PROVINCE OF QUEBEC
THE CANADIAN NATIONAL RAILWAYS,
Hereinafter referred to as the « Company»
- a n d -
THE CANADIAN NATIONAL RAILWAY
Hereinafter referred to as the « Association»
IN A GRIEVANCE FILED BY :
MR. GILLES LAFOND,
Hereinafter referred to as the « Plaintiff»
Me ANDRÉ SYLVESTRE,
Me PIERRE BOULÉ,
Counsel for the Plaintiff
Me JEAN CLERK and
Me RAYNALD LECAVALIER,
Counsel for the Company
On September 14th, 1984, the Superintendent of the CN Police Department, Mr. Danylewich, informed Mr. Lafond that he had been dismissed for the following reasons :
"Suspended from your duties, from September 4, 1984 (5:30 p.m.) to September 14, 1984, as of which date you are dismissed for violating Sections 4.1.3. (items 7, 14 and 15) and 9.3.2 of the CN Police Instructional Manual.
Section 4.1.3. - Item 7 : falsifying any information or report ;
Section 4.1.3. - Item 14 : any act or omission contrary to good order and discipline, or conduct likely to bring discredit to the Department ;
Section 4.1.3. - Item 15 : publicity disparaging the actions of an official of the Company or its rules, regulations or orders ;
Section 9.3.2 : for having imparted departmental information to anyone except under due process of law, or as directed by or with permission of competent authority."
Hence the grievance, dated September 14 :
"Nature of grievance or facts or circumstances at origin of grievance : unjustified dismissal, lack of evidence. Violation by the employer of Section 14.7 of the Agreement.
Date on which the grievance occurred or the plaintiff learned of the facts that are at the origin of the grievance : 04/09/84 and 14/09/84
Remedy or settlement (time claim) : full reinstatement with all rights and privileges and any and all amounts lost, the whole with costs".
Mr. Lafond was hired by CN Police Department on July 15, 1974 as a constable. He took his oath of office on July 25, 1974. The text of this solem declaration reads as follows :
"I, Charles M. Cliche, Judge of the sessions of the peace in and for the City of Montreal, Quebec, by virtue of the powers invested in me, under the Canadian National Railways Act, appoint LAFOND, Joseph Yvon
Gilles, to act as a constable on and along the Canadian National Railway Network. This person has taken an oath before me as prescribed by Section 400 of the said law".
"I, LAFOND, Joseph, Yvon, Gilles, having been appointed a constable to act upon and along the Canadian National Railway under the provisions of the Railway Act do swear that I am a Canadian citizen ; that I will well and truly serve our Sovereign Lady and Queen in the said office of constable, without favour or affection, malice or ill-will, that I will, to the best of my power, cause the peace to be kept, and prevent all offences against the peace ; and, that, while I continue to hold the said office, I will, to the best of my skill and knowledge, discharge the duties thereof faithfully according to the law. So help me God".
Mr. Lafond took the same oath with regard to Via Rail Canada Inc., on November 23, 1981.
The Company’s police department is run by a Chief of Police. The headquarters are located in Montreal. The territory covered corresponds to that of the Company, which serves the entire country. The Chief of Police is assisted by 5 regional superintendents assigned to Edmonton, Winnipeg, Toronto, Montreal and Moncton. The superintendent is seconded by an assistant-superintendent. A regional detachment is made up of inspectors, assistant-inspectors, captains, special agents, lieutenants, sergeants, patrol-sergeants and constables. In the St. Lawrence Region, which more or less covers the territory of Quebec, the Department has a staff of 72 constables. In Montreal alone, there are 16 constables, 4 sergeants, 4 supervising lieutenants, 6 or 7 investigating lieutenants and a captain.
Constables are peace officers in the meaning of the Criminal Code. They are armed with a "38 special" revolver. Their role is to protect the Company, its personnel, passengers, goods and property. They have access at all times to the Company’s premises. Their jurisdiction covers the entire property of the Company. They possess powers of arrest accorded to peace officers. Furthermore, Section 401 of the Railway Act, R.S., chap. R-2 defines the jurisdiction of CN constables as follows :
"(1) Every constable so appointed, who has taken such oath or made such declaration, may act as a constable for the preservation of the peace, and for the security of persons and property against unlawful acts
a) in such railway, and on any of the works belonging thereto ;
b) on and about any trains, roads, wharfs, quays, landing places, warehouses, lands and premises belonging to such company whether the same are in the country, city, town, parish, district or other local jurisdiction within which he was appointed or in any other place through which such railway passes, or in which the same terminates, or through or to which any railway passes which is worked or leased by such company ; and,
c) in all places not more than a quarter of a mile distant from such railway.
(2) Every such constable has all such powers, protection and privilege for the apprehending of offenders, as well by night as by day, and for doing all things for the prevention, discovery and prosecution of offences, and for keeping the peace, as any constable has within his constablewick".
It has been accepted that Mr. Lafond was at all times related hereto well aware of the rights and obligations inherent to his duties.
At the beginning of September 1984, at the time of the events which led to the dismissal of the plaintiff, the Department had taken special security measures in view of the visit of the Pope to Montreal. The Department was particularly concerned about possible actions of subversive movements, especially if they took advantage of the arrival of a great number of visitors to Montreal.
On September 3rd, a bomb exploded in Central Station. The Department is responsible for security in this building, among others. The bomb had been placed in a baggage locker. It killed three people and injured forty others. Immediately following the explosion, Central Station was occupied by police officers from the Department, the M.U.C. and several RCMP agents. Operations were directed by the M.U.C. Police occupied Central Station for several days and maintained a continuous presence for two to three weeks. After the explosion and during the week leading up to the Pope’s visit, the atmosphere was extremely tense. The day of the explosion itself, the Department was informed of a second bomb scare and had to evacuate the premises.
Late the following morning, September 4, Pierre Pascau a well-known Quebec talk-show host, broadcast an interview with a person who identified himself as a constable employed by the CN Police Department. However, this person refused to reveal his name.
Ms. Filion, a member of the Company’s Public Affairs Department, was listening to media broadcasts concerning the explosion. She recorded the exchange between Pierre Pascau and the person being interviewed. The cassette of the recording and the transcription of the interview were placed in the file. The transcription of the conversation is as follows :
"The following is a transcription of a conversation heard over radio station CKAC, on Tuesday September 4, 1984, at about noon, between host Pierre Pascau and a police officer from Canadian National.
P.P: We have a police officer from Canadian National. Good afternoon sir.
C.: Good afternoon.
P.P: Do you have something to tell us ?
C.: Yes, I do, about the explosion, not only about the explosion, it’s in general. It’s about all calls and . . . all the ways we receive calls about bombs or communiques, there is really a casual approach on the part of the CN authorities, the CN Police, it’s too much, that is, all these calls are not taken seriously. The reason given is the heavy cost of ...
P.P: That it would entail if they did, followed up all of it ?
C.: That’s right, the calls, keeping personnel on overtime. However these expenses are not taken seriously when it’s a question of the well-being of those superiors who al... allow themselves frivolities.
P.P: Caller, does CN receive a lot of anonymous calls and letters ?
C.: I would say a lot, yes.
P.P: How many a week ?
C.: It comes more in periods. There may be whole weeks where there’s nothing at all, for sure, and at other times there may be seven, eight, ten a week.
P.P: Recently, have there been a lot ?
C.: There have been a few recently, yes.
P.P: Were you aware of this letter ?
C.: Yes, I was.
P.P: You knew about it ?
P.P: When ?
C.: It’s been more than a week.
P.P: That you personally have known about it ?
P.P: Did you read the letter ?
C.: No, I didn’t read the letter, but I was aware that there had been a letter sent.
P.P: What did people say about this letter ?
C.: There were instructions, to . . .
P.P: No, no, the Canadian National authorities ?
C.: Oh no, they all try to keep it secret.
P.P: You want to keep it secret ?
C.: Oh yes, they don’t reveal anything.
P.P: Were there others ?
C.: There were calls, yes.
P.P: Saying what ?
C.: Central Station is going to blow up and so on, all information like that.
P.P: Well it wasn’t accurate information because it . . . once, didn’t it ?
C.: Yes, that’s true, but I wonder, that is, how it is that companies ... have elements to work towards that with dogs trained to conduct searches, they have equipment to conduct that kind of search, and we don’t have any. All we have is our lives, putting ourselves in a locker that can blow up in your face.
P.P: How many police officers are there at Canadian National Central Station, let’s say.
C.: At Central Station, about four.
P.P: Only ?
C.: Yes, for the whole building.
P.P: And what are you supposed to do ?
C.: Ensure people’s security.
P.P: (laugh)... With four of you, oh yes, twenty-four ....... of course, eh ?
C.: Oh well, at night there are only two, because it ..... much in personnel.
P.P: And as you say, the bosses spend money on frivolities ?
C.: Oh yes, indeed, they pay themselves, they pay th.... good, easy time.
P.P: Give me an example.
C.: Well, they have cars provided for their personal use, for their trips ; it’s all tax-deductible for them.
P.P: Are you unionized ?
C.: We have an association but it doesn’t count for .... balance.
P.P: Yes, but listen caller, thank you very much ; you say you’re a CN police officer, eh ?
C.: I’m sure.
P.P: Good. Anyway, I’ve got your name.
C.: I can, I can meet you any time.
P.P: Thank you caller.
Ms. Filion informed her Department Head, Mr. Brodeur of this incident.
Mr. Brodeur then met with Mr. Chouinard, the Superintendent for the St. Lawrence region. He informed Mr. Chouinard an individual claiming to be a constable in the employ of the Dept. been interviewed by Pierre Pascau ; Mr. Chouinard was not aware of this fact. Mr. Brodeur invited Mr. Chouinard to step into his office. Ms. Filion played the recording. After listening for barely thirty seconds, Mr. Chouinard said that he recognized the voice of the person being interviewed. He said, "It is (our constable) Gilles Lafond". He then took the recording and left the office.
On his way to Central Station, he met Mr. Mathieu, the inspector in charge of security for Central Station and Head Office. Without revealing the name of the person in question, Mr. Chouinard told Mr. Mathieu that he had a recording he would like him to hear. Mr. Chouinard asked Mr. Mathieu to meet him in the regional office building. Mr. Mathieu agreed to meet him there several minutes later.
Upon returning to his office, Mr. Chouinard telephoned his superior officer, Superintendent Danylewich, and told him too that he had in his possession a recording which appeared to contain the voice of a constable from the Department. However, he did not reveal this individual’s identity. The superintendent said that he would come to Mr. Chouinard’s office.
When Mr. Danylewich arrived, Mr. Chouinard played the cassette for him. The superintendent immediately recognized the voice of Mr. Lafond. Mr. Mathieu arrived fifteen to thirty minutes later. Mr. Chouinard once again played the cassette. The inspector also immediately recognized the plaintiff’s voice. It was agreed that an investigation would be carried out by Mr. Mathieu who, incidentally, was Mr. Lafond’s superior.
Mr. Chouinard added, by way of commentary, that the plaintiff’s statements revealed information that had been confidential up until that time, such as the existence of a letter, the method of searching lockers, the lack of a dog trained to do searches, day and night personnel and the fact that management used Company staff cars. Furthermore, according to Mr. Chouinard, other statements appeared unjustified or not based on fact.
Mr. Mathieu described the personnel under his supervision Security at Central Station is maintained by fourteen individuals, thirteen police officers and
a shift supervisor. There are also .... with access to this building. As well, supervisors, M.U.C. police officers and uniformed Via Rail personnel see to the surveillance of premises. Incidentally, threatening letters such as the one .. shortly before the day of the explosion are turned over to M.U.C.
On September 3, Mr. Lafond was assigned to a fixed watchman at the console of the lobby in the building which .... headquarters. On this date, after the bomb exploded, the .... evacuated Central Station, closed the stores and called in the section of the M.C.U. Police Department. But the plaintiff was .. involved in this operation.
The following day, September 4, an atmosphere of .... existed. Mr. Mathieu was informed of the recording on the same day and listened to the cassette in the company of Mr. Chouinard and Mr. C...
Also the same day, he called Mr. Lafond to his office and the latter was on duty. In the presence of Lieutenant Brown, informed Mr. Lafond that he was immediately suspended for having violated the provisions of the Department’s instructional manual. He informed Mr. Lafond that he would not be discussing this subject in the immediate future, but that the plaintiff would have a .......... explain himself formally before long. For the time being, Mr. Mathieu requested Mr. Lafond to turn over his revolver, badge and I.D. card. Mr. Lafond asked why he was being suspended. The investigator said only that he was disciplining Mr. Lafond for having spoken on the radio without permission. On this note, the plaintiff left the room.
Several days later, Mr. Chouinard summoned the plaintiff by letter to a formal hearing :
"You are requested to appear at my office, on Monday September 10, 1984, at 10:00 a.m. for having violated Section 9.3.2 of the CN Police Instructional Manual, following a radio broadcast aired on Tuesday September 4, 1984 concerning the activities of the Department.
In accordance with the provisions of your Agreement, you may appear at this interview accompanied by one or two fellow workers".
The plaintiff reported to Mr. Mathieu’s office on the morning of September 10, accompanied by two colleagues. Mr. Mathieu handled the hearing and asked all the questions. Mr. Chouinard was present at the hearing but stated at the very beginning that the interview would be conducted by Mr. Mathieu.
Mr. Mathieu first explained to Mr. Lafond the infraction of which he was accused. He then played the recording for Mr. Lafond and asked him if he was the unidentified person. Mr. Lafond said "no". This answer was followed by a moment of silence. Then Mr. Mathieu once again asked the same question. The plaintiff once again answered "no". Mr. Mathieu then indicated to him that there was nothing more to say. He asked the two union representatives if they were satisfied with what had happened during the hearing. The two police officers responded in the affirmative.
However, ten or fifteen minutes later, knowing that Mr. Lafond was still on the premises, Mr. Mathieu went to meet him. He proposed that Mr. Lafond be recorded reading the transcript of the text of his answers to Pierre Pascau in order to make a comparison. Mr. Lafond declined this offer.
On September 11, Mr. Mathieu prepared a report for Mr. Danylewich :
"On September 4, I suspended "Gilles" LAFOND from the department for having violated the CN Police code of ethics, namely, for having given an interview to host Pierre Pascau as part of the program "L’Informateur", a radio conversation heard that same day, around noon, over radio station CKAC. All of this is contrary to section 9.3.2 of the CN Police Instructional Manual.
Summoned to my office for Monday September 10, 1984, at 10:00 a.m., Mr. Lafond appeared at the date and time indicated. He was accompanied by his fellow workers, constables Maurice Bergeron and Jean-Pierre Verret, whom he had chosen to represent him at the interview. Mr. Yvon Chouinard, Assistant Superintendent, was also present at this meeting.
At that time, I repeated to Mr. Lafond the reasons for the meeting and mentioned to him again that after hearing the recording of the so-called interview between Pierre Pascau and a CN Police Officer, we ventured to believe that he was that police officer and that, consequently, he had contravened a departmental directive, and this section was read to him in its entirely.
This clarification was immediately followed by everyone’s listening to the cassette containing the conversation recorded by Public Affairs, at about noon on September 4, 1984.
When this cassette had been heard, I asked Gilles Lafond if he was the police officer who had given this interview. He answered that he was not that person.
After a long silence, I asked Mr. Lafond the same question over again and, once more, the same answer ; he denied it all.
I therefore indicated to him that we had nothing more to say to each other, that that ended the interview and that a decision would be reached later with regard to him.
About fifteen minutes later, knowing that Mr. Lafond was still on the premises, I went to meet him and, in front of constables Bergeron and Verret, I proposed that we make a recording of him reading the text of the transcription of the cassette, to give him the opportunity to clear himself of the accused action. Mr. Lafond declined this offer".
The decision to dismiss Mr. Lafond was taken by then - Superintendent Charest, who was in fact replacing the Chief of Police, who was gravely ill at the time.
Mr. Charest took this decision because in his opinion the bond of trust between the Department and the plaintiff had been definitely broken.
On the one hand, the action taken by the plaintiff on September 4 was very serious in itself, particularly given the context. Some of his statements to Pierre Pascau were in fact false and the circumstances under which he spoke were extremely difficult, not only because of the explosion but also because of the imminent arrival of the Pope. Furthermore, during the interview, he revealed confidential information such as the number of personnel and the state of the Department’s equipment. In doing so, he violated Sections 4.1.3 7), 4.1.3 14), 4.1.3. 15) and 9.3.2 of the Code of Ethics.
When the need for discipline arises, it is System policy that it be correction-oriented and a system of assessing Demerit Marks for violations is used by this Department.
A CN Police Officer is subject to disciplinary action ranging from a Corrective Interview to Dismissal when Management and/or employee efforts fail to produce an acceptable level of performance.
Unacceptable actions include :
7) Falsifying any information or report.
14) Any act or omission contrary to good order and discipline, or conduct likely to bring discredit to the Department.
15) Publicly disparaging the actions of an official of the Company or its rules, regulations or orders.
An officer will treat as confidential the business of the Department and will not talk for publication, be interviewed, make public speeches or impart departmental information to anyone except under due process of law, or as directed by, or with permission of competent authority.
If requests to give lectures, speeches, interviews, etc.., are received, direction should be sought from Supervisors. When approached for information on departmental matters by news media, refer the enquirer to the Public Affairs Department and advise a Supervisor. Private telephone numbers and home addresses of CN personnel must not be given to anyone outside of the Department, unless the request comes from a competent authority".
On the other hand, in Mr. Charest’s opinion, the plaintiff’s disciplinary record indicated that he did not possess the required qualities to be a good police officer. In this respect, it was accepted that if Mr. Charest were to be heard on this question, he would repeat verbatim what appears on this subject in the statement presented by counsel for the Company :
Summary of the personal record of Constable GILLES LAFOND
3. On March 21, 1977, at the wheel of patrol car #1, answering a call for assistance from Constable Daigneault at Central Station’s Belmont garage, he drove with the siren and flashing lights going. After slowing down at the corner of Peel and St. James, he went
through the red light and caused a major accident with property damage to the two vehicles involved, including the department’s car. He was held responsible for this accident caused by his failure to make sure the way was clear ahead of him. He received 15 demerit marks.
4. On March 29, 1978, following twelve consecutive months of active service, free from discipline, 15 demerit marks were deducted from his record.
5. On July 15, 1978, Constable Gilles Lafond reported late to Sergeant Pelletier to begin work. The sergeant noted that he smelled of liquor and his eyes were red. He refused to let him work and asked him to leave the premises. Lafond refused to leave the premises and created a commotion at the Communications Centre. His condition, the insubordination and the disturbance he caused gave him 20 demerit marks. Copies of the documents related to this incident are produced in support of this statement as exhibit "B".
6. On February 22, 1979, at 10:40 p.m., Constable Gilles Lafond accidently discharged his personal firearm, a .22-calibre, in the regional centre’s locker room. It shot through some metal lockers without injuring anyone. He received a written reprimand for bringing a personal firearm to work without permission. A copy of the written reprimand is produced in support of this statement as exhibit "C".
7. On May 9, 1979, he received a written reprimand for not reporting to work on the night shift. A copy of the said reprimand is produced in support of this statement as exhibit "D".
8. On February 20, 1980, Gilles Lafond’s record was assessed with 5 demerit marks for his having climbed on the trunk of patrol car #22 to check the lead numbers of the railway cars. The paint on the trunk was scratched. At this time, Mr. Lafond’s disciplinary record contained 35 demerit marks. Copies of the documents related to this incident are produced in support of this statement as exhibit "E".
9. On May 4, 1980, he was found asleep when he was on guard duty at the Shops. His record was assessed with fifteen demerit marks for this, for a total of 50 demerit marks. Copies of the documents related to this incident are produced in support of this statement as exhibit "F".
10. On January 23, 1980 and April 13, 1980 he called in sick to CN and claimed sick pay. He went to work for another employer during this time and was paid by CN Police. As a result, Mr. Lafond was suspended for a three-month period. He officially rejoined the CN Police Department on December 23, 1980. Copies of the documents related to this incident are produced in support of this statement as exhibit "G".
11. December 23, 1981, following twelve consecutive months of active service, free from discipline ; 20 demerits deducted, leaving a balance of 30 demerit marks.
12. On August 4, 1982, Mr. Lafond was absent from work, allegedly because of an injury sustained playing baseball. On August 6, 1982, he submitted a written claim to his inspector for the day of August 4.
On August 8, 1982, at 3:00 p.m., Gilles Lafond lodged a complaint of assault with the MUC Police. This had allegedly occurred on August 4, 1982 at 9:30 p.m. in a bar at 1401 Wellington. He named his alleged assailant to the police.
By chance, the existence of the complaint of assault was discovered. The MUC Police investigation proved that Lafond had been assaulted at the Café Belmont but that he had wilfully misrepresented the account of this event.
His record was assessed with fifteen demerit marks for all these incidents, bringing his total to 45. The relevant documents are produced in support of this statement as exhibit "H".
13. August 4, 1983, following twelve consecutive months of active service, free from discipline ; 20 demerits deducted, leaving a balance of 25 demerits.
14. August 4, 1984, following twelve consecutive months of active service, free from discipline ; 20 demerits deducted, leaving a balance of 5 demerits".
For his part, Mr. Lafond was the sole witness to testify on his behalf.
Before joining the Department in 1974, he had worked as a special constable at the Palais de Justice in Montreal, a prison guard and a private investigator. He is married and has three children.
He admitted at the outset having granted the interview to Pierre Pascau on September 4, 1984. He then explained the circumstances that led him to take such an action.
On September 3, 1984, while driving to work at Police headquarters, he heard a radio report that an explosion had just taken place at Central Station. Upon his arrival, he noticed that there were a great number of police officers on the premises. He went to his post at headquarters. His shift began at 3:00 p.m. and ended at 11:00 p.m.
During the day, he was in continuous contact with his colleagues, who were assigned to other posts. They exchanged information of all sorts on what was going on. He both received and gave out information. He became very upset upon finding that except for a fortunate delay, two of his friends, constables Smith and Montcalm, would most certainly have been killed. If they had not stopped for several minutes to talk with two other colleagues, at the time of the explosion they would have been in the baggage lockers sector, which they were in charge of searching. The plaintiff was disgusted because he had long felt that the Company didn’t care enough about its police officers to equip them to safely handle a dangerous situation such as bomb attack.
At the end of his shift, at 11:00 p.m., he went to a bar with two of his colleagues. They discussed the day’s events for approximately two hours. He had a number of drinks with them. He went to bed late. He slept poorly. The following morning, he had several drinks upon rising. He continued to think about what had happened the day before. He concluded that until someone had actually died, the Company would not be cooperative regarding safety. It was up to him to change the situation. Indeed, all the Association’s requests to date had been rejected
Finally, he felt he had found a solution : making the public aware of these problems. He telephoned Pierre Pascau. Before going on the air, he told the radio host that he felt his show had enough impact with the public to move things ahead in favor of the police officers. He added that for the Company, the life and safety of the constables counted very little. Mr. Pascau replied that Mr. Lafond had to talk about specific facts. If not, he would have to hang up. The plaintiff agreed and the discussion was recorded.
Upon his arrival at work, at approximately 2:30 p.m. the same day, he ran into a colleague, constable Gagnon, who laughingly told him that his superior officers were already talking about dismissing him for what he had done.
At 5:00 p.m., he met with Mr. Brown and Mr. Mathieu, at which point he was suspended.
Over the next few days, he came to work to talk with his colleagues. They exchanged information with him and two or three days later, on September 7, he became convinced that he would be dismissed. However, he met with Mr. Charest, who told him that a decision had not yet been taken and that he would be summoned to a hearing.
The said hearing took place on September 11. Mr. Lafond reported to Mr. Mathieu’s office accompanied by two union representatives. At this point, the plaintiff acknowledged as correct the version of events presented by Mr. Mathieu.
The presenting of evidence was concluded with the following admission by the employer. Mr. Lafond had already complained to his colleague Paul’Hus, the union representative on the safety committee, about the lack of protective equipment within the Department. Mr. Paul’Hus agreed to raise this question at a future committee meeting. Some time later, Mr. Paul’Hus spoke to Mr. Lafond about having raised the issue and the plaintiff understood that the union’s request had been rejected.
DECISION AND GROUNDS FOR DECISION
Before getting to the heart of the matter, a preliminary question must be examined. Did the employee’s superior officers respect the procedure laid down in paragraph 14.7 of the Agreement ? This provision holds that :
"Whenever an employee is requested to appear at a hearing or requests a hearing on his own behalf for the purpose of answering to his alleged breaking of rules, he may be accompanied by one or two fellow employees who may be accredited representatives of the Association. The employee or his representatives shall have the right to question attending witnesses in an orderly manner and they shall also be shown sufficient evidence related to the case. The employee shall be given at least three days’ notice of such hearing and the reason(s) therefor. The officer conducting the hearing on the Company’s behalf shall not be the same officer who was instrumental in reporting the employee for allegedly breaking the rules. In the application of this paragraph the Local President will be provided with a simultaneous copy of all notices for hearings".
Evidence indicated that it was Inspector Mathieu who told the plaintiff that he was suspended on September 4, and who conducted the hearing on September 11.
However, in the opinion of the arbitrator, Inspector Mathieu was not "the same officer who was instrumental in reporting the employee for allegedly breaking the rules". Indeed, it was Mr. Chouinard who set the process in motion ; after receiving the information from Ms. Filion and hearing the recording, it was he who informed Superintendent Danylewich. In other words, Mr. Chouinard was the "officer who was instrumental in reporting the employee". Therefore, it is the opinion of the undersigned that the Department’s management respected the established procedure. Let us now turn to the heart of the matter.
In his presentation, counsel for the plaintiff suggested that the text of Mr. Lafond’s statement to Mr. Pierre Pascau be closely scrutinized. He pointed out that the plaintiff was poorly prepared. Mr. Lafond never took the initiative during the discussion and the radio host followed a suggestive line of questioning. Mr. Lafond answered certain questions too quickly. He at no time attacked the Company and the Department in a virulent or diffamatory fashion. Furthermore, his accusations were based on fact. There was indeed an atmosphere of panic. Moreover, the fact that his two colleagues had nearly been killed was a factor likely to accentuate the seriousness of his offence. In fact, counsel for the plaintiff suggested that the Company used Mr. Lafond as a scapegoat.
In all deference, the undersigned can not agree with this line of reasoning. It might be relevant if, for example, the radio host had himself discovered the plaintiff and interviewed him in an impromptu fashion. At least this would have
explained, in part, the reason for the answers given, their thoughtless nature and
the apparent resentment. However, in this case, and this element makes all the difference, it was the plaintiff himself who phoned Pierre Pascau. Furthermore, and by his own admission, Mr. Lafond talked with the radio host prior to the broadcast. At that time, he told Mr. Pascau that he wanted to use the broadcast as a platform. In such circumstances, one cannot speak of a lack of preparation or reflection, on the contrary.
In the opinon of the employer, the evidence revealed without a shadow of a doubt that the action taken by Mr. Lafond on Septemebr 4 violated the directives of the Code of Ethics. Yet, Mr. Lafond was well aware of the provision of the instructional manual.
The arbitrator does agree with counsel for the Association that the plaintiff did not violate item (7) of Section 4.1.3 of the manual. Indeed, the infraction covered by this provision, the falsification of a report, is of a very different nature than false information given to a radio station. The words "falsification of a report" mean a dishonest representation made by an employee in a communication that his duties bring or oblige him to provide, with the intention of deceiving the person receiving the communication. This might involve, for example, a report of an incident or a summary of daily activities directed to superior officers. But the untimely statements made to Mr. Pascau do not fall into this category.
However, it is clear that Mr. Lafond knowingly violated the three other directives mentioned in the dismissal notice.
By contacting Pierre Pascau, Mr. Lafond either deliberately or carelessly damaged good order and discipline. He also brought discredit on the Department. In doing so, he violated the provisions of paragraph 4.1.3 14).
Moreover, acting against the provisions of paragraph 4.1.3. 15), he publicly condemned the actions of the Company’s official representatives. What is more, he made false accusations in doing so.
Finally, he failed in his duty to be discreet, an obligation specifically covered in Section 9.3.2. He revealed confidential department activities over the air. This act tended to weaken the credibility of the Department as so the solidity of its protection system and to further stir up public opinion.
Counsel for the Company pointed out three factors which accentuate the seriousness of the action taken by the plaintiff.
The first of these three factors was the importance of Mr. Lafond’s position. He was a constable invested with the duties of a peace officer. He was bound as such by obligations arising from the law and his code of ethics as from the double oath of office he had taken.
The duties and obligations of a railway constable are not only provided for by law but are also acknowledged by jurisprudence. For example, in the case of Rex v. O’Brien, (1919) C.R.C. p. 282, the Supreme Court of Alberta wrote :
"... Obviously the intention was to create a sort of Dominion police. They are to be appointed on the nomination of the railway authorities and doubtless must be paid by them but when appointed by them they are public constables as much as in the case of constables appointed and paid by municipalities. They are officers of the law and probably in no sense agents of the railway company, though it is not necessary to speak definitely as to this. In such circumstances there would be no reason why Parliament may not have intended them to be, as I have said, a sort of general Dominion police with authority throughout the Dominion wherever the Dominion railway runs and in its immediate neighborhood. Under section 301 they are to protect not merely the railway property and the railway officials but the public generally, both in person and property".
Arbitrator Frumkin, in an award handed down on September 12, 1983, Canadian Pacific and Canadian Pacific Police Association, wrote on this question:
"There is no question upon evidence that proper occasion for discipline existed and the parties acknowledge as much. The Grievor had asumed a position of high responsibilities. He was a police officer in charge of seeing to the security and surveillance of an extensive territory containing merchandise parts and equipment of vast value. Working alone as he did, his position entailed a high degree of trust upon which his employer was entitled to rely. The only question which the grievance raises and to which the parties addressed themselves is whether the sanction of discharge imposed by the Company to redress the misconduct of the Grievor was too severe in the circumstances.
The Tribunal will repeat that the Grievor had assumed a position of police officer involving a high degree of responsibility. The Company had placed a great deal of trust in the Grievor in assigning him to establish and
maintain surveillance of a large territory containing property of great value belonging to a third party. It had every right to assume that the Grievor would see to his responsibilities and be present in the railway yard at all times. The Grievor could have had no doubt whatsoever in his mind that to leave his post was a serious matter. In fact, he was required to report to central office every two (2) hours and it is not difficult to imagine what the consequences of what the Grievor did might have been for the Company. The Grievor’s actions can only be characterized as misconduct of the utmost gravity amounting to wanton irresponsibility on his part. Thus, the Tribunal cannot in good conscience blame the Company for the manner in which it viewed the Grievor’s actions".
One of the obligations expected of all employees and, particularly, a police officer, is loyalty towards his employer. This obligation of loyalty has been recognized and sanctioned by different courts. In this respect, one can refer to the following judgement : Fraser and the Labor Relations Board in the Civil Service (1985) 2 S.C.R. p. 456. The judge summarized this decision of the Supreme Court of Canada as follows :
"A job in the public service has two dimensions, one relating to the employee’s tasks and performance and the other to the perception held by the public. Appellant’s criticisms were correctly characterized as job- related given the importance and necessity of maintaining an impartial public service. The public interest in both the actual and apparent impartiality of the public service dictates a general requirement of loyalty on the part of the public servant to the Government of Canada, as opposed to the political party in power. In some circumstances it may be appropriate to express opposition to the government’s policies. Appellant’s sustained and highly visible attacks on major government policies, however, amounted to a lack of loyalty to the Government inconsistent with his duties as an employee of the Government.
Appellant’s effectiveness as a public servant was impaired, with respect to both his specific job and his wider capacity as a public sevant, by his public statements, notwithstanding no direct evidence to that effect. The rule that there be direct evidence of impairment to perform a specific job is not absolute. When the nature of the public servant’s occupation is both important and sensitive and when the form and context of his criticism is extreme, an inference of impairment can be drawn. Direct evidence of impairment of the wider capacity as public servant, too, was not necessarily required. It is open to an adjudicator to infer impairment on
the whole of the evidence if there is evidence of a pattern of behaviour which an adjudicator could reasonably conclude would impair the usefulness of the public servant. The substance, form and context of appellant’s criticism made the inference of impairment irresistible".
Secondly, when the plaintiff’s statements did not contain confidential information, they were largely false. By acting in this manner, not only did he betray the trust that his superior officers may have had in him but, what is more, he showed extreme lack of judgment. In itself, his action was unspeakable. In order to publicly denigrate his superior officers and the Department, he had no hesitation in starting false rumours and revealing information to which he had access only because of his position as constable.
Thirdly, as a final aggravating factor, the arbitrator must consider the set of exceptionally critical circumstances surrounding the beginning of September, 1984. Mr. Lafond made his unfounded and malicious criticisms the day after the explosion of the booby-trapped package, and one week prior to the arrival of the Pope, all of which tended to accentuate the atmosphere of panic that had taken hold, both within the Department and among the general public.
Therefore, the arbitrator believes, based on the evidence, that by his actions Mr. Lafond brought discredit on the Department and the Company, publicly condemned the actions of his superior officers and, more specifically, during an extremely critical period, revealed confidential information to the public without authorization. This was an extremely serious set of infractions and would justify the immediate dismissal of Mr. Lafond, except for extraordinary extenuating circumstances.
Does the record make mention of circumstances such that the arbitrator could justifiably intervene, overturn the dismissal and replace it with a less severe sanction ?
Upon reflection, the undersigned believes that he is obliged to reply in the negative.
On one hand, it was only when he came before the arbitrator that Mr. Lafond admitted his wrongdoing. Previous to this, he had denied everything when questioned by his superior officers during the hearing of September 11, which had nevertheless been convened to allow him to explain his side of the story. Furthermore, based on the evidence, Mr. Lafond at no time showed any remorse except, perhaps, before the arbitrator. However, in this case, he was smart enough not to deny the evidence.
On the other hand, and above all, the plaintiff’s disciplinary record was such that it aggravated the seriousness of the actions he took on September 4.
Counsel for the Association invoked a line of reasoning taken by arbitrator Foisy, which the undersigned is also quite willing to examine. In this award, made on July 11, 1984, the arbitrator received a complaint lodged under the provisions of Section 124 of the Labor Standards Act and which involved the plaintiff St-Germain and Molson Breweries of Quebec. On the question of the culminating incident :
"The concept of a culminating incident which allows the employer, once an infraction of a disciplinary nature has been proven, to consider the employee’s entire record and to impose a disciplinary measure that not only takes into consideration the culminating incident but the entire record as well, is acknowledged by both jurisprudence and doctrine alike : Palmer, Collective Agreement Arbitration in Canada, 2nd Edition, pages 284 to 289, Brown and Beatty, Canadian Labour Arbitration, 2nd Edition, no. 7:4310 et seq.
It is not essential that the action being reprimanded be of the same nature as those for which the plaintiff was reprimanded in the past, and which are part of his record, for the entire record to be taken into consideration (Refer to Canadian Westinghouse 13 L.A.C. 95 (Reville). In this case, St- Germain does not contest the fact that the accident for which he was found responsible makes him liable for disciplinary measures. As I mentioned above, if the Code of Gravity is applied, only the accident record should be considered when doing so. In contrast, if one applies the theory of the culminating incident, the plaintiff’s entire record can be considered when deciding on a sanction.
Although it is not necessary for the culminating incident to be of the same nature as those already on his record for the theory to be applied, this is nevertheless an important criterion to take into account when deciding how much weight should be given to the previous record in determining the sanction to be improved".
However, in this affair the plaintiff, St-Germain had been dismissed for being involved in an accident for which he was responsible. The record submitted as evidence criticized him, among other things, for his high rate of absenteeism. The day before his dismissal, he had been suspended for a recent absence. Arbitrator Foisy refused to consider this item, particularly because of the different nature of the offences being criticized.
Consequently, the undersigned believes that he is obliged to consider the plaintiff’s record in order to evaluate the degree of severity of the sanction. In this regard, he cannot deny the fact that the most recent offence for which the plaintiff was disciplined goes back to 1982 and that, from this time until September 4, 1984 two years had gone by and 40 demerit marks had been removed from his record. However, even when this factor is taken into consideration, the plaintiff’s record was sufficiently blemished so as to prevent him from claiming, at the time of his dismissal, that he had provided ten years of good and loyal services. The acts for which he had been criticized and disciplined since 1977 involved not only the relatively benign character of an overly-high rate of absenteeism. On the contrary, they were serious acts in themselves. And while the arbitrator acknowledges that they were of a different nature than the misdemeanour committed on September 4, he cannot help but conclude that each of the infractions appearing on the plaintiff’s disciplinary record were of sufficient gravity to weaken the bond of trust between Mr. Lafond and the Company. As Mr. Charest testified, Mr. Lafond’s disciplinary record reveals that since 1977 he had been reprimanded and suspended for an endless number of reasons, including negligent operation of a motor vehicle, acts of insubordination, sleeping on the job and fraudulently claiming sick days.
For all these reasons, taking into consideration as much the action taken on September 4, 1984, as the plaintiff’s disciplinary record, and the entire set of other circumstances, the arbitrator does not believe that there is any justification for intervening to lessen the sanction. Therefore, he must reject the grievance.
BERTHIERVILLE, SEPTEMBER 4, 1986
Me ANDRÉ SYLVESTRE,