Numéro de sentence arbitrale 09-007

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Award Date:	2009-09-11
Arbitre:	Kirkwood, B. Voir les prix par Kirkwood, B.
Municipalité:	Toronto Voir les prix а partir de Toronto
Région:	Central Voir les prix а partir de Central
Classifications:	Demotion - Indicia, Rank, Job Classification
Plaignant:	Sgt. Ferguson et al.
Comparutions:	. Dowling, R. Aveling and others, pour l'Association M. Hines, M. Khorayeh and others, pour l'employeur
Longueur:	33 pp
Référence conventions collective	Art. 3, 6 and 16
Référence législative	Police Services Act, O. Reg. 929 s. 4

Sommaire

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Demotion - Indicia   Uniform members - Employer reclassified four officers from Detective Constable to Police Constable and reclassified Detective to Sergeant - Grievors worked in Bail and Parole Enforcement Unit - With the exception of Sergeant, grievors suffered a loss of income when plainclothes premium and clothing allowance were removed - No loss of rank since Detective Constable not a recognized rank under Police Services Act and Regulation 929 - However grievors had been classified as Detective Constable within the rank of Constable - Loss of status combined with loss of income are indicia of a deemed demotion - Additional income not warranted in this case on the basis of job duties actually performed - Grievors not demoted - Employer had reasonable cause to reclassify - Grievances dismissed.

Rank   Uniform members - Members of Bail and Parole Enforcement Unit reclassified from Detective Constable to Police Constable and from Detective to Sergeant - Grievors lost plainclothes premium and clothing allowance after being reclassified - Detective Constable not a recognized rank under Police Services Act and Regulation 929 - However Employer created a Detective classification within the rank of Police Constable - Reclassification a management right - Despite economic loss and perceived loss of status grievors not demoted - Allowance and premium pay removed with reasonable cause since grievors did not perform investigative duties associated with Detective classification - Grievances dismissed.

Job Classification   Reclassification - Uniform members - Members of Bail and Parole Enforcement Unit reclassified and plainclothes allowance and premium were removed - No loss of rank - Job move not a demotion but a reclassification - Issue whether Employer had reasonable cause to reclassify - Evidence that grievors did not perform investigative duties which formed the basis of plainclothes allowance and premium - Grievances dismissed.

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Réalités

The grievors were all members of the Bail and Parole Enforcement Unit. In March 2005 the Employer advised Police Constables Stewart, Tyrell, Hiscott and Ryan that effective September 2005 they would be reclassified from the rank of Detective Constable to Police Constable. Sergeant Ferguson was notified that he would no longer be designated as Detective and would henceforth be designated as Sergeant. The grievors were all told that they were to perform their duties in uniform. As a result of the reclassification the grievors stopped receiving the premium for performing plainclothes duties per Article 16 of the collective agreement (the “plainclothes premium”). They also stopped receiving the clothing expense reimbursement in Article 6 (the “clothing allowance”). The pay premium represented a loss of income equivalent to 6.75% of the First Class Constable rate. Sergeant Ferguson did not suffer a loss of income since the pay rate of a Sergeant was equivalent to the rate of a Detective. The Bail and Parole Enforcement Unit had been in existence since 1970, although its name and focus had changed from its inception. The unit’s mandate was offender management. The officers registered individuals who were required to report to the police as a condition of their release on bail or parole. The officers’ duties also included collating information from sex offenders who were registered with the national or provincial Sex Offender Registry (SOR); this information was then forwarded to the Sex Crimes Unit. Although officers’ duties initially included enforcement of bail or parole conditions, and thus some outside investigative work, all investigation and enforcement functions performed by the officers ceased after the transfer to the OPP of the Repeat Offender Parole Enforcement (“ROPE”) program in 2001. However the registration functions broadened after 2001 when provincial and federal SOR’s were activated. Since 2001 the grievors’ job duties within the unit had not changed, despite a transfer of the unit from Detective Command to Court Services (Support Command) for a brief time. Currently the unit remained under Detective Command.

Argument

The Association acknowledged that there was no such rank as Detective Constable, but submitted that Detective Constable constituted half a rank, as the wage premium of 6.75% reflected one-half of the difference between the salary of a First Class Constable and a Sergeant, who received 113% of the First Class Constable rate. The Association contended that the grievors had all been demoted, as evidenced by their loss of income as well as their loss of status, since the designation of “detective” was perceived as an upward movement within the rank of Constable. The loss of that designation had an adverse impact on the grievors, who were thus demoted; and the demotions were effected without reasonable cause, contrary to Article 3 of the collective agreement, the management rights clause. Since there had been no change in duties, the demotions were also arbitrary. The Association argued that as long as an officer fell within the Detective Command the officer was entitled to be considered a Detective and to receive the plainclothes premium. The Board argued that demotion required a downward movement between job classifications or ranks; since there was no change in rank or job classification, the grievors were not demoted. “Detective” was merely a term used in the workplace; it was not a rank recognized in s. 4 of Regulation 929 under the Police Services Act. The Board submitted that compensation was based on duties performed, not the officers’ qualifications. Since the grievors were not performing investigative duties, they had no entitlement to the plainclothes premium or clothing allowance. The fact that they had received this extra income in the past was an error, which the Board was entitled to correct.

# de sentence arbirale

The first issue was whether the grievors had been demoted. There was no such rank as Detective Constable. The only permissible ranks were those legislated in Regulation 929 under the Police Services Act, and the term Detective Constable did not appear in the collective agreement. Since none of the grievors suffered a loss in rank, none was demoted. The next issue was whether the grievors had been reclassified. Although the Board claimed that the only classifications were the four levels of Police Constable, the Board’s practice and documentation did not support that assertion. “Detective constable” was not a rank recognized by either the statute or the collective agreement. Nevertheless the term was used in common parlance, and the service’s own policy documents referred to “detective classification”, “detective constable” and “detective status”. The service’s policies therefore acknowledged a classification of “detective”, and Article 16 had been interpreted and administered in recognition of the fact that some constables were entitled to receive the plainclothes premium by virtue of the type of work they performed. Ranks were statutorily mandated, but Regulation 929 did not prohibit the creation of classifications. The right to classify was a management right, and the Board’s creation of a detective classification, as distinguished from the uniform classification, was a manifestation of that right. Contrary to the Association’s submission, the command structure did not determine pay rate. A basic tenet of labour relations was that compensation is based upon job functions and the skills required for performing the duties of a position. Article 16 did not determine status, whether the claimant was a detective or not. The focus of Article 16 was the functions performed by the claimant. In order to receive the allowance, the grievors had to demonstrate that they performed plainclothes duties. Since it was agreed that plainclothes duties were synonymous with detective duties, plainclothes duties had to exceed the investigative functions required of a patrol or uniformed officer. Notwithstanding the importance of their work, the grievors could not make such a claim. The Board’s evidence established that on a scale of investigative functions, those required of officers in this unit were less than those required for most police officers on patrol, let alone other detectives. The Association did not establish that the grievors were entitled to the plainclothes premium in Article 16. Although loss of status combined with loss of income may be indicia of a deemed demotion, in order to establish that there was a deemed demotion the individual first had to demonstrate that he or she was entitled to the benefits of the position that were lost. In this case the grievors failed to reach that threshold of entitlement. Perceived loss of status was insufficient to establish that a deemed demotion had occurred here. However, the Association did establish that the Employer changed the grievors’ classification from the Detective Classification to the Uniform Classification. Despite the economic consequences for the grievors, on the evidence the Employer had reasonable cause to reclassify them. Their duties were not investigative; any enforcement and investigative duties had been transferred to ROPE or the Sex Crimes Unit some years before. The Employer was entitled to apply the collective agreement and to correct what amounted to an error of payment or an overpayment. Grievances dismissed.

Autorités cité

• Hamilton-Wentworth Police Services Board and Hamilton-Wentworth Police Assn. (BEAR Project grievance) May 23, 1999 (Jackson) [OPAC #99-010] • Re Richardson Terminals Ltd. and Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Station Employees, Grain Elevator Division, Lodge 650 [1973] 2 L.A.C. (2d) 371 (Aggarwal) • Regional Municipality of York Police Services Board and Regional Municipality of York Police Assn. (Amato) Dec. 20, 2001 (Marcotte) [OPAC #01-028] • Law Society of New Brunswick v. Ryan [2002], 223 D.L.R. (4th) 577 (S.C.C.) • Brookfield Management Services Ltd. and Canadian Union of Operating Engineers and General Workers (Miller) [1999] O.L.A.A. No. 481 (Davie) • Toronto Police Association and Toronto Police Services Board (Promotion Grievances) July 13, 2007 (MacDowell) [OPAC #07-021] • Re Borden Chemical Co. (Canada) Ltd. and Allied and Technical Workers, Local 13491 (1973), 3 L.A.C. (2d) 383 (Weatherill) • Maple Leaf Mills Ltd. and United Packing House, Food and Allied Workers, Local 452 (unreported) Aug. 24, 1967 (Hanrahan) [Further authorities as submitted by the parties may be found at pp. 13-17 of the decision.]

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