Numéro de sentence arbitrale 01-030

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Award Date:	2001-11-01
Arbitre:	Adams, G. Voir les prix par Adams, G.
Municipalité:	Toronto Voir les prix а partir de Toronto
Région:	Central Voir les prix а partir de Central
Classifications:	Transfer, Defamation, Discrimination, Disciplinary Action
Plaignant:	D.T. Girdlestone
Comparutions:	K.D. Sherkin, for the Grievor, pour l'Association M.A. Hines, for the Employer, pour l'employeur
Longueur:	73 pp
Référence conventions collective	Art. 3.01(b)
Référence législative	Police Services Act; Ontario Human Rights Code; Canadian Charter of Rights and Freedoms

Sommaire

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Transfer   Involuntary transfer - Uniform members - Grievance claiming improper and discriminatory transfer - Grievor’s partnership was ended and he was subsequently transferred out of Sexual Assault Squad - Grievor alleged he was transferred because he complained about harassment from supervisor - Partnership reassignment was for legitimate management/operational reasons - Grievor transferred because of his unacceptable treatment of officer he was assigned to train, following his insubordinate and insulting treatment of supervisor - Transfer reasonable and not discriminatory - Grievance dismissed.

Defamation   Uniform members - Grievance alleging improper transfer joined with claims of defamation, conspiracy to injure and constructive dismissal - Grievor’s partnership was ended and he was subsequently transferred out of Sexual Assault Squad - Transfer reasonable and not discriminatory - Management had bona fide concerns aboutgrievor’s wellness and emotional stability - Communications with medical services arose from managers’ honest beliefs - Content of communications substantially correct and could not reasonably be perceived as defamatory - Words protected by qualified privilege and privilege not forfeited by malice - Defamation not established - Grievance and claims dismissed.

Discrimination   Harassment - Uniform members - Grievance alleging improper transfer joined with claims of defamation, conspiracy to injure and constructive dismissal - Evidence not establishing that ending of grievor’s partnership and transfer out of Sexual Assault Squad were motivated by his complaint of harassment against supervisor or by management conspiracy to portray grievor as “crazy” - Grievor’s own actions put his wellness in issue - Allegations of harassment and conspiracy to injure not established - Contents of grievor’s file and removal of firearm would not have harmed his career - Grievance and claims dismissed.

Disciplinary Action   Discharge versus resignation - Uniform members - Grievance alleging improper transfer joined with claims of defamation, conspiracy to injure and constructive dismissal - Transfer reasonable and not discriminatory - Claims of defamation and conspiracy to injure not established - Grievor voluntarily resigned - Timing motivated by pension considerations - No reliable evidence to support allegation that terms and conditions of employment were manipulated to cause a de facto termination - Claim of constructive dismissal not established.

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Réalités

David Girdlestone filed a grievance on July 29, 1997 alleging that he was transferred in a discriminatory manner without reasonable cause, contrary to Article 3.01(b) of the collective agreement. On April 6, 1999 he commenced a lawsuit, naming the Toronto Police Services Board, Joseph Hunter, Dr. Eric Rumack, Michael Boyd, Kenneth Cenzura, Kim Derry and John Brown as defendants. By minutes of settlement dated November 18, 1999 the parties agreed that the issues and allegations in the lawsuit would be joined with and become part of the transfer grievance. The lawsuit sought $5,000,000 for conspiracy to injure and defamation, $1,000,000 in special damages and $2,000,000 in punitive damages. Girdlestone also filed a complaint with the Ontario Human Rights Commission. On February 14, 2001 the HRC found that the complaint was more appropriately dealt with as a grievance under the Police Services Act. The statement of claim in the lawsuit alleged that Cenzura, Derry, Brown and Rumack conspired to undermine Girdlestone’s relationship with the Toronto Police Services Board and besmirch his reputation as an officer, by: • Disseminating information that he was not mentally fit to carry his service revolver; • Taking away his service revolver without justification; • Transferring Girdlestone from the Sexual Assault Squad (SAS) without justification; • Continually disparaging Girdlestone; • Disseminating falsehoods that Girdlestone had been involved in a domestic dispute; and • Intentionally breaching the Police Services Act, the Ontario Human Rights Code and the Charter of Rights and Freedoms. The statement of claim identified reasons for the alleged conduct: • To discredit Girdlestone and dissuade him from pursuing complaints relating to the SAS; • To induce him to resign; • To delay Girdlestone’s complaint from becoming public until after the “Jane Doe” trial, since the allegations would have a serious impact on the credibility of the officers involved in that trial. Particulars of the alleged defamation included: that Derry and Cenzura reported they were concerned about Girdlestone’s mental stability; Derry reported Girdlestone as “foaming at the mouth” during a meeting; Derry also reported that Girdlestone was under the care of Board psychiatrist Peter Collins. These reports were alleged to have stated that Girdlestone was mentally unbalanced and unfit to carry a weapon. Rumack, Boyd and Hunter were alleged to be parties to the conspiracy. Girdlestone also alleged that he was constructively dismissed on May 4, 2000. Boyd was Deputy Chief in charge of Detective Support Command until he was replaced by Joseph Hunter. Brown was a Detective Sergeant and Girdlestone’s supervisor in the SAS. Staff Inspector Cenzura was Unit Commander of the SAS. Derry was a senior officer assigned by Boyd to review Girdlestone’s concerns as detailed in an e-mail dated May 6, 1997. Dr. Rumack was the head of the TPS’s Medical Advisory Service (MAS). Girdlestone, the grievor, was hired in 1976. After highly satisfactory service as a police officer, he was appointed a Detective in 1990. In 1993 he joined the SAS and worked there until his transfer in July 1997. In April 1996 Girdlestone and four other SAS officers bypassed their immediate supervisors, Warr and Brown, and complained to Deputy Chief Boyd about inappropriate remarks and sexual touching by then-unit commander Staff Insp. Brian Duff. Boyd took immediate action and transferred Duff but asked the officers to speak to their supervisors. Duff was replaced with Cenzura. Girdlestone alleged that Brown was upset about being bypassed, told the grievor it had cost Brown a promotion and that he would never forget it. Brown denied those allegations. Around this time the grievor’s common law marriage with Louise Gray, a fellow employee, came to an end. The grievor alleged that Brown interfered with his marriage by making comments to Gray about Girdlestone’s relationship with Barbara Hammond, his female partner in the SAS. There were rumors in the workplace that Hammond and the grievor were having an affair. The grievor believed that Brown was romantically interested in Hammond. That belief intensified when, on March 17, 1997, Brown assigned Girdlestone and Hammond new partners. Girdlestone and Hammond were unhappy about the reassignment. They spoke to Brown, who advised that Cenzura had chosen Girdlestone to train Marissa Reggimenti, an officer temporarily assigned to SAS. Girdlestone spoke to Cenzura on March 25, 1997 about his concerns over the reassignment, claiming that Brown was harassing him. Cenzura told the grievor that he had chosen him to train Reggimenti because he was one of Cenzura’s best detectives. Reggimenti was in tears after her one-day training session with the grievor, claiming that he disparaged his superiors and colleagues and that he was angry, arrogant and condescending. In early May the grievor sent an e-mail to Boyd that referred to alcohol abuse, sexual harassment and misconduct within the SAS. Boyd assigned Derry to review the situation. Derry met with the grievor twice, claimed the grievor was agitated, emotionally upset, “foaming at the mouth” and rambling to the point of incoherency. He formed the opinion that the grievor was mentally unwell and recorded his observations in a memo to an MAS nurse. A restricted duty form executed by Dr. Rumack and dated May26, 1997 noted that Girdlestone’s firearm had been removed by his Unit Commander. The note stated that the grievor had to be assessed by MAS before returning to work. The grievor was off work with stress-related symptoms. He returned when he was assessed as fit for duty on July 7, 1997 by MAS nurse McCormack. Girdlestone was assigned to Special Investigative Services (SIS). After his transfer the grievor continued to pursue his concerns, believing that his career had been ruined and he was the victim of a conspiracy to discredit him, by portraying him as “crazy”. In 1998 the grievor was assigned to the Auto Squad. In February 1999 he booked off sick with stress related symptoms and was away for one year. The grievor felt that his complaints had been ignored and his reputation destroyed. He initiated the lawsuit.On May 4, 2000 he resigned, claiming he was forced to resign and was constructively dismissed.

Argument

Counsel for the grievor argued that Cenzura, Derry and Boyd conspired to make Girdlestone appear crazy in order to save the reputation of the SAS and protect the Jane Doe trial. Counsel submitted that Derry’s reference to the grievor “foaming at the mouth” was a lie, and that Cenzura and Boyd had no real concern for the grievor’s wellness or safety in the workplace. Counsel submitted that the Reggimenti incident was seized upon to remove the grievor from the SAS. Counsel further submitted that the investigation into the grievor’s complaint was not genuine; that the confidentiality of the complaint process was breached; and that memoranda from Cenzura and Derry to the SAS were defamatory. Finally, counsel contended that the grievor had been constructively dismissed due to the improper transfer, the unjustified gun restriction, the dissemination of false information about him, the failure to investigate his complaints, and his harassment by Brown. Counsel for the Board argued that the grievor had not been subjected to discriminatory treatment or harassed by Brown. Instead, he wrongly associated Brown with the break-up of his marriage and wrongly assumed that Brown had broken up his partnership with Hammond. Counsel submitted that Cenzura’s perception and his handling of the situation were reasonable and appropriate, since the grievor presented to Cenzura as being unwell, prompting Cenzura to advise the grievor to see psychiatrist Collins and to contact the EAP. Counsel argued that the grievor did not in fact ask Cenzura to do anything; specifically, he did not ask Cenzura to file a formal complaint. In addition, the grievor’s lawyer, who became involved in the matter, was trying to seek an informal resolution. Counsel submitted that the grievor’s inappropriate treatment of Reggimenti led to his transfer. Counsel further submitted that the involvement of the MAS was appropriate in the circumstances. Counsel contended that there was no improper transfer, no defamation, no conspiracy to injure and no constructive dismissal – assuming constructive dismissal could even apply under a collective agreement. Counsel added that the grievor resigned to avoid the freezing of his pension funds, not for any other reason.

# de sentence arbirale

Prior to the events giving rise to the grievance and lawsuit, the grievor had been an excellent police officer. He was one of several complainants in the Duff matter. Then his partnership with Hammond came to an end, and his marriage broke up. Against his wishes, he was transferred out of the SAS. Ultimately and under protest, he felt it necessary to sever his employment relationship. From the grievor’s perspective, these events occurred largely because he had put the reputation of the SAS in issue by complaining about Brown’s harassment of him. He believed that Cenzura, Derry and Boyd conspired to portray him as mentally unstable, enlisting Dr. Rumack’s unwitting assistance by misleading him about their concerns for the grievor’swellness. The grievor took the position that these individuals defamed him, conspired to injure him and wrongly transferred him – acts which led to his constructive dismissal. From the Board’s perspective, the grievor’s personal circumstances deteriorated in 1997 to the point where they questioned his wellness, and his hostile reaction to their concerns reinforced the perception. The Board insisted that the grievor’s partnership was ended for bona fide reasons, and he was transferred because he could no longer interact appropriately with colleagues in the SAS. His complaints were groundless, and any alleged delays in investigating them were due to the grievor and his lawyers. The Board believed that the named defendants all had a responsibility to act as they did. The grievor blamed Brown, at least in part, for the break-up of his common law marriage. Based on some inappropriate remarks by Brown, there was some justification for this view. In any case, the grievor’s belief explained why he could reasonably dislike Brown. However, the grievor’s and Hammond’s suspicions about the termination of their partnership were just that; there was no evidence to support them and in fact the evidence was to the contrary: the partnership was ended as a result of new persons joining the SAS and Cenzura’s decision to partner Reggimenti with one of his most experienced officers, namely Girdlestone. The Duff incident was not relevant on the evidence adduced. There was no evidence any of the other complainants were harassed; the matter did not adversely affect Brown’s career; Girdlestone did not report the alleged threat by Brown at the time; and soon after the incident Brown gave the grievor a very positive evaluation. Other than some inappropriate remarks by Brown, there was no evidence of the grievor being harassed by him; and those inappropriate remarks, standing alone, did not support the grievor’s allegations of discriminatory transfer, defamation, conspiracy to injure and constructive dismissal. Regarding the allegations against Cenzura, Derry, Boyd, Hunter and Dr. Rumack, there was no evidence of any alleged link between a failure to investigate the grievor’s complaints and the Jane Doe trial. There was nothing in the background of Cenzura or Boyd which suggested they would turn on a complainant such as the grievor, a person whom they considered to be an excellent investigator. In short, there was no evidence of any conspiracy to injure. The grievor’s emotional reaction to the break-up of his partnership - reassignment of partners being a fairly ordinaryoperational occurrence – was unusual. Before Cenzura understood that he, too, was the object of the grievor’s complaints he was concerned about the grievor’s wellness, concerns which were reasonable in light of the grievor’s conduct: his obsessive note-taking, his rambling and incoherent rants, his unacceptable and unprofessional treatment of Reggimenti. It was reasonable under the circumstances for management to be concerned about the grievor having his service firearm until his wellness had been properly examined. The evidence established that the grievor’s own actions put his wellness in issue. The allegation that the grievor’s complaint was never investigated was contrary to the evidence. Cenzura transferred Brown. Boyd spoke to Cenzura and appointed Derry. Derry spoke to the grievor and others; he also filled out a complaint form which was never signed by the grievor. The grievor’s lawyer asked that any formal response be delayed while he tried to get his client back to work. In short, the concerns were inquired into until the grievor or his lawyer directed otherwise. The Board, like the grievor’s lawyer, was always interested in an amicable resolution. There was no evidence that the grievor’s complaint led to his transfer. The grievor was transferred because of the Reggimenti matter, which followed his insubordinate and insulting treatment of Brown. Under the circumstances the transfer was reasonable; and it was not discriminatory. Accordingly there was no violation of the collective agreement, the Police Services Act, the Ontario Human Rights Code or the Charter of Rights and Freedoms. Since Cenzura and Derry had bona fide concerns over the grievor’s wellness and reasonably secured his gun, their communications with MAS – the products of the same concerns – were likewise reasonable. What they wrote arose from their honest beliefs. What was written, in its plain and ordinary meaning, was not defamatory, was substantially correct, and would not reasonably be understood by a health professional as defamatory. Moreover, the words were subject to a qualified privilege – they were discretely recorded for medical advisors by supervisors who were subject to a duty to protect employees and the public. The same privilege extended to Dr. Rumack. While privilege could be lost if the words were the product of malice, there was no evidence of malice in this case. The harm the grievor complained of was not established. There was no reliable evidence that the securing of an officer’s gun was highly unusual or career ending. The contents of the grievor’s file would not have harmed his career. Apart from some remarks by Brown, the grievor appeared to have been treated with consideration and respect by all his supervisors during and after the events in question. The grievor’s supervisors did not describe him as “crazy” either privately or before his fellow employees. The evidence did not support the allegation that the grievor was constructively dismissed. Instead, he voluntarily resigned and the timing was motivated by pension considerations. There was no evidence that his terms or conditions of employment were manipulated to cause a de facto termination; and Brown’s objectionable comments, standing alone, could not support a finding of constructive dismissal. The grievor’s claims of improper transfer, defamation, conspiracy to injure and constructive dismissal were not proven. In addition, the grievor had not suffered harm or injury to his reputation. Accordingly, his grievance and complaints were dismissed.

Autorités cité

A list of authorities as submitted by the parties may be found at pp. 55, 61 and 62 of the decision.

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