IN THE MATTER OF AN ARBITRATION SAULT STE. MARIE POLICE SERVICES BOARD. - and - SAULT STE. MARIE POLICE ASSOCIATION

Transcription

1 IN THE MATTER OF AN ARBITRATION B E T W E E N: SAULT STE. MARIE POLICE SERVICES BOARD (The Board ) - and - SAULT STE. MARIE POLICE ASSOCIATION (The Association) AND IN THE MATTER OF THE GRIEVANCE OF CONSTABLE RON PREMO CONCERNING ARTICLE 13 OF THE COLLECTIVE AGREEMENT David K.L. Starkman Arbitrator APPEARANCES FOR THE BOARD Victoria Chiappetta Counsel Robert Davies Chief of Police Spence Coutu Inspector Maret Kaldma Staff Sergeant Pat Mick Police Services Board Judge Greco (retired) Police Services Board APPEARANCES FOR THE ASSOCIATION Hugh MacDonald Counsel Trevor Simpson Student-at-Law Gerrard Rooney Association Rodney Burrows Association

2 A Hearing in this matter was held on February 13, 2006 at Sault Ste. Marie, Ontario. AWARD This award concerns the grievor s entitlement to be paid for his attendance at a Police Services Act (the Act ) hearing on March 31, and April 1, 2003, and also concerns the Board s preliminary objection as to the timeliness of the request for the appointment of an arbitrator under the Act. In September, 2002, the grievor, was charged with insubordination pursuant to the Act. The first appearance was on Tuesday October 15 th at 11:00 a.m. There was a second appearance on October 30 th whereat March 17, and 18, 2003 were set for hearing the merits of the charge. In November, 2002 Mr. Chorney, the grievor s lawyer, wrote to Mr. Pawelek, the prosecutor, as follows: As you know, a two (2) day hearing before the Hearings Officer has been scheduled for March 17, and 18, I have discovered that those are the two (2) days in which the Ontario Court of Justice sits in Wawa, Ontario and neither you nor I will be able to attend. There is one trial scheduled for Tuesday, March 18, 2003.

3 3 I believe that one of us should be in Wawa on that date and for that reason, I would ask that you consent to this hearing being rescheduled to some time the following week or very shortly thereafter. I have many available days. Please let me know concerning the rescheduling. Yours truly, Wayne Chorney Mr. Pawelek responded to Mr. Chorney in correspondence dated November 22, 2002: We acknowledge receipt of your letter dated November 20 th, 2002 relative the above noted matter. We have no objection to re-schedule the hearing presently set for March 17 th and 18 th, Subject to the Hearing Officer and your availability, may we suggest Thursday, March 20 th and Friday, March 21 st, failing that Monday, March 31 st and Tuesday, April 1 st. It would be appropriate for you to make the initial contact with the Hearing Officer to advise him of the situation Yours truly Martin Pawelek Constable Premo attended a hearing/meeting on December 17, 2002 in which he confirmed that he was requesting that the hearing of the charges be put over until March 31, and April 1, 2003 and the hearing was then adjourned to

4 4 those dates. Constable Premo attended at the hearing on March 31 st and April 1 st. He was not scheduled to work the day shift on those days and accordingly was not paid for his attendance. He subsequently filed a grievance alleging a violation of article of the collective agreement. The relevant provisions of the collective agreement provide as follows: A member charged with and subsequently acquitted of a criminal or statutory offence arising out of acts committed in the performance in good faith of the member s duties as a Police Officer or as a result of being a member of the Police Service shall be entitled to the provisions outlined in Article In the event of a hearing conducted under the Police Services Act and where the Chief of Police has control over the hearing dates, all reasonable attempts will be made to have the hearing scheduled on time where the subject officer is scheduled to work day shift. Consideration will also include changing the subject officer s schedule to day shift providing the Service is able to meet adequate staffing levels. PRELIMINARY ISSUE OF TIMELINESS This grievance, alleging a violation of section of the collective agreement, was submitted by the grievor in April, In correspondence dated July 10, 2003 Mr. Robert Davies, the Chief of Police, denied the grievance. Thereafter, in September, 2003 the Police Services Board denied the grievance. In June, 2004

5 5 the Chief of Police wrote to Mr. Don Simbirski, the President of the Sault Ste. Marie Police Association, concerning the status of a number of grievances, and stated that unless he heard to the contrary, he was assuming the Association concurred that Mr. Premo s grievance had been abandoned. The Association did not respond to the correspondence. In November, 2004 the Association requested the Appointment of a Rights Dispute Conciliator under section 122 of the Act. The matter was not resolved and in May, 2005 the Association requested the appointment of a Rights Dispute Arbitrator under section 124 of the Act. Counsel for the Board reviewed the history of this matter. She acknowledged that there were no time limits specified in the Act for processing grievances but submitted that more than eighteen months had elapsed between the filing of the grievance in April, 2003 and the request for the appointment of a conciliation officer in November, There was no satisfactory explanation offered by the Association for the delay, and this Board of Arbitration should exercise its discretion and refuse to consider the matter because it was not processed in a timely manner. Reference was made to the decisions in Re Corporation of City of Thunder Bay and Canadian Union of Public Employees, Local 87, (1991) 20 L.A.C. (4 th ) 361 (G.J. Charney), Re Helen Henderson Care

6 6 Centre and Service Employees Union, Local 183, (1992) 30 L.A.C. (4 th ) 150 (J.E. Emrich), Re Kitchener-Waterloo Hospital and London & District Service Workers Union, Local 220, (1994) 44 L.A.C. (4 th ) 293, Re Exolon-Esk Co. of Canada Ltd. and Communications, Energy & Paperworkers Union, Loc. 36-0, (1993) 37 L.A.C. (4 th ) 430 (P. Haefling), Re Hotel-Dieu Grace Hospital and Ontario Nurses Association, (1995) 47 L.A.C. (4 th ) 66 (M.V. Watters), Re Ottawa Board of Education and Canadian Union of Public Employees, Local 1400, (1990) 13 L.A.C. (4 th ) 170 (H.D. Brown), Re Bakery Glaco Inc. and Canadian Automobile Workers, (1991) 21 L.A.C. (4 th ) 116 (J.D. O Shea), and Winnipeg and Winnipeg Police Assn. [1993] 30 C.L.A.S. 40. These decisions essentially discuss when an Arbitrator, in non-police grievances, should exercise their authority under the provisions of the Labour Relations Act to extend time limits. Invariably this involves a weighing of the prejudice to the Employer caused by the delay or missed time limit, and the reasons offered by the Union for the delay. The Association noted that the Board was not claiming any prejudice as a result of the delay and submitted that, as a general rule, the hearing should proceed unless there was substantial prejudice rendering a fair hearing impossible. Reference was made to another arbitral decision between these parties dated October 14, In that matter the grievance was filed on February 18, 2003 and the Association requested the appointment of a conciliator on November

7 7 8, The Board submitted that the grievance should be dismissed because of the excessive delay in pursuing the matter. In dismissing the motion, Arbitrator Trachuk stated at pp. 6-7: There are no time limits in the Act and there are also no Rules of Procedure etc. which require a request for conciliation to be filed expeditiously. Furthermore, there is no jurisprudence setting out what kind of delay might be considered unreasonable and lead to a matter being dismissed. None of the cases decided by arbitrators under the Act dismissed a grievance or dispute because of the delay in forwarding the difference to conciliation. However, the decisions generally do contemplate that an arbitrator under the Act might have the discretion to dismiss a matter referred to her for delay if the delay was extreme and if there were real and substantial prejudice to the other party......the relevant period of delay is therefore between February 2004 and November, Nine months is still a very significant delay. Effective labour relations usually requires the swift resolution of disputes and waiting for nine months before proceeding with this matter was not consistent with that requirement. Therefore, if there had been evidence of prejudice before me I might have declined to proceed with this matter. However, there is no evidence of prejudice and in the absence of any statutory time limits or even any jurisprudence providing context to the Association as to what kind of delay might be unacceptable I will not decline to adjudicate the rights dispute between these parties... The Board also argues that it could reasonably have assumed the Association abandoned the grievance when it did not reply to the Chief s letter of June The Chief did not provide a date by when he expected an answer if the Association was still pursuing the grievance so it is unclear at what point he understood it to be abandoned. In any case, the Association did not abandon the matter. The Board s perception that the matter had been abandoned would only be relevant if it took some action as a result of that understanding which resulted in prejudice to itself. There is no claim that it did so.

8 8 Reference was also made to the decisions in The Metropolitan Toronto Board of Commissioners of Police and The Metropolitan Toronto Police Association, unreported, November, 1985 (M.K. Saltman), Board of Commissioners of Police for the City of Belleville and The Belleville Police Association, Grievance of E.A. Noseworthy, unreported, November 7, 1989 (P.G. Barton), Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association, Grievance of Staff Sergeant W. Death, unreported, November, 1984 (M.G. Picher), The Perth Police Services Board and The Perth Police Assocaiton, unreported, February, 2001 (D.K.L. Starkman), and Waterloo Regional Police Services Board and Waterloo Regional Police Assocaiton, Grievance of Kristy O Reilly, unreported, April, 1998 (P. Haefling). All of the above cases declined to dismiss a grievance because of delays in processing under the Act, essentially because the various Police Service Boards had not established that they had suffered any prejudice as a result of the delay. In this matter there has been a delay of seventeen months. The Association offered reasons for the delay which essentially indicated the heavy workload of the Association s executive administering the collective agreement, and the considerable number of meetings between February, 2003 and November, This however does not adequately explain why they did not have the

9 9 time in those months to file a simple one or two page application. On the other hand, there are no time limits in the Act, and the Board has not alleged any prejudice as a result of the delay. The Board is clearly frustrated that the Association waited so long to pursue the matter and counsel for the Board has asked for some guidance as to when a delay will be held to be unreasonable. In my view, a delay may be unreasonable when an inordinate length of time has passed, and the Board alleges some prejudice as a result of the delay, and the Association cannot offer a compelling reason explaining the delay. In these circumstances an arbitrator would have to weigh the prejudice suffered, against the reasons offered by the Association for the delay. It is not the passage of time per se which is the prejudice. Rather it is the effect on the Board of the passage of time that is significant. Inherent in any grievance and arbitration process is the recognition that there will be some reasonable passage of time between the filing of a grievance and the arbitration hearing. The longer the passage of time however, and considering the nature of the grievance, the more willing an arbitrator might be to consider, and to give effect to, the prejudicial effects on the Board such as the unavailability of witnesses, lapses in memory, the loss of an opportunity to bargain with respect to the particular matter, budgetary considerations and the impact of proceeding on the relationship between the parties. Absent any allegation or evidence of

10 prejudice however there is no need to embark on this inquiry. 10 This grievance primarily involves an interpretation of the provisions of the collective agreement and the facts are straightforward. The Board is not alleging any prejudice resulting from the delay in pursuing this matter. Accordingly, the Board s preliminary motion is denied, and I will proceed to determine the merits of this dispute. THE MERITS OF THE DISPUTE Constable Premo testified that he had no input into the selection of the initial appearance date of October 15. He had been scheduled to work day shift that day and was paid for the day. His next appearance was October 30, He was scheduled to work day shift that day and was paid for the day. The dates initially scheduled for the hearing were March 17, and 18, The grievor indicated that he had no input into the selection of those dates, and that he was not scheduled to work the day shifts, as these were scheduled days off. The grievor indicated that he was not consulted when the dates of March 31, and April 1, 2003 were eventually set for the Police Service Act hearing. He was

11 11 not scheduled to work the day shift on either of the days. He stated that the Chief was in charge of scheduling and that when it became apparent that he was not scheduled to work the day shift on those days, the Chief should have changed his schedule. He confirmed that the did not tell his lawyer that he was not scheduled to work the day shift on March 31, or April 1, 2003 and that he did not request the Chief to change his schedule. Staff Sergeant Kaldma testified that she sets up the initial hearing dates for charges under the Act and that she chooses a day shift when the officer is working and as necessary is involved with the scheduling of further dates. With respect to the dates of March 17, and 18, 2003 Staff Sergeant Kaldma indicated that they could not find back to back dates when the grievor was scheduled to work day shifts, and which were otherwise suitable to all concerned, and that Mr. Chorney, the grievor s lawyer, advised that March 17, and 18, were suitable. She also stated that officers can and have requested a change in dates because they are not scheduled to work days, but that no such request was received from the grievor or his lawyer. If she had received such a request, the days would have been changed to days when the grievor was otherwise scheduled to work the day shift. The Association submitted that it was the Chief s function to schedule the

12 12 hearings, and he could have, and should have, scheduled the hearing for days when Constable Premo was scheduled to work day shifts. In its view, the purpose of article was to minimize premium pay by having hearings scheduled for day shifts, not to force an officer to attend a hearing after working a night shift and not to be paid for the attendance. The Association also make submissions concerning article 13.08, which, in its view, was not applicable because allegations of misconduct under the Police Services Act were not criminal or statutory offences but were more in the nature of civil penalties. As such, the grievor was not disentitled from receiving the benefits of article even though he was convicted of an offence under the Act. The Board submitted that articles and should be read together. In its view charges under the Police Services Act were statutory offences. Article only entitled an officer to the provisions of article if they were acquitted of a statutory offence, and insofar as the grievor was convicted he had no such prima facie entitlement. Secondly and in any event, article is not mandatory, and only obligates the Chief to attempt to have the hearing scheduled when the subject officer is otherwise scheduled to work day shift.

13 13 Article raises the issue of whether charges under the Act are statutory offences. If they are then the grievor is arguably not entitled to the benefits set out in Article because he was convicted of a statutory offence. In Trimm v. Durham Regional Police [1987] 2 S.C.R. 582, the appellant had been charged with two offences contrary to the Police Services Act. The matter proceeded to a hearing before Deputy Chief Robinson. Mr. Trimm s lawyer objected to the manner of proceeding as being in violation of s. 11(d) of the Charter as it violated his right to a hearing by an independent and impartial tribunal. This issue was considered by the Ontario Court of Appeal (1986), 55 O.R. (2d) 570 which concluded at p. 583 that offence means an offence which is prosecuted in a criminal or penal proceeding. At p. 589 Morden J.A. for the Court stated: In my view, a Police Act discipline proceeding is not a criminal or penal proceeding within the purview of s. 11. The most serious consequence that can befall a police officer in such proceedings is the loss of his or her position and, while I do not minimize the seriousness of this consequence, it is a civil consequence and not punishment of a criminal nature. A police discipline matter is a purely administrative internal process. Its most serious possible consequence makes it analogous to a discipline matter in ordinary employer-employee relationships, even though the procedure governing it is clearly more formal. The basic object of dismissing an employee is not to punish him or her in the usual sense of this word (to deter or reform, or, possibly, to exact some form of modern retribution) but rather, to rid the employer of the burden of an employee who has shown that he or she is not fit to remain an employee.

14 14 This decision was appealed to the Supreme Court of Canada which dismissed the appeal. It agreed that charges under the Act are neither criminal in nature nor do they involve penal consequences, and quoted approvingly from the decision in Colledge v. Niagara Regional Police Commission (1983), 40 O.R. (2d) 340, at p. 342 (Div. Ct.): The principal aspects of the proceedings at bar fall entirely within the ambit of internal disciplinary proceedings inside the police force. The duty sought to be enforced in the present proceeding is a duty which arises directly under the code of police conduct laid down in the Police Act. The matters involved in the proceedings are accordingly matters essentially of a private nature between the officer and his superiors. It has been determined by the Supreme Court that charges under the Police Act, are not criminal or statutory offences, but are more analogous to civil or disciplinary proceedings in an employer-employee relationship. In my view, the parties to this collective agreement have recognized this as well, which is why they have included article to make specific provision to endeavour to schedule hearings of charges under the Act on days when the officer is scheduled to otherwise work day shifts, so that he can be paid his regular wages. This is separate and distinct from the other provisions of article 13 which deal primarily with the payment of officers for attending Court.

15 15 Accordingly, I have determined that article 13.08, and the fact of the grievor s conviction, does not preclude him from pursuing a grievance for compensation for a violation of article Article requires the Chief to make all reasonable efforts to schedule hearings under the Act where the Chief of Police has control over the hearing dates. Thus, the initial date of October 15, 2002 and the subsequent date of October 30, 2002 were both scheduled by Staff Sergeant Kaldma on dates where the grievor was otherwise scheduled to work day shift, and the grievor received regular pay for those appearances. The dates of March 17, and 18, 2003 and the subsequent dates of March 31, and April 1, 2003 were agreed to by the grievor or his lawyer. The evidence indicates that after October 30, the Chief no longer had the direct responsibility for the scheduling of dates. This was left to Mr. Pawelek, the prosecutor, and Mr. Chorney, the grievor s lawyer who, on behalf of their respective principals, arranged the dates and advised Staff Sergeant Kaldma, of their decision. Thus I have concluded that, when the March 31 st and April 1 st dates were arranged, the Chief did not have control over the setting of the dates, but had delegated this responsibility to the grievor and the prosecutor to establish dates that were

16 16 satisfactory to all concerned, and to advise the Chief, through Staff Sergeant Kaldma, of their decision. Article provides that consideration will be given to changing an officer s schedule to day shift providing the Service is able to meet adequate staffing levels. At the time that the dates of March 31, and April 1, 2003 were agreed to, the grievor was aware that he was not scheduled to work the day shifts. He did not request that he be re-scheduled nor did he request a change of the dates. The Chief is the person charged, prior to making a scheduling change, with the responsibility of determining whether adequate staffing levels can be met, and he would have had to make this determination if the grievor had requested a change in his schedule to day shift. In circumstances however, where the grievor has consented to the hearing has been scheduled on days when he is not scheduled to work day shifts, and when no request is made of the Chief or Staff Sergeant Kaldma to change the grievor s schedule to day shift, it is not reasonable that the Chief should make inquiries about changing the grievor s schedule, nor is it reasonable, in these circumstances for the Board to have to pay the grievor premium pay for those hearing dates. This is what article was intended to avoid. I therefore find that there has been no violation of the provisions of the

17 17 collective agreement and the grievance is dismissed. Dated at Maberly, Ontario this 21 st day of March, 2006 David K.L. Starkman