Numéro de sentence arbitrale 12-014

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Award Date:	2012-12-04
Arbitre:	Albertyn, Christopher Voir les prix par Albertyn, Christopher
Municipalité:	Durham Region Voir les prix а partir de Durham Region
Région:	Central Voir les prix а partir de Central
Classifications:	Management Rights, Performance Review, Transfer, Performance Review, Performance Review, Performance Review, Employment Record
Plaignant:	P.C. Turpin
Comparutions:	J. Phillips, S. Scott, pour l'Association G.P. Christie, M. Wilson, pour l'employeur
Longueur:	108 pp
Référence conventions collective	Art. 5.01
Référence législative	Police Services Act,, ss. 31, 41, 56-59, 64, 68, 69, 72 O. Reg. 123/98, s. 13; O. Reg. 673/98, s. 11 Statutory Powers Procedure Act

Sommaire

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Management Rights   Fairness - Uniform members - Grievance challenging operational review of grievor - Operational review a general investigation - Review prompted by high volume of public complaints lodged against grievor - Chief had the authority to require investigation of an officer’s performance and in this case had legitimate reasons for doing so - Reasonable exercise of board’s management functions - Procedure used not fair to grievor - Provided review has no impact on grievor’s employment record, report not nullified by absence of fair process - Grievance allowed in part

Performance Review   Uniform members - Grievance challenging operational review of grievor - Review prompted by high volume of public complaints lodged against grievor - Chief’s decision to initiate an investigation was justified - Operational review a general investigation, not an investigation of a complaint - Choice of operational review device was within chief’s authority - No violation of s. 13 of O.Reg. 123/98 - Report not a fair appraisal - Grievance allowed in part.

Transfer   Involuntary transfer - Uniform members - Grievance challenging operational review of grievor - Review prompted by high volume of public complaints lodged against grievor - Grievor was transferred pending outcome of review - Transfer intended as a temporary measure - Transfer superseded by events particularly laying of criminal charges - Grievor now off work pending disposition of such charges - Any future assignment of grievor no longer part of grievance.

Performance Review   PERFORMANCE REVIEW -Uniform members - Grievance challenging operational review of grievor - Review prompted by high volume of public complaints lodged against grievor - Chief’s decision to initiate an investigation was justified - Operational review a general investigation, not an investigation of a complaint - Choice of operational review device was within chief’s authority - No violation of s. 13 of O.Reg. 123/98 - Report not a fair appraisal - Grievance allowed in part.

Performance Review   PERFORMANCE REVIEW -Uniform members - Grievance challenging operational review of grievor - Review prompted by high volume of public complaints lodged against grievor - Chief’s decision to initiate an investigation was justified - Operational review a general investigation, not an investigation of a complaint - Choice of operational review device was within chief’s authority - No violation of s. 13 of O.Reg. 123/98 - Report not a fair appraisal - Grievance allowed in part.

Performance Review   -Uniform members - Grievance challenging operational review of grievor - Review prompted by high volume of public complaints lodged against grievor - Chief’s decision to initiate an investigation was justified - Operational review a general investigation, not an investigation of a complaint - Choice of operational review device was within chief’s authority - No violation of s. 13 of O.Reg. 123/98 - Report not a fair appraisal - Grievance allowed in part.

Employment Record   Uniform members - Grievance challenging operational review of grievor - Review prompted by high volume of public complaints lodged against grievor - Review not an investigation of unsatisfactory work performance under Part V of Police Services Act - Report not arising from s. 13 of O.Reg. 123/98 - Report may not form part of grievor’s employment record - Grievance allowed in part.

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Réalités

In June 2008 the association filed a grievance on behalf of P.C. Turpin. The grievance was filed following the completion of an internal review of the grievor’s work performance. The chief ordered this operational review in November 2007. The main concern was the significantly higher volume of public complaints which the grievor had attracted between 2005 and 2007 relative to his colleagues. The complaints primarily concerned excessive use of force. The association challenged the chief’s decision to initiate the operational review, the manner in which it was conducted, and its findings. The grievance claimed that the review was a discriminatory, arbitrary, unfair and unreasonable exercise of management rights under the collective agreement and that the board violated numerous sections of the Police Services Act, particularly s. 68(9) and also s. 13 of O.Reg. 123/98.In addition, the grievance challenged the grievor’s transfer to the Central Alternative Response Unit (CARU). This award was the final decision in this matter, the arbitrator having issued three preliminary awards which dealt with: a jurisdictional challenge [August 31, 2009, OPAC #09-009], the order of proceedings and an adjournment request [April 6, 2010, OPAC #10-005], and the admissibility of certain evidence [July 30, 2010]. Section13 of O.Reg. 123/98 required a chief of police to establish policies for the assessment of officers’ work performance. Subsection (3) required the chief to follow certain procedures before making a complaint against an officer of unsatisfactory performance. Under s. 68(9) of the PSA,if a complaint did not establish misconduct or unsatisfactory work performance, no record of the complaint could be used against the officer for any purpose. The chief had developed performance assessment and review procedures under O. Reg. 123/98, but in this case utilized the operational review instead of those procedures. The task of conducting the review was assigned to a management team. The team saw its objectives as being: i) to develop and implement a performance improvement plan, if substandard performance or conduct was identified; and ii) to ensure that the managing of complaints into the conduct of the grievor had been appropriate. No procedural safeguards were built into the review, and there was no provision for input by the grievor. Sergeant Kritzer was first assigned to prepare the draft report. The team decided that Sgt. Kritzer’s draft report did not meet their requirements, mostly because his recounting of interviews with the grievor’s supervisors and his fellow officers lacked supporting documentation. Thus the report was regarded as unreliable. Inspector Maiorano was then assigned the task of preparing a draft. Unlike Sgt. Kritzer, Insp. Maiorano did not conduct interviews withsupervisors, his sources of information being primarily documentary, i.e. personnel and professional standards branch records. Inspector Maiorano also reviewed two videotaped incidents of the grievor forcibly subduing individuals in custody. Those videos formed the basis of criminal charges brought against the grievor by the service at the conclusion of the operational review. In his report Sgt. Krizerhad noted a flaw in the service’s handling of withdrawn complaints, namely that no reason was given for the withdrawal. He suggested that professional standards complete a case synopsis to accompany each withdrawn complaint, to allow a comprehensive review of officer conduct. That recommendation was the only item that Insp. Maiorano took from Sgt. Krizer’s report. Inspector Maiorano’s report was a comprehensive summary of all documents concerning any allegation of misconduct over the entire period of the grievor’s performance. The report referred to discipline which ought to have been purged from his file, pursuant to the sunset provisions of the PSA, and some unsubstantiated allegations were recorded as disciplinary facts. There was no reference to the laudatory performance reviews that the grievor received during the review period. Overall the report suggested a propensity for misconduct. The grievor’s knowledge, skill and ability were acknowledged, with the additional observation that while capable of performing at an acceptable level, he had not been consistent in doing so. No training recommendations were made for the grievor, who was one of the most highly trained individuals in the service in use of force. The grievor was transferred to the Central Alternative Response Unit (CARU) at the start of the operational review. A few days after the review was completed, the grievor was placed on administrative suspension as a result of criminal charges laid against him in connection with the videotaped incidents. He remained on administrative suspension throughout the hearing. No action was taken by the chief as a result of the operational review. The grievor’s explanation for the review was that Deputy Chief Mercier, who initiated the review and who was a member of the management team, had an unreasonable bias against him. He cited three incidents that were said to reveal that antagonism. The employer produced a statistical record of all public complaints against all officers of the service for the years 2005, 2006 and 2007. In that period the grievor had 10 public complaints against him, 6 of which were for excessive use of force. There were other officers with complaints against them, some who had multiple complaints in one year. However, no other officer had as many as the grievor or as many in repeated years. The grievor had the most complaints involving use of force.

Argument

The association challenged four matters: the initiation of the operational review, the conduct of the review, the findings of the review, and the decision to transfer the grievor pending the outcome of the review. The association argued that these four matters were arbitrary, discriminatory, acts of harassment, and an abuse of the chief’s powers. The association said that the decision to undertake the review was the result of a flawed assessment of the public complaints against the grievor. Counsel noted that the number of complaints was disproportionately high because the grievor worked in the Whitby bar district, where he was more likely to have to use force for restraint. The association contended that there was no justification for why the chief did not use the statutorily prescribed method for addressing performance issues that arise from public complaints, viz. O.Reg. 123/98; and had he done so, the grievor would have had the benefit of procedural safeguards which were absent in this case, as was the grievor’s input. As to the content of the report, the association argued that it was fundamentally unfair, amassing every negative rumor or report over the span of the grievor’s career, while ignoring or downplaying positive aspects of his performance and work history. The association further contended that the grievor’s transfer to CARU was unjustified and arbitrary. The association sought, inter alia: a declaration that the operational review violated the collective agreement and was null and void; a direction that the report be expunged from his employment record; that the grievor be returned to his former position, once he returned to work; and $25,000 in general damages for wrongful public humiliation and disparagement among co-workers that resulted from the operational review. The employer contended that the chief had the power and authority to review the employment history and performance of any officer at any time, without invoking disciplinary powers and procedures under the PSA. Further, nothing in the collective agreement curtailed the chief’s right to review an employee’s complete file, including performance issues. The review in this case was not disciplinary; its purpose was information gathering to ensure consistent, unproblematic performance by the grievor. The transfer was appropriate, to a position where the grievor had much less contact with the public, and the decision to transfer him was not arbitrary or discriminatory.

# de sentence arbirale

For the chief, the grievor presented a contradictory picture: of an officer who was highly capable, and yet who had apparently repeatedly responded excessively in apprehending offenders. The statistics revealed that the grievor had about 26 times as many complaints against him as the average of his fellow officers. That number was disproportionately high. Therefore the chief was justified in conducting an investigation into the grievor’s work performance – an investigation which, he made clear, was non-disciplinary. The chief clearly had the authority to conduct an investigation into the conduct of one of his officers. The chief had in place a policy for assessing officers’ work performance. The association asserted that the chief’s failure to use that policy or to invoke any of the statutorily prescribed procedures for addressing work performance constituted an improper, arbitrary and discriminatory exercise of management rights. However, neither party regarded the operational review as the investigation of a complaint. Therefore s. 13 of O.Reg. 123/98, which was a precondition for the investigation of a complaint, did not apply. The operational review was a general investigation for which there was no precondition. The investigation could be done using the mechanism of an operational review; and the fact that the service investigated the grievor’s performance did not make the investigation one that fell under Part V of the PSA. Although Insp. Maiorano sought to prepare a fair assessment of the history of the grievor’s performance, it was not a fair appraisal. The report made insufficient reference to the grievor’s accomplishments and successes, while overemphasizing the problematic nature of his behaviour. The report tended to accentuate his shortcomings, instead of the internal contradiction which his performance presented. For instance, the report omitted mention of the grievor’s exemplary work on the “White Oaks” initiative – working with bar owners in the district to limit intoxication among their patrons. Further, there was no mention of the grievor’s exceptional act of bravery in his fatal shooting of an assailant in a domestic dispute to save someone’s life. Inspector Maiorano’s report pointed out that with respect to the grievor there had been no consistent escalation of penalty, which one would expect under a progressive disciplinary approach. In addition, the report did contain some valuable organizational recommendations. Nevertheless, it was long on history, some of it inaccurate, and thin on concrete measures for addressing the problem the service faced with the grievor – viz. that his performance was good when closely monitored but declined when he was not closely supervised. None of the recommendations in the operational review were implemented. The status of the report was uncertain. The operational review was not an investigation of unsatisfactory work performance under Part V, nor was it a report arising from s. 13 of the Regulation. The report had no status under any Act or Regulation. The report was not done in a manner that was fair to the grievor. Since it formed no part of any discipline or formal appraisal, it ought not to prejudice the grievor’s employment and career. In the absence of any assurances from the service that the report would not do so, it was appropriate to place significant limits on the use of the report. Accordingly the arbitrator directed that the report not form part of the grievor’s employment record. In addition, the report could be used for a purpose relating to his employment (recognized performance review or complaint procedure under the PSA) only for the same temporal period pertaining to a complaint or other proceeding under the statute, and only if the grievor had the procedural protections afforded him under the PSA and the collective agreement. The grievor saw his transfer to CARU as a form of punishment. Nevertheless, the chief had a very wide discretion in assigning officers; and in this case he had reasonable grounds for assigning the grievor to other duties while the operational review was in progress. At present the grievor was still off work because of the criminal proceedings against him. The assignment to CARU was thus superseded by events. However, any assignment of the grievor upon his return to work was beyond the scope of the grievance.

Autorités cité

•Re Canada Post Corp. and C.U.P.W. (Seymour) (1992), 25 L.A.C. (4th) 137 (Shime) •Windsor Regional Hospital and C.U.P.E., Loc. 1132 (Johnston) [2001] O.L.A.A. No. 335 (Verity) •Re Toronto Transit Commission and A.T.U. (Stina) (2004), 132 L.A.C. (4th) 225 (Shime) •Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118 •Chief Constable of Sussex, Ex Parte International Trader’s Ferry Ltd., R v. [1998] UKHL 40; [1999] 2 AC 418; [1999] 1 All ER 129; [1998] 3 WLR 1260 (Nov. 11, 1998) •Re Toronto Police Services Board and Toronto Police Assn. (2011), 202 L.A.C. (4th) 113 (Knopf) [OPAC #11-003] •Re Toronto Police Assn. and Toronto Police Services Board(Jan. 16, 2012, Knopf) OPAC #12-001 •Re Toronto Police Assn.and Toronto Police Services Board (Sept. 11, 2009, Kirkwood) OPAC #09-007 •Re Metropolitan Toronto Zoo and C.U.P.E. (2008), 171 L.A.C. (4th) 80 (Randall) •Re Navistar International Corp.and CAW-Canada, Loc. 127 (1995), 52 L.A.C. (4th) 223 (Snow) •Re OPG and Society of Energy Professionals (2007), 165 L.A.C. (4th) 438 (Swan) •Re Hamilton (City) and C.U.P.E. (2001), 98 L.A.C. (4th) 21 (Devlin) •Jacobs Catalytic Ltd.and L.I.U.N.A., Loc. 1089, 2006 CanLII (ONLA) (Albertyn) •Pembroke (City) Police Services Board and Kidder, 1995 CanLII 7172 (ONSC)

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