BETWEEN:

(the "Company")

AND

(the "Association")

SOLE ARBITRATOR: André Sylvestre

There appeared on behalf of the Company:

Me Jean Clerk

Me Raynald Lecavalier

And on behalf of the Union:

Pierre Boule

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

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 solemn declaration reads as follows :

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 :

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

Ms. Filion informed her Department Head, Mr. Brodeur, of the incident.

Mr. Brodeur then met with Mr. Chouinard, the Assistant-Superintendent for the St-Lawrence region. He informed Mr. Chouinard that an individual claiming to be a constable in the employ of the Department had 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, including thirteen police officers and a shift supervisor. There are also car patrols with access to this building. As well, supervisors, M.U.C. police, superior officers and uniformed Via Rail personnel see to the surveillance of the premises. Incidentally, threatening letters such as the one received shortly before the day of the explosion are turned over to M.U.C. police.

On September 3, Mr. Lafond was assigned to a fixed shift as a watchman at the console of the lobby in the building which houses the headquarters. On this date, after the bomb exploded, the Department evacuated Central Station, closed the stores and called in the technical section of the M.U.C. Police Department. But the plaintiff was in no way involved in this operation.

The following day, September 4, an atmosphere of panic still existed. Mr. Mathieu was informed of the recording on the same day. He listened to the cassette in the company of Mr. Chouinard and Mr. Charest.

Also the same day, he called Mr. Lafond to his office. The latter was on duty. In the presence of Lieutenant Brown, Mr. Mathieu informed Mr. Lafond that he was immediately suspended for having violated the provisions of the Department's instructional manual. Mr. Mathieu informed Mr. Lafond that he would not be discussing this subject any further in the immediate future, but that the plaintiff would have a chance to explain himself formally before long. For the time being, Mr. Mathieu asked 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 :

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

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 definitively 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 lie 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.

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 :

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, 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 co-operative 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 favour 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 request had been rejected.

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 :

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 defamatory 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 opinion of the employer, the evidence revealed without a shadow of a doubt that the action taken by Mr. Lafond on September 4 violated the directives of the Code of Ethics. Yet, Mr. Lafond was well aware of the provisions 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 to 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 much 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 :

Arbitrator Frumkin, in an award handed down on September 12, 1983, Canadian Pacific and Canadian Pacific Police Association, wrote on this question :

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 Labour 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:

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 judgement. 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 Labour Standards Act and which involved the plaintiff, St-Germain and Molson Breweries of Quebec. On the question of the culminating incident:

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 demerits 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 (signed) Me ANDRÉ SYLVESTRE