Numéro de sentence arbitrale 01-031

Voir le texte intégral de ce prix ou voir résumé ci-dessous

Award Date:	2001-11-15
Arbitre:	Brent, G. Voir les prix par Brent, G.
Municipalité:	Toronto Voir les prix а partir de Toronto
Région:	Central Voir les prix а partir de Central
Classifications:	Transfer, Involuntary transfer , Disciplinary Action, Management Rights
Plaignant:	Det. G. Rossi
Comparutions:	R. Aveling and others, for the Association, pour l'Association B. Stewart and others, for the Employer, pour l'employeur
Longueur:	42 pp
Référence conventions collective	Art. 3.01, 18.03 and Appendix “A”
Référence législative	Police Services Act, ss. 31(4) and 68(9)

Sommaire

---

Transfer   Uniform members - Grievor seconded to Ontario Illegal Gaming Enforcement Unit - Whether removal from OIGEU and return to Special Investigation Services constituted a “transfer” - Parties contemplated “transfer” as denoting lateral movement between units - Grievor’s secondment to OIGEU not a transfer and removal from OIGEU not a transfer - Reasonable cause standard in collective agreement not applicable - Grievance dismissed.

Involuntary transfer   Uniform members - Grievor moved from Ontario Illegal Gaming Enforcement Unit - Return to Special Investigation Services not a “transfer” - Subsequent move from SIS to another division constituted a “transfer” to which reasonable cause standard applied - Notwithstanding grievor’s expectations of returning to OIGEU, transfer out of SIS was in accordance with new management policy of rotating detective support command officers out into field divisions - Application of policy not unreasonable - Grievance dismissed.

Disciplinary Action   Indicia - Uniform members - Grievance contesting removal from Ontario Illegal Gaming Enforcement Unit - Grievor asserted removal and reassignment within Special Investigation Services constituted disciplinary action - Grievor’s subjective perception that he was demoted not determinative - Reassignment not motivated by misconduct - No intent to punish - Action not meeting objective test for discipline - Grievance dismissed.

Management Rights   Reasonableness - Uniform members – Transfer from Special Investigation Services to another division - Transfer in accordance with new policy of routinely transferring detective command officers out of units - Transfer not unreasonable or contrary to collective agreement - Grievance dismissed.

---

Réalités

Detective Rossi grieved his removal from the Ontario Illegal Gaming Enforcement Unit (OIGEU), a sub-unit within Special Investigation Services (SIS), and his subsequent movement from SIS to 12 Division CIB. The grievor had been a member of the Toronto Police Service (TPS) since 1975. He spent a significant portion of his career investigating gaming offences and had considerable expertise in the area of gaming investigations. Gambling was a part of the Morality sub-unit within SIS. In turn, SIS was one of 8 units within the Detective Support Command (DSC). The unit commander of SIS was Superintendent Gottschalk. Six officers worked in gambling, one of whom was the grievor. The grievor had worked in gambling since February 1982. In March 1996 Superintendent Gottschalk was directed to reduce SIS by 19 officers. Gottschalk did so, and in the process developed a tenure policy to protect the interests and viability of SIS. He developed a succession plan to ensure the continuity of critical skills and a process for moving people out of SIS to make way for and train new officers. In September 1997 Deputy Chief Joseph Hunter came to Detective Support Command. He initiated a policy, “Annual Rotation of Personnel”, which required that officers be transferred out of the DSC on a regular basis. Each unit within the DSC was required to rotate a minimum of 10% of their officers to other commands. Hunter’s objective was that transfer out of DSC would become the norm rather than the exception. Thus his objective was similar to that of Gottschalk. Both policies were intended to provide expertise to field divisions, to ensure the continuity and development of key skills by bringing in new officers, and to address perceptions that DSC positions were privileged and were occupied by officers “forever”. One of the criteria used to identify officers for movement out of DSC was tenure: how long the officer had been in the assignment. The only significant difference between the Gottschalk and Hunter policies was the 10% requirement. Both policies were made known to members of the SIS. In November 1996 the provincial government approved funding for the creation of an OPP province-wide initiative to combat organized crime involvement in illegal gambling. The Ontario Illegal Gaming Enforcement Unit (OIGEU) was set up with OPP officers and with the participation of officers from major police services in Ontario, including the TPS. A secondment agreement was reached between the TPS and the OPP. The grievor was one of four officers from the gaming section of Morality who were seconded. The period of the secondment was to be for one year, but could be terminated earlier. Detective Inspector Moodie of the OPP wanted the grievor in the OIGEU because of his experience and expertise as a gaming investigator. Primarily on Moodie’s initiative, the grievor was named team leader of the Toronto contingent. He and other TPS officers began working with OIGEU in January or February 1997. As team leader, the grievor was responsible for the administration of the team: monitoring overtime, checking expense records, attending meetings, etc. He also conducted investigations and assisted other teams, and played a liaison role with management. In 1997 the TPS Internal Affairs (IA) began investigating some TPS officers who had done some undercover work for OIGEU and who were accused of misappropriating/keeping winnings rather than reporting them. None of the officers under investigation were part of the Toronto team at OIGEU. However, the grievor, as team leader, would be responsible for accounting for funds given to undercover officers; and IA wanted to interview him. IA was having difficulty reaching the grievor to do so. The unit commander of IA forwarded some documentation to Gottschalk which suggested that the grievor did not comply with “an order to account for his actions while a supervisor” with OIGEU. Gottschalk learned that disciplinary charges against the grievor might be laid. Gottschalk had no other information and was precluded, as were all unit commanders, from interfering or intruding upon an IA investigation. Concerned about the grievor’s ability to supervise in that atmosphere, Gottschalk decided to remove the grievor from OIGEU and return him to SIS. He told the grievor that he was moving him back to the SIS office and that he had lost some confidence in the grievor’s ability to supervise in an unstructured work environment. Gottschalk made no commitment about the grievor’s eventual return to OIGEU. Detective Sergeant Campbell, who was in charge of the Fugitive Squad, requested the grievor, and the grievor reported for duty there on October 14, 1997. The squad had a large backlog of “TPS 250s” – reports submitted to Canadian immigration authorities. For the first three weeks on the squad, the grievor and a subordinate, Det. Cst. Parent, worked exclusively on TPS 250 entries. Campbell regarded the work as investigatory, not a make-work project. The grievor and Parent regarded it as data entry, a mere clerical function. In the grievor’s view, he had been demoted. By the end of December 1997 problems with the system for inputting TPS 250 forms had disappeared and from then on the grievor did investigative work. On April 9, 1998 the grievor was completely exonerated of the misconduct charge. He expected to be returned to OIGEU, but acknowledged no promises had been made in that regard. Nevertheless that was his goal and he frequently raised the subject with his supervisors. However, Gottschalk testified that in accordance with the Hunter policy, the grievor was a candidate for transfer as early as late 1996/early 1997, i.e. at the outset of his secondment to OIGEU. On June 4, 1998 Gottschalk informed the grievor that he would be transferred out of SIS.

Argument

The association argued that the grievor’s removal from OIGEU was a “transfer” within the meaning of Article 3.01 of the collective agreement and that the transfer was without reasonable cause, contrary to Article 3.01. The association submitted that there was no reasonable cause not to return the grievor to OIGEU once the Police Services Act charges were dismissed. The association further submitted that there was no reasonable cause for the grievor’s transfer from SIS to 12 Division CIB. The association also argued that the grievor’s removal from OIGEU in response to the charges was disciplinary in nature and that it violated the PSA. The board argued that the grievor’s removal from OIGEU was not a transfer but rather a removal from secondment or a reassignment within SIS. While the move to 12 Division CIB was a transfer, both moves were decisions of the Chief made pursuant to s. 31(4) of the PSA and as such they were not covered by the collective agreement. In the alternative, the board asserted that the grievor’s transfer to 12 Division was for reasonable cause because it was made pursuant to a valid TPS policy. The board denied that the actions taken were disciplinary or that they violated the PSA.

# de sentence arbirale

The first issue was whether the grievor’s move from OIGEU to SIS was a transfer. As contemplated by Article 3.01, “transfer” meant a lateral movement between units. A secondment did not change the officer’s assignment within TPS. The managers of seconded officers continued to exercise some control or contact with them. For the purposes of implementing Hunter’s policy, the TPS officers seconded to OIGEU were considered to be part of the SIS unit. A secondment was not a transfer within the TPS, and the end of a secondment was likewise not a transfer. Thus the grievor’s removal from OIGEU was not a transfer within the meaning of Article 3.01, and the reasonable cause standard did not apply to the decision to remove him. Section 68(9) of the PSA required that unless allegations or complaints were proved on clear and convincing evidence they could not form part of an officer’s record or be taken into account for any purpose relating to employment. The association argued that the TPS was precluded from taking into account the allegations against the grievor and the misconduct charge because the charge was not proved on clear and convincing evidence. However, as indicated by Gottschalk, the grievor was removed from OIGEU not because of pending disciplinary charges but because Gottschalk was concerned about the grievor’s ability to supervise in an environment like OIGEU; and because of the ongoing IA investigation, he believed he had no way of satisfying his concerns. There was a logical, but not a causal, connection between the allegations against the grievor and his removal. Thus there was no violation of s. 68(9). Nor was his removal disciplinary. It was not motivated by the allegation of insubordination, but by Gottschalk’s honestly held concern about the grievor’s ability to supervise properly and his honest belief that he was unable to make the sort of inquiries necessary to allay his concerns, given the ongoing IA investigation. The move was not done to punish the grievor. Moreover, nothing that occurred in the Fugitive Squad was disciplinary. The TPS 250 work was necessary and important, even if the grievor regarded it as boring or a make-work project. When the backlog was cleared he performed regular investigatory duties and supervised Parent, in a manner consistent with his rank. The grievor’s subjective view that he had been demoted because he was removed from duties that he enjoyed and excelled at was not determinative. Neither his removal from OIGEU nor his subsequent treatment in the Fugitive Squad met the objective test of discipline. The move from SIS to 12 Division CIB was a transfer since the grievor was moved from one unit to another. However, it was not contrary to the collective agreement. The grievor was the officer in SIS with the longest period of service in the unit. As such, he was a likely candidate for transfer under the Hunter policy. While the grievor agreed that he knew of the policy, he felt he had been treated unfairly. The grievor’s perception of unfair treatment and his expectation that he should have remained in SIS were based on the belief that people were transferred out of the Detective Support Command because of problems they were having. However, that was precisely the perception that the policy was intended to dispel, and it ran counter to Hunter’s goal of training new officers and bringing DSC expertise back to field units by making transfer the rule rather than the exception. The grievor’s view that tenure in SIS was fixed unless the officer was performing poorly was not the underlying assumption of the Hunter policy. The policy itself was implemented for valid management reasons. From the evidence, the grievor was transferred out of SIS by virtue of that policy. There was no basis for finding that he was treated in an arbitrary, discriminatory or bad faith manner. Accordingly there was reasonable cause for the transfer. Grievance dismissed.

Autorités cité

• Garden v. Irvine (1907), 6 E.L.R. 523 • Metropolitan Toronto Police Assn. and Board of Commissioners of Police (Valade), (1982) unreported (Teplitsky) • Re Ottawa General Hospital and ONA (1981), 2 L.A.C. (3d) 1 (P. Picher) • Re Dominion Stores Ltd. and Retail, Commercial and Industrial Union, Loc. 206 (1983), 9 L.A.C. (3d) 47 (Saltman) • Toronto Police Services Board and Toronto Police Assn. (Barnard), (2000) unreported (Saltman) • Canadian Oxford Dictionary, Oxford University Press, meaning of “punish”, “punishment” and “punitive” • Re Retail, Wholesale, Bakery & Confectionery Workers, Loc. 461 and Canada Bread Co. Ltd. (1965), 16 L.A.C. 202 (Reville) • Re Ottawa Civic Hospital and CUPE, Loc. 576 (1979), 24 L.A.C. (2d) 244 (Carter) • Re New Orchard Lodge/Extendicare Ltd., Ottawa and ONA (1983), 12 L.A.C. (3d) 221 (Swinton) • Re Government of Alberta and AUPE (Michaels) (1990), 15 L.A.C. (4th) 164 (Moreau) • Re The Queen in Right of Canada and Evans et al. (1983), 1 D.L.R. (4th) 328 (Fed. C.A.) [A complete list of authorities may be found in the Appendix to the decision.]

Voir le texte intégral de ce prix