Award Number 12-008

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Award Date:	2012-05-08
Arbitrator:	Burkett, K. View awards by Burkett, K.
Municipality:	Toronto View awards from Toronto
Region:	Central View awards from Central
Classifications:	Disciplinary Action, Illness and Disability, Interpretation
Grievor:	P.C. Imants Karklins
Appearances:	J. Kearsey, for the Association M. Hines, M. Roth, articling student and others, for the Employer
Length of Award:	15 pp
Collective Agreements Cit.	Art. 14
Statutory Cit.	Police Services Act, R.S.O. 1990, c.P.15, s. 68(1)(b) Police Act, R.S.O. 1980, Reg. 291, s. 20(2) Statutory Powers Procedure Act, s. 25(1) Legislation Act, 2006, s. 89

Summary

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Disciplinary Action   Discharge versus resignation - Uniform members - Grievance protesting denial of sick leave gratuity - Gratuity available if member retired or resigned but not if member dismissed - Grievor found guilty of discreditable conduct - Pursuant to schedule of penalties under s. 68(1)(b) of Police Services Act grievor was to be dismissed “in seven days” unless he resigned - On seventh day grievor submitted letter notifying employer of intention to retire - Effect of specifying dismissal “in seven days” is to reduce time for tendering resignation from seven full days to six full days - Grievor not entitled to sick leave gratuity since he did not resign before resignation option expired - Grievance dismissed.

Illness and Disability   Sick leave - Pay-out - Uniform members - Under collective agreement sick leave gratuity available upon retirement or resignation but not if member dismissed - Issue whether grievor resigned or was dismissed - Grievor found guilty of discreditable conduct - Hearing officer ordered that grievor be dismissed “in seven days” unless he resigned, pursuant to s. 68(1)(b) of Police Services Act - Grievor tendered letter announcing his immediate retirement on seventh day - Dismissal took effect before resignation - Employer not required to pay sick leave gratuity - Grievance dismissed.

Interpretation   Statutes - Uniform members - Entitlement to sick leave gratuity where member attempts to resign before dismissal becomes effective - After finding of guilt on misconduct charges hearing officer ordered dismissal “in seven days” unless grievor resigned - On plain language of Police Services Act s. 68(1)(b), and read in in light of Legislation Act, 2006, “in seven days” does not mean “within seven days” - Grievor had to tender resignation/retirement notice before seventh day in order to avoid dismissal - No entitlement to sick leave gratuity - Grievance dismissed.

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Facts

PC Karklins grieved that he had been denied payment of his sick leave gratuity on retirement, contrary to Article 14.02 of the collective agreement. The value of his sick leave gratuity was approximately $30,000. Article 14.02 provided for payment of a member’s accumulated sick leave credits “upon termination of employment”. In Article 14.02 the parties specified that “termination of employment” included retirement on pension or resignation but not dismissal. At issue in this case was the manner in which PCKarklins’ employment was terminated. On Friday, January 18, 2006 PC Karklins was found guilty of discreditable conduct by Hearing Officer Tweedy, who determined on June 27, 2006 that the penalty would be dismissal unless PC Karklins resigned in 7 days. PC Karklins appealed to the Ontario Civilian Commission on Police Services (OCCPS). Pursuant to s. 25(1) of the Statutory Powers Procedure Act this had the effect of staying the disciplinary hearing decision under the Police Services Act. On September 25, 2007 OCCPS dismissed PC Karklins’ appeal of the conviction and the penalty. PC Karklins appealed the decision of OCCPS to Divisional Court, thereby maintaining the stay of the disciplinary decision. On January 29, 2010 the Divisional Court dismissed that appeal and the disciplinary decision was activated as of that date. Accordingly the time frame within which PC Karklins could resign commenced with the date of the court’s judgment, i.e. January 29, 2010. On Friday, February 5, 2010 PC Karklins wrote to the service indicating that he was retiring effective immediately, not by choice but “…because I have been ordered to resign within seven (7) days or be dismissed.” On February 12, 2010 the service wrote to PC Karklins, informing him that retirement was not an option available to him pursuant to the hearing officer’s order. On March 25, 2010 the association filed a grievance on behalf of PC Karklins, alleging that the employer breached the collective agreement when it refused to pay him his sick leave gratuity. Section 68(1)(a) and (b) of the PSA (now s. 85(1)) provided that upon a finding of major misconduct a chief of policy may… (a) dismiss the police officer from the police force; (b) direct that the police officer be dismissed in seven days unless he or she resigns before that time; The corresponding provision under the previous legislation, s. 20 of Reg. 291 under the 1980 Police Act,stated that a person found guilty of a major offence was liable to (a) dismissal, or (b) be required to resign, and in default of resigning within seven days, to be summarily dismissed from the force… The Legislation Act, 2006 which applied to the interpretation of all statutes, including the PSA, prescribed in s. 89 how time and time-limits were to be computed. The issues at arbitration were 1) whether PC Karklins’ letter to the employer, advising he was retiring under duress, was within the time frame for electing to resign, and 2) even if it was, whether the decision to retire constituted a resignation within the meaning of Article 14.01. The parties agreed that by operation of s. 89 of the Legislation Act the date of the Divisional Court’s judgment did not count as part of the time frame. The parties disagreed on whether PC Karklins had six or seven full days from January 29, 2010 in which to exercise his election to resign.

Argument

The employer argued that on a plain reading of s. 68(1)(b) of the PSA,“dismissal in seven days” meant that the dismissal occurred at the beginning of the seventh day from the date of a hearing decision. The employer argued that s. 89 of the Legislation Act produced the same result, namely that the officer was required to resign before the seventh day, i.e. by the end of the sixth day, in this case February 4, 2010. The employer asserted that the dismissal had already occurred when PC Karklins gave notice of his intention to retire. The association argued that “in seven days” meant “within seven days”, i.e. up to and including February 5, 2010. The association contended that s. 89 of the Legislation Act supported its position that seven days meant a full seven days; and that PC Karklins had until midnight February 5, 2010 to resign. The association suggested that the PSA allowed an officer to leave with dignity in order to avoid dismissal, and that an expansive interpretation of the time frame for taking advantage of that option ought to be applied.

Award #

This was a case of first impression, as there was no case law directly on point. Given the extraordinary powers and obligations that attached to a police officer, it was important to know precisely when a person ceased to be a police officer. Section 68(1)(b), directedthat a police officer “…be dismissed in seven days, unless he or she resigns before that time”. Given their plain and ordinary meaning, these words effected the dismissal on the seventh day following the issuing of the hearing officer’s decision unless there was a resignation before that time. The resignation had to occur before the seventh day, i.e. by the end of the sixth day, in order to pre-empt the dismissal. Section 89(3) of the Legislation Act produced the same result. Section 89(3) provided that a reference to a number of days between two events excluded the day on which the first event happened and included the day on which the second event happened. In this case the first event, the issuing of the hearing officer’s decision, occurred on January 29, 2010. The second event, the dismissal, would occur in seven days, excluding the date of the hearing officer’s decision. By operation of s. 89(3) the first day in the seven day sequence was January 30, 2010 and the seventh day was February 5th, 2010. The dismissal would therefore take effect on February 5, 2010 unless there had been a resignation before that time, i.e. by February 4, 2010. Under the predecessor provision, which contemplated a resignation “within seven days”, the association’s position would have prevailed. However, s. 68(1)(b) did not allow for that result. The effect of specifying dismissal “in seven days” failing a resignation before that time was to require that a resignation be tendered before the seventh day, not “within” seven days, thereby reducing the time allowed for tendering a resignation from seven full days to six full days. Since PC Karklins did not resign before midnight on February 4, 2010 he was properly dismissed on February 5, 2010; and accordingly he did not qualify for the sick leave gratuity under Article 14.02 of the collective agreement. Grievance dismissed.

Authorities Cited

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