the opportunity to review the Officer s evaluation. His evaluation is good but in my opinion does not justify me recommending to the Board that he be promoted to the rank of Sergeant. I note, however, that there are comments in regards to Constable Wilson having increased responsibility in the Court Bureau and it would appear to me that Constable Wilson wishes to remain in the Court Bureau. Perhaps you should consider giving him increased responsibility such as Liaison Officer between the Court Security Officers and Sergeant, keeping in mind that we will have an additional four Court Security Officers in May of this year. It is equally important to note Chief Cousineau uses the word promotion in his response to the Deputy Chief. Nothing further officially transpired until December 23, 1997, approximately 34 months later, when the President of the Association wrote to then Acting Chief of Police, Peter Scott, seeking to have the Acting Chief review the matter with Deputy Chief Wilson as well as with the Regional Legal Branch and reclassify the grievor to Sergeant with back pay and pension monies (Ex. 4). Further correspondence between the parties followed (Ex. 5, 6, and 7) with the Association formally filing its grievance on April 7, 1998 (Ex. 8). The Police Services Board replied on April 27 as follows (Ex. 9):

5 - 5 - Your letter dated April 7, 1998 advising that the Association is grieving the decisions by Chief of Police Cousineau and Acting Chief of Police Scott not to reclassify Constable Doug Wilson #360 contrary to the Police Services Act was before the Board on April 22, The Board reviewed the matter and is questioning the arbitrability of this grievance. This response, therefore, is on a Without Prejudice basis since, in the opinion of the Board, this is not arbitrable. Based on the information regarding this matter, the Working Agreement, the Police Services Act, and on a Without Prejudice basis to the Board s position that this matter is not arbitrable, the Police Services Board found no violation and therefore denies the grievance. PRELIMINARY MATTER At the commencement of these proceedings, Counsel for the Police Services Board raised an objection to the arbitrability of this matter due to unreasonable delay. Approximately 34 months had lapsed between February 22, 1995 when Chief Cousineau refused to recommend the grievor be reinstated (to use a neutral word) to the rank of sergeant to December 23, 1997 when the matter was again raised with Acting Chief Peter Scott, and April 7, 1998 when the Association formally filed its grievance (Ex. 8). As for his reasons for the delay, the grievor testified that when Deputy Chief Wilson again called him into his office and showed him Chief Cousineau s letter of February 22 (reproduced above) he exclaimed: How can he do this? Deputy Chief Wilson, according to the grievor, suggested the Chief was being stubborn and he should take other steps against the Chief. The grievor stated he had approximately three years to serve before retirement and he did not wish to start litigation. He talked with Mr. Bailey, president of the Association, and expressed his fears against reprisals by the Chief should he pursue a grievance. He feared the Chief would make life miserable for him and held the view the Chief was a vindictive autocrat and if he pursued action against him he would pay a price down the road such as undesirable transfers, no promotional opportunities, and no perks. During his testimony the grievor related his long association with

6 - 6 - Chief Cousineau and the rivalry the two experienced in, inter alia, promotions over the years. The grievor spoke with Association President Bailey about his concern who informed the grievor the decision was up to him as to what course he should follow. This is where matters remained until shortly after Acting Chief Peter Scott came upon the scene. He replaced Chief Cousineau at which time the grievor felt safe to initiate some action. It was at this point in time when the grievor gave Mr. Bailey the authority to begin proceedings on his behalf. Counsel for the Association urged me to dismiss the preliminary objection on the basis the delay was reasonable under the circumstances. The grievor feared reprisals from the Chief which were real to the grievor and sufficient to overcome his desire to proceed against the Police Services Board. The parties pointed to certain provisions of the collective agreement in support of their respective positions. I have carefully reviewed the provisions and reproduce below those provisions which are, in my view, most pertinent to the issue before me. These are (Ex. 11): ARTICLE 2 RECOGNITION AND SCOPE 2.5 The Association acknowledges that it is the exclusive function of the Board to maintain order, discipline and efficiency, to hire, discharge, promote, demote or dismiss members of the Police and to carry out all of the requirements of the Police Services Act, provided that the claim to discipline, promotion, demotion or transfer or a claim that the member has been discharged or disciplined without cause may be the subject of a grievance and dealt with as hereinafter provided. ARTICLE 5 GRIEVANCES AND COMPLAINTS 5.2 The Grievance and Complaint Procedure shall be in accordance with the provisions of the Police Services Act and the parties hereto agree that when a difference arises between the parties hereto, or those they represent in connection with or relative to the interpretation, application or administration of this Agreement, including any question as to whether a matter is arbitrable or any decision or award made subsequent thereto, the procedures as outlined in Schedule A to this Agreement shall apply.

7 - 7 - ARTICLE 35 The Parties agree that discipline is intended to be corrective. When management intends to take written disciplinary action against a member, management will provide the member and Association with a minimum of 72 hours notice before such action is to be taken. If the member is off work, the time period shall not run until the member returns to duty. Failure to provide notice will not affect the validity of any discipline. A member has the right to be represented by the Association throughout the discipline process. Once the member chooses to be so represented, management will thereafter provide copies of all disciplinary documents to the Association.

8 - 8 - SCHEDULE A COMPLAINT AND GRIEVANCE PROCEDURE 1. When a member of the bargaining unit has any grievance or complaint, he shall forthwith convey to his immediate superior, orally with or without a member of the Association Executive or in writing, all facts relative to the grievance and/or complaint. The member and the superior shall make every attempt to resolve the problem at this preliminary stage. 2(c) The Chief of Police shall hear or receive the grievance and/or complaint and within five (5) working days communicate to the Association in writing his decision relative to the grievance and/or complaint. 2(d) 2(e) 2(f) 2(g) If the Association is dissatisfied with the ruling of the Chief of Police or his designate, or if the Chief of Police fails or refuses to deal with the grievance and/or complaint within the specified time and the Association wishes the Board to deal with such grievance and/or complaint, it shall file with the Board the grievance and/or complaint within fifteen (15) days of the date the grievance and/or complaint was submitted to the Chief of Police or his designate. The Board shall investigate the grievance and/or complaint and/or cause an inquiry to be held between the persons involved in the dispute, and shall within fifteen (15) days of receipt of the grievance and/or complaint communicate, orally or in writing, its decision in the matter. The Association may, if dissatisfied with the decision of the Board or if the Board fails to communicate, acknowledge or inquire into the grievance and/or complaint within the specified time, submit the matter of grievance and/or complaint to arbitration as provided by the Police Services Act, R.S.O. 1990, Chapter 10, as amended. Any time limits specified in this procedure may be enlarged or extended, by the consent of the parties then so engaged in the procedure. It is noteworthy that while Schedule A sets out certain time frames within which communications are to be exchanged back and forth there is nothing specifying what happens in the event either party fails to comply with these time frames. It is true that while para. 2 (g) stipulates time limits specified may be enlarged or extended by the consent of the parties there is nothing stating what is to happen if the time frames are not complied with. Under these circumstances it would appear when an objection is made to proceeding to the merits of a grievance due to a claim of unreasonable delay there are several factors an arbitrator normally takes into account. One is the length of the delay, another is the reasons for the delay, a

9 - 9 third is what prejudice has been caused to the party raising the objection due to the delay. When addressing the issue of prejudice the party raising the objection may claim the presence of certain obstacles that have risen due to the delay such as the unavailability of witnesses who could testify in support of the party s position. If the party raising the objection is the Police Services Board, as in the instant case, it may claim prejudice in being unable to explain the reasons for its actions due to unavailability or loss of memory of witnesses who are available. It may also claim prejudice because it was not afforded an opportunity to correct the situation at an early date, if indeed it determines corrections were warranted. An example may be the instant situation. Had the matter been processed earlier in these proceedings the Police Services Board, if unsuccessful in the position it has taken on the merits, had to reclassify the grievor to the rank of Sergeant it would have been in a position to derive the benefit of his services as a Sergeant instead of merely having to pay the grievor at the sergeant s rate while having him continue to provide services of a First Class Constable. In counteracting the Police Services Board s position is the position advanced by the grievor. He maintains that he feared reprisals from the Chief if he pursued his grievance. Deputy Chief Wilson expressed the opinion that had the grievor filed his grievance in 1995 he would not have been further penalized. While the grievor s fears are subjective and may indeed have been unfounded I have no doubt, having heard the grievor testify, that he genuinely held those fears and as soon as Chief Cousineau was no longer on the scene brought forward his grievance. There is also an objective element present which persuades me the grievor s fears may be well founded. That element is as follows.

10 On June 4, 1993, the day following the issuance of the penalty, Chief Cousineau spoke with Superintendent McClenny over the phone and requested he clarify his decision. Superintendent McClenny did so by letter which reads (Ex. 12): June 4, 1993 This letter is directed to you to [sic] in relation to the sentence which I imposed against Sergeant Douglas Wilson on Thursday, June 3, 1993 after finding him guilty as charged on two counts of engaging in discreditable conduct in that he acted in a disorderly manner, contrary to section 1(a)(i) of the Police Services Act. In order to clarify what is listed under the area of penalty imposed on each of the two counts the following is submitted. That Sergeant Douglas Wilson, #360, be demoted immediately from the rank of Sergeant to that of First Class Constable for a period of twelve months and that at that time an evaluation be completed on him. By indicating this penalty I had no intentions of him being re-classified back to the rank of Sergeant. I feel that it is up to Sergeant Wilson to prove his competency in the rank of First Class Constable and if that was proven and he decided to enter the promotional process again and successfully completing each step involved that perhaps he would be eligible and considered at that time for promotion to the next rank. This letter was first shown to the grievor by his counsel two days before these proceedings commenced. Dept. Chief Wilson did not recall having previously seen the letter and when referred to the last paragraph where Supt. McClenny refers to the promotional process Dept. Chief Wilson was surprised. He commented there is a big difference between evaluation and the promotional process. It was his view the grievor was qualified to serve as Sergeant, he was on the list where he remained until it was changed. It is again noteworthy Dept. Chief Wilson used the word reclassified and not promoted in his letter to Chief Cousineau, supra. The foregoing raises a number of questions. I take official knowledge of the fact Chief Cousineau left the Police Services Board under a cloud. He was not called to testify but I was not informed he was

11 - 11 unavailable. Based on the evidence led I draw certain inferences. Chief Cousineau was not amenable to having the grievor reclassified at the end of the 12 month demotion period but rather intended the grievor reenter the promotional process. That was not the penalty imposed as will be revealed later in this decision. In my view the grievor had reason to fear the treatment he might receive from Chief Cousineau. Whether or not any untoward treatment might have befallen the grievor at the behest of Chief Cousineau does not require an answer. It is sufficient to conclude the grievor s fear was genuinely held and outweighs the Police Services Board s interest in having the matter dismissed due to delay. Further, the Police Services Board has not established it has suffered prejudice which would warrant dismissal of the grievance due to delay. Accordingly, the objection based on unreasonable delay is rejected. THE MERITS The issue on the merits is fairly narrow. The penalty imposed reads: Reduction in rank to First class Constable for a period of 12 months and evaluation to be done at that time. Basically, the Association has taken the position that at the end of 12 months the grievor ought to have been reclassified as Sergeant with the pay and benefits that rank carried. By failing to do so the Police Services Board continues to discipline the grievor long after the penalty was due to expire and therefore constitutes a violation of art. 5.2 of the collective agreement. The Police Services Board disagrees with the position advanced by the Association. It claims there has been no violation of the collection agreement nor of the Police Services Act. The Association, according to the Police Services Board, misconstrues what a demotion is. It is not just a reduction in rank but is in addition a prevention to the demoted officer from applying for a promotion within the period specified in the

12 - 12 demotion. What happens is that at the end of the demotion period the grievor is entitled to claim his rights in the collective agreement to be promoted once again to a higher rank. The Association would have the grievor jump to the front of the queue and in fact ignore the collective agreement but such is not the case. Once the grievor has his rights to a promotion restored he exercises those rights on the same basis as other officers. The answer, it seems to me, is to be found in the collective agreement and the Police Services Act. Article 2.5 of the collective agreement grants the Police Services Board the exclusive function to demote members of the police for cause. But a claim that a member has been demoted without cause is subject to the grievance and complaint procedure as stipulated in art. 5.2 of the collective agreement which refers to the Police Services Act and Schedule A of the collective agreement. If, as the Police Services Board claims, the grievor was to be placed in the promotional process following the 12 month demotion then its position that the collective agreement has not been breached may have a great deal of merit. But if the grievor was to be reclassified at the end of 12 months providing the evaluation posed no obstacle then other considerations apply. From a logistic point of view it is advisable to first look at the Police Services Act. The most relevant provision of the Police Services Act is to be found in s.61.: PENALTIES Calculation Idem Dismissal and demotion Notice of decision Idem Police officer s employment record 61. (1) If misconduct is proved at the hearing on clear and convincing evidence, the chief of police may, (c) demote the police officer, specifying the manner and period of the demotion;

13 - 13 The meaning of specifying the manner and period of the demotion has been addressed by a board of inquiry chaired by Gary Yee dated June 27, 1994 in Sgt. Y, Halton Regional Police Service. At an internal disciplinary hearing Sgt. Y was found guilty of misconduct on two charges and received the penalty of a: reprimand on allegation #1 and a demotion in rank from Sergeant to First Class Constable for a period of nine months, at the end of which Sergeant Y would remain a constable but would be permitted to enter the promotional process for the rank of Sergeant. Sgt. Y appealed the demotion penalty on the grounds, inter alia, the demotion had no definite time period and the period of nine months was excessive. The facts in that case involved a female complainant who sought to have the police assist her in obtaining her vehicle from her former boyfriend. She spoke with Sgt. Y about her concerns over the violent and potentially violent nature of her former boyfriend. The complainant was scared and told Sgt. Y she had no place to stay. Sgt. Y invited her to stay at his residence as he was working the night shift. She accepted the invitation. During Sgt. Y s lunch hour he arrived home whereupon they had sexual intercourse. The complainant remained at Sgt. Y s home for approximately five months at which time she broke off the relationship and complained to the police that she had been sexually assaulted. The Yee board of inquiry looked at s.61(1)(c) of the Police Services Act and devoted its attention, inter alia, to the meaning of the word period contained in the section. Was it to be interpreted as meaning a fixed and definite period or could it include a variable or indefinite period? The board discussed prior arbitration and police discipline cases to assist it in its inquiry. While its decision as to the meaning of the

14 - 14 word period appears to be somewhat unclear there are two observations one can derive from its discussion. The word period may be interpreted as being definite or finite in time or it may be indefinite. The answer will depend on the wording contained in the penalty imposed. One result of the Yee decision appears to be clear, however, and that is the period of time established is for the hearing officer or board of inquiry to determine and is not to be delegated to someone else such as the chief of police. The Yee board altered the hearing officer s penalty to the nine months as a constable at which time Sgt. Y was to be appointed as a sergeant in an acting capacity in accordance with the promotion procedure... It is interesting the board of inquiry used the word appointed and not promoted in its decision. But, the board of inquiry was concerned due to the nature of the offense whether Sgt. Y was or would be officer material then or later. Its comments at p. 24 are enlightening. With respect to the suitability concern, the Board agrees with Inspector Repa that the misconduct has rendered Sergeant Y unsuitable for a sergeant position. If this officer were a police constable and not a sergeant, the Board likely would fix a definite demotion period with an automatic return to the former rank. However, a higher standard exists for a supervising officer. We have examined the Job Description of a platoon sergeant (Exhibit 21), as well as taken into consideration Inspector Reba s submissions about the qualities of a supervisor. At this time, with the nature of the misconduct and all the circumstances of this case and this officer, the Board concludes that Sergeant Y is not qualified to supervise other officers, give them appropriate guidance, evaluate their performance, respond to complaints from the public, and so forth. At the same time, the Board does not believe that Sergeant Y will never be able to attain the necessary qualifications; yet the Board is not in any position to determine when the officer will be ready for promotion. Therefore, the Board is willing to allow Sergeant Y the opportunity, within his period of potentially permanent demotion but only after a minimum of nine months, to be given a chance to demonstrate his capabilities. In addition, the Board also believes that Sergeant Y should not have to go through the entire assessment procedure. The Board recognizes that this officer has been a sergeant since Turning next to the instant situation the facts are materially different from the facts in the Yee case. Hearing Officer McClenny imposed a 12 month demotion. But he also imposed a requirement of an evaluation being done at that time. Precisely what the evaluation was to consist of and the purpose of

15 - 15 conducting it was not revealed. What was revealed was an evaluation was conducted belatedly and its results were good. The Association takes the position that at the end of 12 months the grievor was to be reinstated to the classification of sergeant. The Police Services Board takes the position the grievor was to be placed in the promotion line for the classification of sergeant. In my respectful opinion neither position is totally accurate. Deputy Chief Robert Wilson testified he was not aware of any reason why the grievor should not have been reclassified to the rank of sergeant at the end of the 12 month period based on the evaluation made in February In Deputy Chief Wilson s opinion there is a big difference between evaluation and the promotional process. I understand evaluations are carried out on anniversary dates to ascertain, inter alia, the employee s performance record from the time the last evaluation was taken. If the evaluation is good it would appear nothing more need be done by the employee. If the evaluation reveals the employee s performance is lacking in certain respects it is an opportunity to point out the deficiencies to the employee and similarly give the employee an opportunity to correct any deficiencies which may be present in his performance. The promotional process, on the other hand, is one whereby a police officer seeks to become qualified to hold the rank of sergeant. Until he qualifies he has no entitlement to hold the sergeant s rank. But, in Deputy Chief Wilson s opinion the grievor had previously qualified to be assigned the rank of sergeant and he remained qualified and did not have to go through, in his opinion, the promotional process once again. In cross-examination Deputy Chief Wilson was apprised of prior discipline matters the grievor had experienced and in particular a demotion in 1987 (Ex. 13) and another charge laid against the grievor in It was Deputy Chief Wilson s opinion it would have been appropriate for Chief Cousineau to have taken

16 - 16 those prior disciplines into account when he decided not to recommend the grievor be reassigned (promoted) to the rank of sergeant to the Police Services Board. It was also Deputy Chief Wilson s opinion that had the grievor filed his grievance in 1995 he would not have been further penalized for having done so. Supt. McClenny testified on behalf of the Police Services Board. Supt. McClenny had been aware of the reduction in rank of the grievor in 1987 at the time he sat as hearing officer. When asked if the penalty imposed in 1993 was fair Supt. McClenny responded that it was recommended by the prosecutor, Ms Phyllis Carlyle, and agreed to by Mr. Murray, the grievor s counsel, and therefore whether or not it was a fair penalty was not in issue. Supt. McClenny acknowledged there exists a considerable difference between evaluation and promotion. On page 13 of these reasons I alluded to Chief Cousineau not being amenable to having the grievor reclassified at the end of the 12 month demotion period but rather intended the grievor re-enter the promotional process. I stated that was not the penalty imposed and I now return to expand on that comment. In para. 2 of Supt. McClenny s June 4 letter to the chief he writes: In order to clarify what is listed under the area of penalty imposed... and, continues in para. 4 to explain he had no intentions of the grievor being reinstated back to the rank of sergeant but rather if he decided to enter the promotional process again certain results might follow. Whether or not Chief Cousineau accepted Supt. McClenny s clarification as forming part of his decision in his refusal to recommend the grievor s promotion to the Police Services Board in his February 22, 1995 response to Deputy Chief Wilson (Ex. 3) is not known as he did not testify. However, in my view, it was a further example of an obligation on the chief to explain his refusal to

17 - 17 accept Deputy Chief Wilson s recommendation. If it was based, in part, on Supt. McClenny s clarification it was without foundation. My reasons are as follows. Supt. McClenny s comments in his June 4 letter to the chief are not statements of clarification but impose additional conditions to the penalty he imposed in his June 3 decision. There is no dispute over the fact Supt. McClenny had jurisdiction to make the decision he made on June 3. He had been appointed the hearing officer to hear the matter and, if he found the grievor guilty of the charges alleged, to impose a penalty. He exercised his jurisdiction and rendered his decision. Once having rendered his decision his jurisdiction as a hearing officer was exhausted unless he expressly retained jurisdiction to perform some further function which means his jurisdiction or task had not been exhausted or completed, but on its face his decision did not reserve jurisdiction for any purpose. Therefore, his jurisdiction was exhausted or as is often expressed in Latin he was functus officio. Functus officio is defined in Sack and Poskanzer, Labour Law Terms A Dictionary of Canadian Labour Law, to mean:... functus officio literally, having discharged one s duty; [a] doctrine holding that, once a decision-maker has rendered a final decision on a matter, he or she is without authority to act further with respect thereto except to correct clerical errors; the doctrine does not prevent an adjudicator from completing his or her decision by dealing with matters left unaddressed, or from expressly retaining jurisdiction with matters left unaddressed, or from expressly retaining jurisdiction for this purpose, nor does it preclude him or her from subsequently explaining the decision, although it cannot be altered or amended; the doctrine is further subject to express statutory provisions which extend a decision-maker s jurisdiction, or which empower the decision-maker to vary or reconsider a prior determination. Supt. McClenny s decision was the imposition of the penalty of Reduction in rank to First Class Constable for a period of twelve months and evaluation to be taken at that time. There is no reference in his decision to having the grievor enter the promotional process again and his comments in his letter of June 4

18 - 18 to Chief Cousineau cannot form part of his decision. If the chief considered Supt. McClenny s June 4 comments as part of his reasons for not recommending the grievor for promotion in his February 22, 1995 letter to Deputy Chief Wilson he erred in doing so. After having had an opportunity to review the evidence and submissions of the parties I am led to the inescapable conclusion the grievor has merit in his claim. He was demoted from the rank of sergeant to first class constable for a period of 12 months. This is a demotion for a finite period which was to conclude at the end of 12 months. There was, however, a caveat placed on the demotion which required an evaluation to be made at that time. Unfortunately, the Police Services Board did not conduct the evaluation until February 1995 notwithstanding the fact the grievor had made several enquiries about having the evaluation performed. When the matter arrived before Deputy Chief Wilson the evaluation was completed without delay. The result of the evaluation was good. Deputy Chief Wilson recommended to the Chief that the grievor be reassigned to the rank of sergeant but as we know the Chief refused to carry that recommendation before the Police Services Board. It was suggested by Counsel for the Police Services Board that it would have been appropriate for the Chief to have taken into consideration the previous two disciplinary matters in reaching his decision. I agree. But there is no evidence he did so. The evidence is clear that the evaluation was a good one and this ought to have satisfied the Chief that the grievor was again entitled to be reassigned to the rank of sergeant. By his decision as communicated to Deputy Chief Wilson he acknowledged the evaluation was a good one but that he was not going to recommend the grievor s promotion. In my view, once Deputy Chief Wilson recommended the grievor s reassignment to the rank of sergeant after having interviewed the grievor and reviewed the evaluations, it was incumbent upon the Chief to offer an explanation as to why he was not going to act on the recommendation of the Deputy Chief. He did not do so for whatever reasons

19 - 19 remain known only to him. The demotion imposed on the grievor is clear. It was for a 12 month period together with an evaluation to be done at that time. The evaluation was not done at that time. That was an obligation placed on the Police Services Board which it failed to carry out. Had the evaluation been carried out on or before June 1994 one can only assume the results would have been similar to the one conducted in February Thus, by continuing the demotion beyond that which Supt. McClenny imposed was without cause and a violation of the collective agreement. Accordingly, the grievance succeeds. The grievor s rank is to be reclassified to that of sergeant effective June 4, 1994 together with all the benefits and salary associated with the rank of sergeant from that date onward. It was agreed between the parties that I remain seized of my jurisdiction to assist the parties in the implementation of this decision should my assistance be required. Dated at Kingston, Ontario, this 18th day of January, C. Gordon Simmons Arbitrator