OPAC 86-016 IN THE MATTER OF THE POLICE ACT R.S.O. 1980, Chapter 381 AND IN THE MATTER OF AN ARBITRATION Between Sudburv Regional Board of Commissioners of Police (hereinafter called the "Board") and Sudburv Regional Police Association (hereinafter called the "Association") AND IN THE MATTER OF GRIEVANCE OF CONSTABLE RAYMOND CAYEN ARBITRATOR; DR. ARJUN P. AGGARWAL Appearances; For the Board; Ms. Paula M. Rusak - Counsel Chief R. J. Zanibbi - Chief of Police Mr. G. Nault - Deputy Chief of Police For the Association; Mr. Robert C. Topp Cst. Brian Insley Cst. Raymond Cayen Cst. L. Kilby - Counsel - President - Grievor - Member The hearing in this matter was held on August 8, 1986, in Sudbury, Ontario.
AWARD The undersigned was appointed on May 12, 1986, "by the Solicitor General, the Honorable Ken Keyes, pursuant to section 33 of the Police Act, R.S.O. 1980, Chapter 381, to hear and determine the differences between the parties relating to the grievance of Constable Raymond Cayen. The hearing in this matter was conducted on Friday, August 8, 1986, in Sudbury, Ontario. The representatives of the parties agreed that the appointment of the arbitrator was properly made under the Act; and that the time limits provided by section 33 of "the Act had been complied with. This arbitration concerns with a grievance filed by the grievor Cst. Raymond Cayen, on December 5. 1985. in the form of a complaint, which reads as follows: Sirs: The writer assumed the duties of A/Sgt. on "D" Platoon as of July 15/85. due to Sgt. McCauley's transfer to Community Relations. On Tuesday, Dec. 3/85. the writer was on Patrol in Cruiser #2, and was advised to come to H.Q. and see the Staff Sergeant. At 09:30 hrs., I was advised by A/Staff Sgt. Ahola that I was being relieved of my duties as A/Sgt., effective Immediately, as per his instructions from Insp. Weston. A/Staff Sgt. Ahola
-3- said that the order was a result of a Memo put out to All S/Sgt's on Nov. 28/85- The writer requested to see this Memo, and same read as follows: Dated - Nov. 28/85 To: From: Subject: All Platoon S/Sgts. Insp. R. Weston Assignments The following officers are to remain on "GENERAL UNIFORM PATROL" until further notice. Any change of assignments is to be made only with the approval of the Chief of Police. Cst. R. Bain #655 Cst. T. Landriault #264? Cst. D. Carter #2298 Cst. M. Thompson #1032 Cst. R. Cayen #626 Cst. D. Bedard #2^98 Thank You Insp. R. Weston. The Writer asked A/Staff Sgt. Ahola if he had any complaints about my work as A/Sgt. in the past and he replied that he was satisfied with the work I'd been doing. However because of Insp. Weston 1 s Order he would have to ask other officers on "D" Platoon, who are qualified, to see if one of them would assume the duties of A/Sgt. even though they were Junior to the writer in Seniority, until Sgt. Condon reports to our Platoon. It has been past practice that the Senior Qualified Constable on a Platoon assume the acting rank, when circumstances so required it. If he refused then the next qualified Officer was approached until someone accepted. The writer feels that he is being discriminated against in this instance, especially when my
immediate Supervisor was satisfied with my work. I would therefore wish to lodge an Official Complaint at this time regarding this matter. The Officers mentioned above in Insp. Weston's Memo were all involved in the Bilecki matter. The writer, who was a witness during Bilecki's Trial, was then already assuming the duties of A/Sgt. and continued as such even after the trial. In Nov/85» the writer and most of the Officers listed in the Memo were also charged under the Police Act relating to Cst. Bilecki's Trial. Because of the action taken "at 09OO hrs., on Dec. 3/85 it would appear that the writer has been found guilty before even going to Trial. The writer would therefore request to be reinstated as A/Sgt. on "D" Platoon until Sgt. Condon reports for duty and the acting rank no longer has to be filled. For your information and Consideration. Respectfully Submitted, Cst. R. Cayen #626 "D" Platoon. The facts in this case are not in dispute and may be stated as follows: The grievor, Cst. Cayen joined the Sudbury Regional Police in 1973 as a result of the amalgamation of the local police forces, pursuant to Regional Government. Prior to
-5- that time, Cst. Cayen had been employed as a police officer with the Copper Cliff Police Department since 1969. Cst. Cayen holds the rank of First Class Constable and has successfully completed the Sergeant's Examinations for the Sudbury Regional Police Department thereabout 1980 or 1981. Since 1980-81, Cst. Cayen has successfully acted as an Acting Sergeant on various occasions. On July 15th, 1985» Cst. Cayen was appointed as Acting Sergeant on "D" Platoon. On November 4, 1985. Acting Sergeant Cayen was charged under the Police Act with three offences in regard to a single incident which had occurred on or about January 22nd, 1984. According to Exhibit #1, the charges were as follows: CHARGE NO. 1 YOU STAND CHARGED WITH; Neglect of duty In that you idled while on duty Contrary to Section 1 (c)(ii) of the Schedule Code of Offences of Ontario, Regulation 791/80 made in pursuance of the Police Act of Ontario, and did thereby commit a Minor Offence.
-6- STATEMENT OF PARTICULARS On Sunday, January 22nd, 1984, you and Constable J. Bilecki #1398, worked from 1^00 to 2^00 hours, assigned to Snowmobile Patrol. During your tour to duty, you and Constable J. Bilecki went to his residence situated at 27 Oja Street, Naughton, in the Town of Walden, and remained there some time, without official consent. CHARGE NO. 2 YOU STAND CHARGED WITH; Consuming intoxicating liquor in a manner prejudicial to duty In that you without consent of a superior or in the discharge of duty, drank intoxicating liquor while on duty. Contrary to Section 1 (i) (iii) of the Schedule Code of Offences of Ontario, Regulation 791/80 made in pursuance of the Police Act of Ontario, and did thereby commit a Minor Offence. STATEMENT OF PARTICULARS On Sunday, January 22nd, 1984, you and Constable J. Bilecki #1398, worked from 1^00 to 2400 hours, assigned to the Snowmobile Patrol. During your tour
-7- of duty without official reason, you visited the residence of Constable J. Bilecki, situated at 27 Oja Street, Naughton, in the Town of Walden, where you drank intoxicating liquor. CHARGE NO. 3 YOU STAND CHARGED WITH; Deceit In that you knowingly made a false statement in an official document or book. Contrary to Section 1 (d) (i) of the Schedule Code of Offences of Ontario, Regulation 791/80 made in pursuance of the Police Act of Ontario, and did thereby commit a Minor Offence. STATEMENT OF PARTICULARS On January 22nd, 198^, you knowingly made a false statement on Sudbury Regional Police Force Uniform Division Activity Sheet #G7 (7/80), in that you entered "1800 to 2100 - Check Simon Lake area, ^ machines checked, 1 warning re minor infraction", when in fact while on duty and without official reason, you were visiting at the residence of Constable J. Bilecki, Situated at 27 Oja Street, Naughton, in the Town of Walden, during those times.
-8- The hearing on these charges was originally scheduled for November 1^, 1985. but on the request of the grievor (to enable him to make an application to the Board) the hearing in this matter was successively adjourned for November 20, November 29 and finally for January 7, 1986. On December 3» 1985. the grievor Cst. Cayen was removed from his duties as Acting Sergeant. On December 5> 1985. the grievor, Cst. Cayen filed the grievance in question against his sudden removal from the position of Acting Sergeant. On January 7. 1986, at the hearing on the Police charges against the grievor, charges 1 and 3 were withdrawn. On the second charge, the grievor entered a "guilty plea." and was sentenced to a loss of one day pay. Approximately one month later the grievor, Cst. Cayen, was re-appointed as an Acting Sergeant and he remained in that position from time to time until just prior to his back injury. The Association has argued that the removal of the grievor from the position of Acting Sergeant on December 3» 1985. was unwarranted and amounted to discipline without just cause. The removal of the grievor from the position of Acting Sergeant, under the circumstances, caused him financial loss and humiliation.
-9- The Board, on the other hand, has contended that the removal of the grievor, Cst. Cayen, from the position of an Acting Sergeant on December 3i 1985 was not a disciplinary action. Rather the grievor was removed from the position of an Acting Sergeant because he could not effectively discharge the duties and functions of a Sergeant while Police Act charges were pending against him. Chief R. J. Zanibbi testified on behalf of the Board and stated that he removed the grievor from the rank of Acting Sergeant on December 3, 1985, pending the outcome of the charges against him. He stated that the charges against the grievor were laid on November k, 1985 and were served to the grievor on November 11, 1985- The hearing date was scheduled for November 1^, 1985 but on the request of the grievor, it was adjourned for November 20, and then November 29, and finally for January 7, 1986. The charges against the grievor were laid by the Deputy Chief Police. He stated that he heard the charges on January 7, 1986; two of the charges were withdrawn and for the third charge the grievor entered a "guilty plea". He was sentenced by forfeiting his one day of pay. Chief Zanibbi further stated that the grievor was eligible to hold the position of Acting Sergeant after January 7, 1986, and he specifically gave instructions to that effect.
-10- Chief Zanibbi also testified that "I did not know that Cst. Cayen was acting as a Sergeant. After I found out that the grievor was an Acting Sergeant I instructed the Deputy Chief that he -be removed from the Acting position". He felt that while the charges were pending his behaviour comes into conflict with the duty of a supervisor. As it was a temporary position, it was decided to remove 'him until the charges were resolved. Further, he stated that "I have the authority to designate people, which means I have the authority to remove them from their position." He explained that the primary role of a sergeant is to supervise the constables which is a management role and in that capacity a sergeant is required to report any neglect of duty on the part of a constable. In cross examination, Chief Zanibbi explained that twelve charges under the Police Act were laid against a single police officer, Cst. Bilecki, who was finally sentenced by reducing him in rank. He stated that (dealing with the charges against Cst. Bilecki, which lead to the charges against the grievor), a statement was taken from the grievor, Cst. Cayen, in this regard. The grievor was a witness and he infact testified in the trial of Cst. Bilecki.
-11- He admitted that the grievor committed no misconduct while acting as a constable or as an Acting Sergeant between July 15, 1985 and December 3, 1985- Further there was nothing wrong with the conduct of the grievor which led to his removal from the position of an Acting Sergeant. Chief Zanibbi stated that he could not explain why there was delay in filing the charges against the grievor. He added that "I joined the-force in February 1985". He explained that the investigations in the matter were ongoing as more than one individual (half a dozen) were involved in it. "I do not know when the investigations against the grievor were concluded." However, he added, that "the investigations against the grievor were concluded prior to the charges against Cst. Bilecki which were laid in June, 1985. Cst. Raymond Cayen testified on his own behalf and on behalf of the Association that he joined the Sudbury District Police Force in 1973 as a First Class Constable on the merger of Copper Cliff. That he had acted as Sergeant on many occasions. He stated that the incident which gave rise to the charges against him took place on January 24, 1984. He was interviewed in this regard on February 13, 1985. He stated that he had told the truth,
-12- admitted the alleged misconduct and filed the report in writing to the Chief of Police, Deputy Chief of Police and Inspector Weston. Cst. Cayen further testified that he has a pretty good work record. In July 15, 1985. he was appointed as an Acting Sergeant on "D" Platoon. He continued to work as an Acting Sergeant until December 3» 1985 when he was removed from that position. He.stated that, he felt bad and humiliated; he thought he was "doing a good job". He then filed the official complaint (grievance) against his removal. In support of her contention the counsel for the Board referred to the following arbitration decision. Re Ontarj.0 Jockey Club and Mutuel Employees' Assn, Service Employees' Int ' 1 Union. Local S28. (1977), 17 L.A.C. (2d) 176 (Kennedy) ; and United Sawmill Ltd, and Lumber and Sawmill Workers Union. (1984), 13 L.A.C. (3d) 1^1 (Swan). In Re Ontario Jockey Club and Mutuel Employees' Association, Service Employees' International Union, Local 528 (1977), 17 L.A.C. (2d) 176 (Kennedy), the Board of Arbitration dealing with the issue of suspension of an
-13- employee while criminal charges are pending stated at pp 178-179: The better opinion would appear to be that the employer's right to suspend where an employee has been charged with a criminal offence must be assessed in the light of a balancing of interests between employer and employee. The employee, of course, has a legitimate interest in being considered innocent until he has been proven guilty.!., however, the alleged offence is so related to the employment relationship that the continued employment of the employee would present a serious and immediate risk to the legitimate concerns of the employer as to its financial integrity, security and safety,of its property and other employees as well as its public reputation, then indefinite suspension until the charges have been disposed of would appear to be justified. In determining the nature of the legitimate interests of the employer, it is necessary to look at the nature of the offence, the work being performed by the employee, and the nature of the employer's business....the board has carefully considered the cases to which we were referred and from those cases, we would extract the following general principles: 1. The issue in a grievance of this nature is not whether the grievor is guilty or innocent, but rather.whether the presence of the grievnr as an employee of the company pan be considered to pjresent a reasonably SHrrous and Immediate risk to the legitimate concerns of the employer. 2. The onus is on the company to satisfy the board of the existence of such a risk and the simple fact that a criminal charge has been laid is not sufficient to comply with that onus. The company must also establish that the nature of the charge is
such as to be potentially harmful or detrimental or adverse in effect to the company's, reputation or product or that it will render ' the employee unable properly to perform his duties or that it will have a. harmful effect on other employees of the company or its customers or will harm the general reputation of the company. 3. The company must show that it did, in fact, investigate the criminal charge to the best of its abilities in a genuine attempt to assess the risk of continued employment. The burden, in this area, on the company is significantly less in the case where the police have investigated the matter and have acquired the evidence to lay the charge than in the situation where the company has initiated proceedings. 4. There is a further onus on the company to show that it has taken reasonable steps to ascertain whether the risk of continued employment might be mitigated through such techniques as closer supervision or transfer to another position. 5«There is a continued onus on the part of the company during the period of suspension to consider objectively the possibility of reinstatement within a reasonable period of time following suspension in light of new facts or circumstances which may come to the attention of the company during the course of the suspension. These matters, again, must be evaluated in the light of the existence of a reasonable risk to the legitimate interests of the company. (Emphasis added) It must be recognized that in the instant case, we are dealing with an employer who is none other than the Board of Commissioners of Police and the employee is a police officer. Generally a charge of any sort against a police officer is alarming and may be apparently damaging to the reputation of the employer, if the charges are
-15- of public knowledge. The Chief of Police, under these circumstances, is likely to protect the reputation of the department by disassociating the officer from the force until the matter is cleared. In the instant case, the incident of misconduct which gave rise to the charges against the grievor, admittedly took place in January 1984-. The Employer knew of the incident at least since February 1^, 1985t when the grievor submitted a written report on the incident to the Chief of Police, Deputy Chief of Police, and Inspector Weston. But, apparently no action was taken against the grievor at that time. However, a departmental investigation against the grievor was launched sometime in February 1985; and that investigation, according to Chief Zanibbi, ended sometime in June 1985- He testified that "investigations against the grievor were concluded prior to the charges aginst Cst. Bilecki which were laid in June 1985-" The findings of that investigation were not made known to this tribunal. Nonetheless, it is clear that no action was taken against the grievor on the conclusion of the investigations in June 1985- Rather, soon after the investigations, the grievor was appointed as an Acting Sergeant to "D" Platoon on July 15, 1985.
-16- The question then arises, if the alleged charges ' against the grievor were serious to the extend that they would interfere in the performance of the duties and functions of an Acting Sergeant, why was he appointed to that position in the first place. The Board has failed to provide any satisfactory explanation in this regard. Thus, the inference is obvious that when Chief Zanibbi, after the conclusion of the investigations against the grievor, appointed him to the position of an Acting Sergeant, he must have concluded that the misconduct in question was not serious enough to debar him from the position of Acting Sergeant, and that it would not interfere with his work performance as an Acting Sergeant. Moreover, Chief Zanibbi confirmed that he neither had heard of any complaint against the grievor 1 s work performance as a constable (prior to July 15, 1985) nor as an Acting Sergeant (during the period from July 15 to December 3, 1985). The Counsel for the Board has argued that the basic reason for the grievor's removal from the position of an Acting Sergeant was that he could not effectively discharge the duties and functions of an Acting Sergeant while the Police Act charges were pending against him. However, the Board adduced no evidence, whatsoever, to show that the charges against the grievor interfered with the performance of his duties as an Acting Sergeant. Rather, as stated earlier, Chief Zanibbi testified that he had no complaint
-17- against the grievor 1 s work performance as an Acting Sergeant. The grievor, as a matter of fact, successfully discharged the duties and functions of an Acting Sergeant after the charges were laid against him for about a month from November k, to December 3> 1985* Thus, if the grievor could (as he did infact) effectively discharge the duties and functions of an Acting Sergeant from November ^, to December 3, there is no reason to believe that he could not function effectively for the rest of the period until the disposal of the charges. The situation, perhaps, would have been different had the Chief removed the grievor from the position of Acting Sergeant simultaneously on November ^, when formal charges were laid against him. According to the Board, Chief Zanibbi did not know that the grievor, Cst. Cayen, was working as an Acting Sergeant until the 2nd or 3rd of December 1985 and as soon as he came to know of it he ordered that the grievcr be removed from the position of Acting Sergeant. It may be factually true, but I am afraid, I find it difficult to accept on the face of the record that the grievor was appointed to the position of Acting Sergeant on July 15, 1985 by Chief Zanibbi or his designee. Chief Zanibbi, according to his own testimony, had joined the Sudbury Regional Police Force in February 1985, and thus it must be presume.d that he knew or should have known of the appointments made by
-18- him or on his behalf, after February 1985. If Chief Zanibbi, infact, did not know, as he testified, that the grievor was working as an Acting Sergeant until the 2nd or 3rd of December, then unfortunately he was a victim of communication failure at the senior management level. I see no reason to penalize the grievor for that. It is not known whether the Police charges against the grievor were of public knowledge or not. However, if they were of public knowledge, there is no evidence, whatsoever, of public indignation in this regard. If the charges were not of public knowledge then the question of the employer's reputation or public image does not arise. Moreover, the charges against the grievor were for a "minor offence". According to Chief Zanibbi, two out of the three charges were withdrawn by the Department and for the third charge, the grievor entered a."guilty plea". The Chief imposed the penalty of "one day pay". Chief Zanibbi testified that "one day pay" was a fair and reasonable penalty for such an offence. Further, he stated that there was no reason to deny the grievor an opportunity for future appointment to the position of Acting Sergeant. Infact, he stated that he immediately issued the instructions for his appointment as an Acting Sergeant; and approximately one month later he was appointed as an Acting Sergeant.
-19- Therefore, in my opinion, the decision to remove the grievor, Cst. Cayen.from the position of Acting Sergeant was unnecessary and, in all circumstances, improper. However, I wish to make it clear that I do not find the decision to remove the grievor from the position of Acting Sergeant was either hostile, ulterior, or in bad faith. On the contrary, Chief Zanibbi was considerate and sympathetic towards the grievor. It appears that the Chief was a victim of his own understandable but mistaken course of action. Having regard to the evidence, the arguments of the parties and for the foregoing reasons, I am of the opinion that the grievor, Cst. Cayen, should be reimbursed for the difference between the pay of an Acting Sergeant and that of a First Class Constable for the period that the position (previously held by the grievor) continued after December 3» 1985«I will remain seized of the matter for the purpose of assessing compensation in the event that the parties are unable to agree. I wish to thank the representatives of the parties and counsel Ms. Paula M. Rusak and Mr. Robert Topp, for their able presentations and for the courtesy and assistance they have extended to me.
-20- Dated at Thunder Bay, Ontario, this 2nd day of September, 1986. Arjun P - Arbitrator