AH - 151

AH - 151

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the “Company”)

AND

CANADIAN PACIFIC POLICE ASSOCIATION

(the “Union”)

IN THE MATTER OF THE GRIEVANCE OF D.H. MOORE

SOLE ARBITRATOR: Harvey Frumkin

There appeared on behalf of the Company:

Mark Shannon

And on behalf of the Union:

Helene Lebel

A hearing in this matter was held at Montreal, Quebec, on the 22^nd, 23^rd and 24^th day of January, 1986
The undersigned, Harvey Frumkin, was by agreement of the parties hereto appointed sole Arbitrator to hear and decide the above grievance. The hearing was held at Montreal, Quebec, on January 22, 23 and 24, 1986. Mtre Helene Lebel, Q.C. acted for the Association and Mtre Mark Shannon represented the Company. After duly considering the arguments of both sides, studying the various exhibits submitted, the evidence taken at the hearing and the Collective Agreement, the Tribunal submits herewith its decision.

The grievance before the Tribunal bears date February 26, 1985, and contests the discharge of the Grievor from his position as police constable with the Company on February 26, 1985. The grievance, in addition to contending that the dismissal was unjust, places particular emphasis upon what the Grievor perceived as the unfair manner in which a disciplinary hearing required under the Collective Agreement as a prerequisite to discharge was conducted. It reads as follows:

“February 26, 1985

Mr. E.F. Burch

Inspector-Personnel, Pacific Region

Department of Investigation

Canadian Pacific Limited

170-200-Granville Street

Vancouver, B.C.

RE: FIRST LEVEL GRIEVANCE

Dear Sir,

I hereby grieve that on February 14, 1985 and February 18, 1985 a Disciplinary Hearing was conducted preferring certain allegations against me. I submit that this Disciplinary Hearing was not fair and impartial, for the following reasons:

1) My Local Association Representative S. Gregoris was not permitted, on orders from Superintendent J.B. Eggett, to properly assist me at this Hearing.

2) At the onset of this Tribunal, I was threatened by the Hearing Officer, Superintendent J.B. Eggett, that I would be charged with insubordination if I did not answer his questions.

3) Numerous pertinent and relevant items which I requested to be entered into the transcript were refused by the Hearings Officer, Superintendent J.B. Eggett.

4) That the Hearing Officer, Superintendent J.B. Eggett, imported irrelevant evidence into this tribunal that had nothing to do with the charges and furthermore was prejudicial to these proceedings.

5) That I was intimidated into answering questions quickly by the Hearing Officer.

6) That Superintendent J.B. Eggett willfully overlooked errors and omissions that I had brought to his attention.

7) I was never properly advised of the charges after asking for clarification I was refused.

8) Superintendent J.B. Eggett made submissions at the Disciplinary Hearing which were entered into the transcript, but were not predicating by any facts or evidence adduced at the Hearing

9) Under gear and duress, threatened with a charge of insubordination, I was forced to sign the Disciplinary Hearing transcripts, which I had already signified were incomplete and incorrect.

10) I was refused permission to refer to my notes while perusing the company’s transcript in order to attest to it’s authenticity.

11) I further submit that other numerous violations of the Collective Agreement ID5, articles 10.01 and 10.02 have occurred.

This was done without cause or justification, contrary to Collective Agreement ID5.

I further grieve that on or about February 26, 1985 I was dismissed as a result of this tribunal. This was also done without cause or justification, contrary to Collective Agreement ID5.

REMEDY REQUESTED

1) That I be reinstated to the services of company forthwith.

2) That I be paid all monies and wages lost as a result of this action.

3) That any adverse notations on my personal file in respect to this matter be removed forthwith.

4) Such further and other relief as may be appropriate in the circumstances.

This Grievance is now being submitted as Step 1 of the Grievance and arbitration’s procedure as found in the Collective Agreement ID5, between Canadian Pacific Police Association.

Yours truly,

D.H. Moore”

The grounds upon which the company relied for its decision to discharge the Grievor are contained in the letter of dismissal communicated to the Grievor on February 26, 1985, and which is to the following effect:

“Vanc., B.C., Feb. 26, 1985

From: J.B. Eggett

To: D.H. Moore

Mr. Moore

This has reference to your Disciplinary Hearing commencing February 14, 1985 and resuming February 18, 1985 in connection with the following six allegations:

1. Allegation that you shirked your duty during the 0001-0800 hours shift on January 1, 1985 by being absent without authority and abandoning your duty assignment.

2. Allegation that during the 0001-0800 hours shift, January 1, 1985, you falsely recorded entries in your police notebook and the patrol car activity sheet concerning your movements and location times.

3. Allegation that you falsified a report to your Regional Superintendent under date of January 17, 1985 in that you communicated false information concerning your exact whereabouts during the 0001-0800 hours shift on January 1, 1985.

4. Allegation that during the 0001-0800 hours shift on January 1, 1985, you misused the Department patrol car by leaving your assigned patrol area for personal reasons and without authority.

5. Allegation that during your 0001-0800 hours shift, January 1, 1985, you misused the Department patrol car for personal purposes to convey a person to their residence without authority.

6. Allegation that during the 0001-0800 hours shift on January 1, 1985, while operating Department auto 4-21, you ran an R.C.M. Police drunk driving roadblock in a unsafe manner and without excuse, thereby, conducting yourself in a manner unbecoming a member of the Department.

In view of your past Disciplinary record and serious nature of the six (6) sustained charges in the instant case, you have breached the credibility of police ethics and failed to meet the responsibilities of the Constable position. Your conduct is totally unacceptable and discipline to be awarded is immediate dismissal from the Department.

It will be necessary for you to arrange with inspector-Personnel E.F. Burch for the return of all Company property, uniforms, etc.

Your’s truly,

J.B. Eggett

Superintendent, Pacific Region

Department of Investigation”

At the outset of the hearing, the parties, through their respective counsel, submitted a joint statement of issues and facts which the Tribunal will reproduce at this point.

JOINT STATEMENT OF ISSUES

1. D.H. Moore was employed as a constable by the Department of Investigation of Canadian Pacific Limited

2. On February 5, 1985, constable Moore was notified that a hearing would be held on February 14, 1985 to investigate six (6) allegations against him (Appendix A).

3. The disciplinary hearing did take place on February 14 and 18, 1985.

4. On February 26, 1985, superintendent J.B. Eggett notified constable D.H. Moore as follows:

“In view of your past disciplinary record and serious nature of the six(6) sustained changes in the instant case, you have breached the credibility of police ethics and failed to meet the responsibilities of the Constable position. Your conduct is totally unacceptable and discipline to be awarded is immediate dismissal from the Department.”

5. Constable Moore was in fact dismissed from the Department on that date.

6. The Association hereby contends that constable Moore should be reinstated to his position as constable in the Department of Investigation and fully compensated for all losses suffered as a result of his dismissal because:

a. Constable Moore did not receive a fair and impartial hearing in accordance with the provisions of the Collective Agreement and his dismissal is therefore null and void;

b. The dismissal is unfair and unjust and therefore contrary to the provisions of the Collective Agreement.

7. The company disputes the Associations contention and says that:

a) The Grievor received a fair and impartial hearing on February 14 and 18, 1985 in accordance with the Collective Agreement;

b) The said hearing established that the Grievor was properly dismissed for cause.

Montreal, January 17, 1986

_______________________________

HELENE LEBEL, Q.C. Counsel

Canadian Pacific Police

Association

_______________________________

Marc Shannon, Counsel

Canadian Pacific Limited

Appendix B referred to at paragraph 4 of this Joint Statement was in effect the letter of discharge dated February 26, 1985 above-reproduced.

The first question which the Tribunal will address is whether the Grievor received the fair and impartial hearing prior to discharge as required under the Collective Agreement, and which he maintains was denied him. In this regard, the Collective agreement at Articles 10.01 and 10.02 provides thusly:

“10.01 no employee shall be disciplined or discharged until he has had a fair and impartial hearing and his responsibility is established. Except as otherwise provided in Article 10.04 an employee will not be held out of service in excess of ten working days, pending the holding of a hearing. Such hearing shall be held as soon as possible and when suspension is involved, not later than twenty-five working days from the date of suspension unless otherwise mutually agreed.

10.02 An employee shall be given an advance notice of five working days of such hearing and be advised in writing of the time, place and subject matter of such hearing. An employee shall be furnished with a copy of his statement and copies of all evidence taken at the hearing and shall be present during examination of any witness whose testimony may have bearing on his responsibility. He may offer rebuttal evidence thereto.”

The Grievor had been a police constable in the employ of the Company since the month of February, 1978. At the time of his discharge, he was stationed in the Vancouver region and his duties consisted for the most part of surveillance and patrol of a vast area commonly referred to at the hearing as the “Coquitlam Yards”. As such, the Grievor habitually worked alone, carrying cut mobile surveillance or surveillance on foot. The observation to be made in this regard is that, working alone, the Grievor’s movements would be monitored largely by himself through inscriptions in a daily log 9notebook) and in a daily report which was referred to at the hearing as an activity sheet.

The evidence disclosed that the Grievor was assigned to duty on a work shift which coincided with the hours of 0001 to 0800 on January 1, 1985. It would not be necessary at this stage to review the series of events following January 1, 1985, which led the Grievor’s superior’s at a certain point in time to suspect that his notebook and activity sheet for his shift of January 1, 1985 did not accurately nor completely reflect his activities over the course of that shift. Suffice it to say that under such suspicion, Inspector-Personnel E.P. Burch, one of the Grievor’s superiors, summoned the Grievor to attend at the lather’s office on January 17, 1985, whereupon, without advance notice, he required the Grievor to respond to five (5) questions concerning the Grievor’s whereabouts during the entire course of his January 1, 1985 shift.

The Grievor initially responded to the five (5) questions put in a rather fashion, which prompted Inspector Burch to insist somewhat vehemently that the Grievor proceed forthwith to prepare and submit a full and comprehensive report as to his activities over the course of the shift in question. This the Grievor proceed to do. When this more detailed report confirmed the Company’s suspicions upon certain activities of the Grievor on the night in question which it considered improper and revealed additional inconsistencies, the Company resolved to treat the matter as disciplinary

Accordingly, on February 5, 1985, Superintendent J.B. Eggettt who, as it turned out, would conduct and preside over the hearing which is provided for under Article 10.01 of the Collective Agreement, as a prerequisite to discipline, forwarded to the Grievor the following letter, outlining the charges that had been formulated against him.

“Vanc., B.C., Feb. 5, 1985

From; J.B. Eggett

To: Constable D.H. Moore

Dear Constable Moore,

In accordance with Article 10.02 of the Collective agreement between Canadian Pacific Limited and the Canadian Pacific Police Association, you are hereby advised that a disciplinary hearing, at which you are to be present, will be held in the Training and Conference Room, Vancouver, B.C. at 1000 hours, Thursday February 14, 1985.

This hearing is in connection with the following allegations:

1. allegation that you shirked your duty during the 0001-0800 hours shift on January 1, 1985 by being absent without authority and abandoning your duty assignment.

4. Allegation that during the 0001-0800 hours shift on January 1, 1985, you misused the Department control car by leaving your assigned patrol area for personal reasons and without authority.

5. Allegations that during your 0001-0800 hour shift, January 1, 1985, you misused the Department patrol car for personal purposes to convey a person to their residence without authority.

6. allegation that during the 0001-0800 hour shift on January 1, 1985, while operating Deportment auto 4-21, you ran an R.C.M Police drunk driving roadblock in an unsafe manner and without excuse, thereby conducting yourself in a manner unbecoming a member of the Department.

This letter is to advise you that you may attend this interview with your representative or fellow employee should you wish to rebut or ask questions of this Constable.

If you do not wish to attend please advise this office in writing that you wish to waive your rights under section 10.02 of the Collective Agreement.

Yours truly,

J.B. Eggett, Superintendent

Pacific Region

Department of Investigation”

The hearing was proceeded with on February 14 and February18, 1985. As stated, this hearing was presided over by Superintendent J.B. Eggett who had been designated hearing officer. The Grievor was present throughout, accompanied by Constable S.B. Gregoris whom he appointed to assist him. A stenographer in the employ of the Company was in attendance to record proceedings so that a transcript of all proceedings would be available following the hearing.

At the outset of this hearing, superintendent Eggett set out the following “ground rules” which would apply throughout.

February 14, 1985

GROUND RULES - DISCIPLINARY HEARING

1. Seating arrangements

2. Cst. Moore and representative are not to communicate by any means while this hearing is in progress.

3. I (as Hearing Officer) will entertain requests for short recesses if reason is stated and at my prerogative.

4. All questions and answers are to be directed to the Hearing Officer.

5. Office Supervisor G. Carlisle will be transcribing these proceedings and I would like you to speak slowly and concisely to assist her. If necessary, I will ask you to do that should she find it difficult to make her notes.

6. Cst. Moore must answer all questions, otherwise an allegation of insubordination could be dealt with at a separate hearing.

7. The representative can ask questions of a witness through the Hearing Officer only to clarify an ambiguity.

Reference to the written grievance exposes a number of areas of complaint regarding the conduct of the hearing which the Grievor contends resulted in a denial of his right to a “fair and impartial hearing”. The Tribunal would categorize these complaints under the following general headings:

A. The seating arrangements imposed by superintendent Eggett whereby Constable Gregoris was not permitted to sit beside the Grievor nor to communicate with him while the hearing was in progress (such communication being limited to periods of recess which superintendent Eggett permitted upon request over the course of the hearing) in effect totally undermined the Grievor’s right to assistance of “a fellow employee or a member of the Association”, as required under the Collective Agreement.

B. The refusal of the company to have furnished to the Grievor detailed particulars of the charges levied against him when these had been requested on the Grievor’s behalf prior to the hearing constituted in effect a violation by the Company of its obligation to provide him, in advance of the hearing, with the “subject matter of the hearing”.

C. Superintendent Eggett’s insistence from the outset that the Grievor “answer all questions” under threat of discipline for “insubordination”, constituted intimidation tantamount to an absence of fairness and impartiality.

D. The manner in which the hearing was conducted (i.e., refusal to permit the Grievor to refer to notes, admission of certain evidence, the insistence that certain objections raised by Constable Gregoris not form part of the transcript but he recorded separately by the Superintendent and a willingness to receive evidence unrelated to the charges) constituted an injustice and tainted the hearing itself.

Under the collective Agreement before the Tribunal, there is clearly provision setting out procedural protections designed to ensure that employees subject to discharge have been treated fairly. In fact, the Collective Agreement before the Tribunal goes further than most in requiring that as a prerequisite to discipline or discharge a fair and impartial hearing be granted to the employee concerned. But this protection given that the Collective Agreement provides for recourse by grievance to arbitration and in effect trial “de novo” must be relegated to the level of a procedure which the company must follow in the discipline process, which procedure will itself be subject to review upon arbitration. On the matter of fairness, the issue at the arbitration stage will, where the question is raised, be whether the company has complied with the procedural requirements for discipline or discharge and any redress for an employee who feels himself aggrieved on such ground must rest in a demonstration that the procedure for discharge, as outlined in the Collective Agreement, has been contravened.

In effect, therefore, the Tribunal would be of the view that it must approach the grievance before it no differently than it would approach any grievance directed against discharge where a contravention of fundamental procedural requirements prerequisite to discharge is alleged. In this regard, the Tribunal has no doubt that the provisions of articles 10.01 and 10.02 were intended to be obligated and that a discharge in the absence of their proper application would justify nullifying the discharge upon arbitration. It would seem inconceivable to the Tribunal that the parties would have provided in their Collective Agreement to discharge or discipline as a mere procedural step without substantive connotation or consequence for its omission. As such, compliance with the exigencies of articles 10.01 and 10.02 would be an essential part of the discharge process and the omission to apply these provisions as they were intended to apply would constitute a basis for annulling the discharge upon arbitration.

This said, the Tribunal does not regard the “fair and impartial hearing” required under the collective Agreement in the same light as a fair and impartial hearing that one would be entitled to expect of a judicial or quasi-judicial body exercising a purely judicial function. What the Tribunal is saying is that, given that there exists a grievance and arbitration procedure designed to extend to the affected employee a full judicial-type hearing, the term “fair and impartial hearing” cannot receive the same connotation and meaning as that term must receive before a judicial or quasi-judicial body or, for that matter, an arbitration tribunal. In effect, from the Tribunal’s perception, it sees the Company in its application of Articles 10.01 and 10.02 not as a judicial or quasi-judicial body but as an employer who has assigned the obligation of listening in a fair and impartial manner to its employee and those who have furnished evidence against that employee prior to its decision to discipline or discharge, as the case may be.

This perception of the interpretation to be extended to the term “fair and impartial hearing” within the context of a clause in a collective agreement of similar purport to the one before the Tribunal was discussed in the decision of Consumers Gas Co. and International Chemical Workers’ Union, local 161, 15 L.A.C. (id), page 85. Under the collective agreement in that case, there was provision for a fair and impartial hearing prior to discipline or discharge. The comments of the arbitration board at page 88 are instructive.

“The parties, however, have agreed in art. 17 that certain supervisory personnel in the capacities as listed in the section are to conduct a fair and impartial hearing, and that, on the surface, presuppose that those persons have the capacity of doing so. In order to conduct such a hearing, it is necessary for the hearing officer to listen to the respective positions, and to make an independent decision. The ones on such a person in the circumstances where the person required to make the decision is an employee of one of the parties to the dispute, cannot be as high as what would be expected of the judiciary or members of administrative tribunals or arbitrators. The late Judge Reville dealt with this same section in a dispute between these parties in an (unreported) award dated January 7, 1965, and on this point stated:

“The provision for a fair and impartial hearing in art. 17.1 cannot of necessity be identical with or equivalent to a fair and impartial hearing before a judicial or quasi-judicial body, such as a Court or board of arbitration because of course there is no definitive practice band procedure laid down to guide and control the course of the hearing possessed of the same independence as judges and chairmen of boards of arbitration are presumed to have. There is no evidence that Mr. Mckay did not act in good faith or did not listen and accord proper weight to the statement of the Grievor and the arguments of his union representatives. This surely is all that is meant by the term “fair and impartial hearing” used in art. 17.1.”

The above sets out a fair and reasonable interpretation and application of the requirements of the person in the various capacities set out in this section to conduct this form of hearing. In the present case, although Mr. Smith had been informed of the situation by Mr. Erwin, he had not taken any direct action against the Grievor, and simply made an assumption that the Grievor had no intention of returning to his employment. When it was brought to his attention that there was a complaint concerning the absence of a hearing, he and the others decided that they would conduct a hearing, but he was not involved in the earlier circumstances as were Mr. Erwin or Mr. Red Smith. Prior knowledge of the circumstances, per se, does not necessarily lead to the conclusion that there is bias or unfair treatment. Those are factors which would have to be established in order to impugn the meeting in those circumstances. We find on the evidence that Mr. Smith met the test set out at the meeting and the submissions of the union representatives and the Grievor before making his decision. That is all that is expected of him in performing his task under this section.

Our conclusion is therefore that the company complied with art.17.1 in conducting a fair and impartial hearing within the terms of that provision on January 30^th before the disciplinary action was taken against the Grievor.”

This view was approved in a subsequent decision of Consumers Gas Co. -and- International Chemical Workers’ Union, Local 161, 15 L.A.C. (2d), page 266, at page 269.

“This board subscribes to the reasoning as set out above. The agreement of the union, as set out in art. 17.01, to come before a chairman who is a member of management, qualifies the meaning of the words “fair and impartial” as those words are used to describe a hearing chaired by an independent person. A member of management is not an independent person capable of conducting a hearing which meets the exacting standards of “fair and impartial” as connoted by those (?) when used in relation to a judicial or administrative hearing. The context within which these words are used in art. 17.1 caused the board to assign to them a meaning other than that suggested by counsel for the union. The purpose of the section, as the board reads it, is to provide the Grievor and his representatives with the opportunity to state their case to a person higher in the management hierarchy than the person recommending the discipline and to do so before a disciplinary suspension or termination is officially imposed. The essence of the substantive right conferred by the section is the right to be heard before a decision is taken. The board is satisfied that in the instant case the requirements of art.17.1 have been met. The Grievor was given the opportunity to be heard, he stated his case, his representation were considered and a decision was taken. Notwithstanding Mr. Deavitt’s prior knowledge, the evidence does not disclose that he acted towards Mr. Dodds in an arbitrary or discriminatory fashion or that he had made up his mind before the hearing. Mr. Dodds was afforded a “fair and impartial” hearing within the meaning of art. 17.1 of the collective agreement.”

In the present instance, the discharge procedure to which the Company was subject required that it provide the Grievor with advance notice of the hearing and of the subject matter of the hearing. At the hearing, the Company, presumably through a senior member of management, would be required to extend to the Grievor full opportunity to make his views known. In this regard, the terms “fair” and “impartial” are employed, the objective obviously being that the Company listen, to the extent that an employer is able, to the employee with an open mind. The affected employee is given the right as well to be present during the examination of any witness and to be given communication of all documentation relied upon for purposes of the decision. As well, such employee may call upon a fellow employee or Association member to assist him at the hearing.

After the extensive review of the transcript taken at the hearing before Superintendent Eggett and at the arbitration hearing, the Tribunal is satisfied that the company has sufficiently complied with the requirements of Articles 10.01 and 10.02 of the Collective Agreement. It has not, to be sure, conducted a hearing which could satisfy the requirements of fairness and impartiality that would be essential before a judicial or quasi-judicial body. One would readily identify certain aspects of the conduct of the hearing which would raise grave questions as to the fairness and impartiality of a hearing before such a body as, for example, the refusal to permit for the possibility of communication during the hearing between the Grievor and the employee whom he had designated to assist him and who presumably would serve as his counsel. But, this said, Superintendent Eggett was not constituted to act as a judicial or quasi-judicial tribunal. He was, in the final analysis, the representative of the Company.

In effect, the basic objective of Articles 10.01 and 10.02 has been met. The Grievor was extended a full opportunity to explain his position and to answer the charges levied against him. He was permitted to be present at the examination against witnesses heard by superintendent Eggett and even to submit questions to be put to much witnesses. A fellow employee designated by him was present throughout and recesses were permitted upon request over the course of the hearing to permit for consultation with this assistant. There is nothing to suggest that the Grievor was even remotely denied the opportunity of presenting to Superintendent Eggett any further explanations or evidence which might have influenced the lather’s decision.

The only area upon which the Tribunal would like to comment further would concern the refusal of the Company to furnish to the Grievor further details upon certain of the charges levied in response to the Grievor’s request for same in advance of the hearing. This request was contained in a letter forwarded by the Greivor’s representative, Mr. Gregoris, on February 6, 1985, which read as follows:

“February 06, 1985.

From: Steve B. Gregoris, Local representative, Canadian Pacific Police Association.

To: Superintendent J.B. Eggett

Subject: Regarding your correspondence to Constable D.N. Moore dated February 05, 1985 and clarification of same

Investigation: In order that Constable Moore be properly prepared and informed of the set out allegations, and in the event of a hearing, we respectfully request clarifications on the following points:

1) Could you please be more specific and explain at what times you felt Constable Moore allegedly shirked his duties while being absent without authority.

2) Could you please explain what entries you are referring to in his police notebook and patrol car activity sheet, that you allege are false.

3) Could you please explain what you feel Constable Moore falsified in his report to you dated January 17, 1985

4) Could you explain what time or times you allege that Constable Moore had left his assigned patrol area without authority.

This letter should also serve notice that constable Moore and Myself will be available on February 08, 1985 at 1300 hours for an interview to be held at the Coquitlam Police Office. From your correspondence it is my belief that you will have a member of the Royal Canadian Mounted Police present, to obtain a statement and for us to give rebuttal evidence and ask questions if appropriate.

Yours truly,

Steve B. Gregoris

Local Representative

Canadian Pacific Police Association,

Pacific Region, Vancouver, B.C.”

The Tribunal would think that the first item referred to in the letter of constable Gregoris concerning the allegation of shirking duties while being absent without authority relates to an incident of which the Grievor was fully aware. The obvious reference here was to the Grievor’s absence from his assigned work area for the purpose of driving his wife to her residence from the home of a fellow constable under circumstances with which the Tribunal will deal further on . accordingly, as far as the Tribunal is concerned, the furnishing of any further detail upon this item could have served little purpose.

The remaining three (3) requests in Constable Gregoris’ letter are all designed to assist the Grievor in responding to the charges of falsification. On this point, the charges brought by the Company clearly identified two (2) instances of alleged misconduct, the first concerning the Grievor’s leaving his assigned patrol area for personal reasons without authority, and the second to running an R.C.M.P. drunk driving roadblock in an unsafe manner and without excuse. It was the failure by the Grievor to record either of these instances in his notebook or daily activity sheet that the company considered a willful omission amounting to falsification.

The tribunal agrees that if the company wished to rely upon allegations of falsification that it should have furnished information upon what that falsification consisted of when such information was sought on the Grievor’s behalf. There can be little question that the Company’s failure to have provided the Grievor with this information may have put him at an unfair disadvantage in regard to this charge.

The allegation of falsification, however, was but only one of the charges against the Grievor. Thus, the question of the failure to furnish the details requested could not bear upon the matter of “fair and impartial hearing” or of being apprised of the…(last 2 lines unreadable).

Indeed, upon the matter of the charges of falsification, it would seem to the Tribunal that the Grievor may well have not been in a position to adequately address this charge. His notebook, activity sheet and subsequent reports contained numerous entries. Falsification in these entries was alleged in general terms and information concerning precisely in what the alleged falsification consisted was requested. As this information was not furnished, the hearing officer, as far as the Tribunal is concerned, could not have conducted the fair hearing which the Collective Agreement required upon this alleged infraction.

In any event, the Tribunal does not regard the allegation of falsification as particularly significant within the context out of which it arose. This is because, other than a neglect to admit the other infractions referred to in the notice of charges by inscribing them in his report, the Tribunal does not believe that the Grievor deliberately falsified his records and reports in a fraudulent manner or to gain any special advantage. As far as the Tribunal is concern, a failure to include a reference to certain events which took place on the evening in question in his records would not be tantamount to a deliberate falsification of those records. Simply put, the Tribunal cannot see that the gravity of an infraction would be compounded by the failure to inscribe in the record what would amount to an admission of the infraction.

Accordingly, while the Tribunal would conclude that the charge of falsification should be set aside, it is unable to share the grievor’s view that on the whole he was denied a fair and impartial hearing by the Company within the meaning of articles 10.01 and 10.02 of the Collective agreement. This being the case, the Tribunal will now consider the second issue raised by the grievance, namely, whether there was just cause for dismissal.

Briefly stated, the misconduct imputed to the Grievor relates to the fact that during the course of his work shift he is alleged to have abandoned his duties, without authorization, for the purpose of meeting his wife at the home of a friend and driving her home and, during the same shift, of running an R.C.M.P. drunk driving roadblock in an unsafe manner and without valid excuse. In connection with the former allegation, the Grievor is charged with using a patrol vehicle for personal reasons.

That the Grievor, while on duty, proceeded to the home of a friend to drive his wife home and, in so doing, used his patrol vehicle for the purpose, without authorization, and for a short period of time abandoned his duties, was admitted. Nor does the Grievor deny that he proceeded through the R.C.M.P. drunk driving roadblock.

Rather, the thrust of the Grievor’s defense to the charges rested in explanations of his conduct over the course of the January 1, 1985 work shift, which explanations were designed not to deny that the incidents occurred but rather to characterize these incidents in terms of conduct that was not culpable at all or, at least, was far less serious than the Company pretended. For example, the Grievor maintains that he proceed through the drunk driving roadblock because he did not regard such procedure as abnormal and unusual and had in any event been waived through the roadblock by the R.C.M.P. constable in charge. Again, while acknowledging the impropriety of leaving his assigned work area to transport his wife to her home without permission, he exposes the dilemma with which he was confronted, namely, the urgency of the situation (i.e., his wife’s illness and the fact that no one at the party was in a position to drive her home), one the one hand, and his suggestion that authorization which would normally have been forthcoming under such circumstances would have been denied him because of his poor relationship with Sergeant Weir, his immediate superior, during the shift in question.

On the evidence, however, the Tribunal is not satisfied with these explanations. The Grievor had attended a New Year’s Eve party at the home of a fellow constable where he remained until shortly prior to midnight. At the commencement of his work shift, the Grievor, according to the testimony of Sergeant Weir, informed the latter “not to bug him as it was New Year’s Eve and he had friends he intended to see and he also intended to visit his wife”. There is the further observation that the manner in which the Grievor recorded entries in his notebook during the January 1, 1985 shift, at least until 0500 hours, reflected a noticeable departure form the manner in which he normally recorded these entries on other shifts. More particularly, the inscriptions were obviously hastily and carelessly inscribed and are lacking in detail. As well and somewhat suspect and indicative in this regard is the Greivor’s radio call to Sergeant Weir at 0415 hours to inquire about the possibility of meeting with him that evening, after the Grievor at the commencement of his work shift had made it perfectly clear to Sergeant Weir that he did not wish to meet with him during that work shift and, in fact, had gone so far as to cancel a pre-arranged meeting that would , according to the Grievor, have taken place during of the shift. As to why the Grievor would have made such a call at a time when he was preoccupied with transporting his wife to her residence and with her condition remains unexplained by the Grievor. The more likely object of the Grievor’s call would have been to identify the exact location of Sergeant weir at the time so as to avoid a chance of meeting with the latter while the Grievor was in the course of proceeding along a route with his wife in the patrol car, which took his away form his appointed rounds, There is lastly the coincidence that constable Soulieres at whose home the party was in progress just happened to reach the Grievor by telephone at the Coquitlam police office at the very moment when the Grievor was entering that office.

There are simply too many coincidence and inconsistencies which, from time to time, emerge in the Greivor’s version of events. For this reason, the Tribunal in its outline and analysis of the activities of the Grievor over the course of the January 1, 1985 work shift prefers the evidence of Sergeant Weir as to the content of his conversations with the Grievor over the course of the January 1, 1985 work shift prefers the evidence of Sergeant Weir as to the content of his conversations with the Grievor that night. Once Sergeant Weir’s testimony is accepted upon these conversations, all of the inconsistencies and coincidences which emerge from the Greivor’s version of events that night are readily explained. Such explanation would involve the more likely conclusion that the Grievor had assumed his work shift that night somewhat grudgingly, having had to leave a New Year’s Eve party at midnight, at a time when that party was in full progress. This being the case, the Grievor did not approach his duties with the same degree of devotion and concern that would have been normal. His wife remained at the party and there is every indication that it had been prearranged that at some point in the evening he would attend at the party, at least for the purpose of taking her home. This would seem more likely to have been at the root of the Grievor’s conversation with Sergeant Weir at the commencement of his work shift, his failure to record entries in his notebook until the end of his work shift, the sparseness f these entries, the inconsistencies in the evidence as to the precise rimes that he proceeded through the R.C.M.P. drunk driving roadblock and at which he presented himself at the party, his radio communication with Sergeant Weir at 0415 hours and the coincidence of the phone call from Constable Soulieres at the Coquitlam police office.

Thus, on the whole, the Tribunal is drawn strongly to the view, upon the basis of what it has heard, that the Grievor’s approach to his work shift of January 1, 1985 was irresponsible and lacking in the concern that the Grievor’s duties would have required. The Tribunal is not at all satisfied that the Grievor’s duties would have required. The Tribunal is not at all satisfied that the Grievor’s attendance at Constable Soulieres’ party was matter of mere chance. As far as the Tribunal is concerned was the case in that such attendance was prearranged or, at least, intended by the Grievor form the very onset.

On the matter of the R.C.M.P. drunk driving roadblock, the evidence submitted by R.C.M.P. Constable Alexander was at variance with that of the Grievor. As far as he was concerned, all vehicles, without distinction, are subject to inspection at a roadblock and there could have been no justification, save for emergency situations, for proceeding through the roadblock which he was conducting. From Constable Alexander’s perspective upon the incident, the Grievor simply pulled out of line and proceeded through the roadblock without warning. He at no time waived the Grievor . In fact, he testified that he was about to give chase when he noticed that the Grievor, whose vehicle was unmarked, was wearing a police uniform and thereby assumed that the Grievor was on an emergency assignment. It was for that reason and no other that, according to this witness, he did not pursue the matter further.

The Tribunal, with little hesitancy, must accept the version of Constable Alexander, who is an independent witness and has no real interest in the case. The event would seem to have been in keeping with the Grievor’s general approach to his duties during the shift in question.

Thus and without entering further upon the evidence, it would seem clear to the Tribunal that the infractions involving the grievor’s absence from duty during his shift for personal purposes, without authorization, and the running of the R.C.M.P. roadblock have been amply established and would have merited a disciplinary response.

The Tribunal will now address the issue of whether the sanction of discharge imposed by the Company was justified in the circumstances. The Tribunal will not deny that the Grievor’s position is one which entails a high degree of responsibility. For one, he is a police officer. Equally as important, he is entrusted with surveillance of Company property, he was the only officer on assignment to cover a vast area so that the abandonment of his post without authorization would have been viewed as a serious matter. Nor can the Grievor’s conduct in running an R.C.M.P. drunk driving roadblock for no apparent reason or using his patrol vehicle for personal reasons be condoned.

But, on the whole, the Tribunal has great difficulty in viewing the matter before it as a discharge case. The Grievor was a police constable of seven (7) years’ service. He did report for his assignment on January 1, 1985, and for the most part his assigned rounds during that work shift, continuing in this regard until the end of the work shift, to be sure, but these as it turn out were without incident. Most importantly, the work shift coincide with New Year’s Eve festivities of which the Grievor would seem to have been very conscious and his approach to his duties generally. This would seem clear upon a simple comparison of the manner in which the Grievor prepared his notebook entries during either work shifts.

As well, the infraction imputed to the Grievor, although serious, cannot be said to be of so grave of a nature as to have been incompatible with his being maintained in service as a police constable. The Tribunal cannot see any fraud or dishonesty per se in what the Grievor did in the sense as has been suggested by the Company. Such suggestion, in the Tribunal’s view, would be a distortion of the character of what really occurred. On this point, the Tribunal would make reference to a degree of bad feeling which seems to have pervaded the relationship between the Grievor and certain of his superiors, which may have caused the Company to perceive the grievor’s misconduct in a far more serious light than might otherwise have been the case. The Tribunal would make the observation, in this regard, that the Grievor’s misconduct was only discovered during the course of an investigation that was provoked by the fact that the Grievor himself had demanded an investigation of certain statements about him made by Sergeant Weir, which the Grievor considered as unfair and prejudicial to his interests.

Nor can the Tribunal share company counsel’s submission that then “poor” discipline record of the Grievor provided further support for the Company’s decision. The last significant entry in this record dated back to July 27, 1983, some eighteen (18) months prior to the discharge and concerned a one-day suspension for lateness. This disciplinary penalty seems to have served its purpose as no further lateness appear in the Grievor’s work record until December 21, 1984 and on that day, the lateness reported consisted of a mere three (3) minutes. In regard to this latter entry, the Tribunal ids not at all certain that the incident of lateness to which it refers may not have passed without incident given that the lateness was minor and that the decision to discipline was only taken during the course of the investigation of the Greivor’s misconduct over the course of his work shift of January 1, 1985. In all, therefore, this record is not reflective of an attitude that would have been relevant in the context of assessing the appropriate form of discipline for the Grievor’s misconduct.

The Tribunal, therefore, would conclude that discharge was too severe in the circumstances and, as such, unjustified. As far as the Tribunal is concerned, discharge was an overreaction to what had taken place. The Tribunal can see no reason why a suspension could not have served the purpose of underlining to the Grievor the fact that the performance of duties on New Year’s Eve must be discharged with no less diligence and concern as during every other shift, given the high degree of responsibility of his position and the possible grave consequences of a less than responsible approach to them. In this regard and after considerable thought, the Tribunal has concluded that a suspension of three (3) months’ duration would have served the purpose.

For the foregoing reasons, the grievance is maintained in part; the discharge of the Grievor on February 26, 1985 is annulled and set aside and ordered stricken from the Grievor’s disciplinary record, to be replaced by a disciplinary suspension of three (3) months’ duration in response to the following infractions:

1. Shirking duty during the 0001-0800 hours shift on January 1, 1985 by being absent without authority and abandoning duty assignment for personal purposes and using patrol vehicle for same purposes.

2. During the 0001-0800 hours shift on January 1, 1985, while operating department auto 4-21, running a R.C.M.P. drunk driving roadblock without justification or excuse.

The disciplinary suspension will endure in lieu of the dismissal from the date of dismissal on February 26, 1986 until May 26^th inclusive; The Company will accordingly be ordered to reinstate the Grievor effective immediately with full rights and benefits and without loss of seniority and to compensate the Grievor for wages lost to him by reason of the dismissal over the period commencing May 27, 1985 to the date of reinstatement.

The Tribunal remains convened for a period of ninety (90) days following the date of the present decision for the purpose of determining the amount of the compensation to which the Grievor is entitled in virtue of the above in the event that the parties are unable to make such determination on their own.

DATED at Montreal on the 7^th day of February, 1986.

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Harvey Frumkin - Arbitrator