Award Number 00-015

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Award Date:	2000-12-02
Arbitrator:	Jackson, R. View awards by Jackson, R.
Municipality:	Durham Region View awards from Durham Region
Region:	Central View awards from Central
Classifications:	Arbitrability, Discrimination, Disciplinary Action, Management Rights
Grievor:	P.C. Peter Watts
Appearances:	M. Doane, for the Association B. Stewart, P. Broad and others, for the Employer
Length of Award:	18 pp
Collective Agreements Cit.	Appendix C; Art. 5, 31, 30, 19, 14, 21, 4
Statutory Cit.	Police Services Act ss. 123(1), 124 (1), 124(2), 22(1), 25(1), 128, 126, 64(17)

Summary

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Arbitrability   - Collective agreement limitations - Uniform members - Grievance alleging "harassment, intimidation and discriminatory and arbitrary treatment" with intent of forcing grievor to resign - Matters not covered under collective agreement - Grievance inarbitrable.

Discrimination   - Harassment - Uniform members - Grievance alleging harassment - Matters not covered under collective agreement - Grievance inarbitrable.

Disciplinary Action   - Standard of review - Uniform members - Grievor alleged concerted program of harassment amounted to unjust discipline - Management rights clause providing claims of discipline without reasonable cause subject to "inquiry" in accordance with Police Services Act - Even if Board's actions constituted discipline, matter not arbitrable under collective agreement.

Management Rights   - Scope of arbitral review - Uniform members - Grievance alleging harassment, intimidation, discriminatory and arbitrary treatment - Collective agreement containing no general duty of fairness - Some allegations concern matters not covered under collective agreement - Tenuous connection between remaining allegations and collective agreement - Applying Weber test, dispute not arising out of collective agreement - Grievance inarbitrable.

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Facts

The grievor claimed that from 1995 onwards he had been subjected to "a concerted program of harassment, intimidation and discriminatory and arbitrary treatment." The Association brought 16 allegations/particulars, involving, among other matters, improper disclsoure of information about the grievor to the press and members of the force; assigning restricted duties; assigning the grievor to hazardous duties without a weapon; denial of Acting Sergeant duties and overtime; shift changes; failure to do performance reviews; and forcing the grievor to use sick leave.

Article 5 (Management Rights) provided: The Association acknowledges that it is the exclusive function of the Board to: Maintain order and discipline, promote, demote or discipline members, provided that a claim of discriminatory promotion or demotion, or a claim that a member has been discharged or disciplined without reasonable cause, may be subject to an inquiry in accordance with the Police Services Act and amendments thereto, supervise and administer the affairs of the Durham Regional Police Service.

Argument

The Board took the position that the grievance was inarbitrable because the matter wasn't covered under the collective agreement.

The Association argued that s. 124(2) of the Police Services Act provided the grievor with an absolute right to have his grievance heard on the merits, even if the Arbitrator ultimately found he was without jurisdiction. The Association argued that the Board's actions amounted to unjust discipline, which could be dealt with under Art. 5. Finally, the Association maintained that the allegations of bad faith, etc. conferred jurisdiction.

The Board disputed the Association's argument as to the effect of s. 124(2). Regarding the discipline argument, the Board countered that allegations of unjust discipline had to be dealt with under s. 25 of the Police Services Act. With respect to the issue of the exercise of management rights, the Board argued that the collective agreement contained no general duty of fairness.

Award #

The Arbitrator held that s. 124(2) conferred an absolute right to refer a grievance to arbitration, notwithstanding defects in the grievance procedure; it did not change the definition of "grievance." If the grievor's complaint wasn't properly a grievance, there was no statutory right to arbitration on the merits.

Concerning the unjust discpline/constructive dismissal argument, the Arbitrator found that Art. 5 stipulated that complaints of unjust discipline were subject to an "inquiry" in accordance with the Police Services Act. The plain meaning of "inquiry", especially in the context of the reference to the Act, was a referral to OCCOPS under s. 25 or s. 22 of the Act. So the Board's actions, even if they amounted to discpline, were inarbitrable under Art. 5.

As for the discriminatory, etc. exercise of management rights, the Arbitrator concluded from a reading of the case law that "...there is no general duty of management fairness that arbitrators can read into a collective agreement" (at p. 9). The collective agreement at issue contained no explicit requirement that the Board exercise its rights fairly. Turning to the specific allegations, the Arbitrator could find no linkage with the collective agreement for most of them (e.g. disseminating information, assignment to restricted duties), and for others, he found a "tenuous" linkage at best (e.g. refusal of acting duties, overtime, firearm). Moreover, even for those allegations that did touch on matters referred to in the agreement, proof of a violation would impose a significant hurdle.

Applying the test posited by the Supreme Court of Canada in Weber v. Ontario Hydro (125 D.L.R. {4th} 583), the Arbitrator found that the essential character of the dispute had to do more with "police" matters than with "police labour relations" matters. Weber speaks of the need for a review of the ambit of the collective agreement as well as a determination of the "essential character" of the dispute. The Arbitrator observed that collective agreements for uniform officers were typically limited in scope, as they exclude a whole range of matters that are considered standard subjects in collective agreements from other sectors. This collective agreement was just as or even more restricted in ambit than other Ontario uniform agreements, since it didn't contain an "add-on discipline" provision pursuant to s. 64(17) of the Police Services Act.

As for discriminatory treatment, Art. 4 of the collective agreement defined "discrimination", but only in terms of a member's connection with the Association (not applicable here). Even if the Board's actions were viewed as harassment, the Board's harassment policy was an employer policy outside the agreement.

In summary, the Arbitrator held that the grievance in its essential character arose outside the ambit of the collective agreement. Instead, it belonged "under the dominion of police professionals" (p. 17). Therefore he upheld the Board's preliminary objection and declined jurisdiction.

Authorities Cited

* Webster's Ninth New Collegiate Dictionary and Oxford English Reference Dictionary, meaning of "inquiry" and "arbitration"
* Re Council of Printing Industries and Printing Pressmen, 149 D.L.R. (3d) 53
* Re Metropolitan Toronto and C.U.P.E., Local 43, 69 D.L.R. (4th) 268
* Re Bridge Steel Inc. v. U.S.W.A., Local 3345 [1990] 98 A.R. 9
* Weber v. Ontario Hydro, 125 D.L.R. (4th) 583

** Selected for publication in Labour Arbitration Cases.

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