IN THE MATTER OF AN ARBITRATION

between

The Regional Municipality of Metropolitan Toronto Police Services Board

and

The Metropolitan Toronto Police Association

Grievances re accredited lieu time and sick time credits

Before: R. L. Jackson Sole Arbitrator

Appearances:

For the Board: Darrel Smith, Counsel Len Hazel, Manager of Labour Relations

For the Association: Jack Ritchie, Vice President Alexandra Girard, Counsel Murray Calder, Grievor Joseph Camilleri, Grievor

Hearings were held in this matter in Toronto on 5 February and 29 April 1996.

This is a grievance in which the Metropolitan Toronto Police Association argues that

the employer, the Metropolitan Toronto Police Services Board (hereinafter referred to as the

Board), violated both the collective agreement and the Police Services Act. The Association

argues that the Board violated the collective agreement in denying sick leave credits and lieu-

time "floater" days to two officers while on suspension with pay, and the Police Services Act

in maintaining a record of the suspensions. I will deal with the latter issue at the end of this

award.

Under the terms of the collective agreement in place between the parties, officers are

entitled to 1.5 sick days per month of "unbroken" service, pursuant to Article 12.02. They

are also entitled to two lieu-time "floater" days per year, pursuant to Article 9.01. These

two articles are set forth below.

Each member shall receive a gross credit of one and one-half days for each unbroken month of service with the Force, such credit to be cumulative. For the purpose of this clause, service shall be not be broken by a member's absence from duty caused by illness, except as provided in clause 12:03 hereof or by injury or accident occurring while on duty or by holidays, vacations or days off or by leave of absence while on military service as provided in clauses 17:07 or by disciplinary suspension provided the member has worked some portion of said month.

9.01 (b)

In addition to the holidays provided in (a) above, every member who has completed six months service on June 1st of any year shall, on that date, have credited to hidher lieu time bank one day's credit at straight time (i.e. eight hours) and every member who has completed six months service on October

1st of any year shall, on that date, have credited to hislher lieu bank one day's credit at straight time similarly calculated, such time in each case to be used in accordance with the lieu time provisions of the Agreement.

The Facts

The facts, involving Police Constables Noel Camilleri and Murray Calder, are

reasonably straightforward and are not substantially in dispute.

P.C. Camilleri, who joined the Force in February 1976, was serving with 54 Division

on community foot patrol duties in August 1993 when he was charged criminally, as well as

under the Police Services Act disciplinary provisions, and suspended (with pay) from duty,

effective August 26. The letter of suspension drew P.C. Camilleri's attention to Force Rule

4.8.2 which set out:

TO REPORT DAILY

When police officers are suspended from duty, they shall report to their unit commander each weekday, by telephone or in person, as directed by such unit commander, with the exception of Statutory Holidays and vacation.

Thus, each weekday morning during his suspension, P.C. Camilleri presented himself

at 54 Division and reported to either his Unit Commander or his designate. Upon reporting

in, he might or might not stay and talk with Inspector Fernandez, 54 Division's unit

commander, but it is clear that he did not perform any police work, in the normal sense of

that term.

His suspension ended on August 2, 1994, when he was reinstated on restricted duty.

During the period of suspension, P.C. Camilleri received his normal base pay, but was

neither credited with any sick leave nor given the so-called lieu-time "floater" days. It

should be noted that of the three Criminal Code charges filed against P.C. Camilleri, two

were withdrawn and he was acquitted on the third. The charges under the Police Services

Act are still outstanding, however, having been held in abeyance pending the outcome of the

criminal charges.

P. C. Murray Calder joined the Force in May of 1968. In February of 1991, he was

attached to 51 Division when, on February 6th or 7th, he was suspended from duty, with

pay, charged criminally as well as under the Police Services Act disciplinary provisions. He

was instructed to report to his Unit Commander on the next day. He did so, and was told by

his Unit Commander to report each day after that. He did this, with the exception of

holidays, for the duration of his suspension, although he was allowed to simply sign in

and/or report to another officer from time to time. P.C. Calder testified that the average

duration of his daily signing-in visits would have been 30-45 minutes, and that he did no

police work during the visits. On a number of occasions, he was required to attend court to

give evidence in cases in which he had been involved. He was ill for eight days in 1992 and

used up eight days of sick leave credits. P.C. Calder was reinstated effective August 2,

1994, but on restricted duty.

During the entire period of his suspension, February, P.C. Calder was paid his

normal salary, but was not awarded any sick credits, nor was he given the two annual

"floater" lieu days to which officers are entitled. In point of fact, his sick bank was credited

with sick leave initially; however, part way through his suspension, this was stopped and the

record adjusted retroactively.

P. C. Calder was acquitted of the Criminal Code charge, but the acquittal was

appealed by the Crown right up to the Supreme Court of Canada which denied the appeal.

The disciplinary charges under the Police Services Act, which had been held in abeyance

pending the disposition of the criminal charge, had not yet been heard as of the last date of

the hearing.

The Association argues that the Board violated the collective agreement in denying

both Constables Camilleri and Calder sick bank and lieu time credits during the periods of

their respective suspensions and asks that I direct that both the sick bank credits and lieu time

credits be restored. The Association also argues that the Board violated the provisions of the

Police Services Act in maintaining a payroll record of the suspensions and asks that I direct

that the record be expunged of any reference to suspension.

Evidence with Respect to Article 12.02

An important issue in this case is the meaning of Article 12.02, and that meaning has

to be reviewed in the context of the bargaining history of this provision. Both parties led

witnesses with somewhat differing views as to this history. We can take as a starting point,

however, the fact that, prior to 1987, Article 12.02 was exactly as it appears on p. 1 supra,

but ended with the phrase "military service", as set out below:

Each member shall receive a gross credit of one and one-half days for each unbroken month of service with the Force, such credit to be cumulative. For the purpose of this clause, service shall not be broken by a member's absence from duty caused by illness, except as provided in clause 12:03 hereof or by injury or accident occurring while on duty or by holidays, vacations or days off or by leave of absence while on military service.

In other words, it did not explicitly include, as a situation in which a member's service

would not be broken (for purposes of sick leave entitlement), the clause found in the current

agreement - namely, "or by disciplinary suspensions provided the member has worked some

portion of said month". Both parties agree that that clause was added in the 1987

negotiations. They disagree, however, on why it was added, what the provision now means,

and how the provision has been applied.

Article 12.02 must also be reviewed in the context of how suspensions have been

treated under the Police Services Act and its predecessor, the Police Act. Under the Police

Services Act and the Police Act, police officers suspected of or charged with offenses under

federal or provincial law could be suspended by the Chief of Police, but with pay. Sections

26 and 27 of the Police Act covered suspensions:

26 (1) Where a constable or other police officer is suspected of or is charged with a contravention of an Act of the Parliament of Canada or of the Legislative Assembly of the Province of Ontario, or is suspected of or charged with an offence against the code, the chief of police may suspend him from duty . . .

26 (3) Where a constable or other police officer is convicted of an offence for which a term of imprisonment is imposed, he may, notwithstanding any appeal, be suspended without pay.

27 No chief of police, constable or other police officer is subject to any penalty under this Part except after a hearing and final disposition of a charge on appeal as provided by this Part. . .

Taken together, these provisions were interpreted to mean that it was only after a proper

hearing and conviction that an officer could be suspended without pay. Sections 71(1) and

71(5) of the new Police Sewices Act made this explicit:

71 (1) If a police officer is suspected of or charged with an offence under a law of Canada or of a province or territory or is suspected of misconduct, the chief of police may suspend him or her from duty with pay.

71 (5) If a police officer is convicted of an offence and sentenced to a term of imprisonment, the chief of police may suspend him or her without pay, even if the conviction or sentence is under appeal.

In other words, it was -and is - only after a hearing and conviction that a uniformed officer

may be suspended without pay. Civilian employees of the force, on the other hand, have no

such protection under the Police Sewices Act and can be suspended without pay under the

collective agreement.

Mr. Len Hazel, Manager of Labour Relations for the Metropolitan Toronto Police

Force, testified for the Board with respect to the evolution of Article 12.02. According to

Mr. Hazel, the practice of the Force (at least from 1983, when he started with the Force)

had been that any officer suspended with or without pay did not receive sick credits, nor did

any civilian suspended without pay. According to Mr. Hazel, who participated in the 1987

bargaining, the Association's concern focused first on the civilian members and was,

specifically, that even if a member were suspended for only one day, service would be

broken (for purposes of Article 12.02), as a result of which he or she would receive no sick

credits at all for that month. In other words, a suspension of one day would, in fact, cost

the member more than that: one day's pay plus one and one half sick leave credits. Thus,

one of the written proposals put forth by the Association for the 1987 negotiations and

submitted as an exhibit in evidence was the following:

SICK PAY

(a) Suspension for disciplinary purposes not to be considered as a broken month for purposes of sick credit calculation.

Although the Association's first concern was its civilian employees, it was clear from the

notations on this document that the Association's proposal was intended to apply to both

civilian and uniformed members.

Mr. Hazel testified that it had not been the intent of the Board that members who were

suspended for only one day should also lose 1.5 days of sick credits, so it agreed in principle

with the Association's proposal. The only point of disagreement between the parties, then,

was the issue of whether or not a member would have to have worked at all during the

month in order that his or her service be considered unbroken for purposes of Article 12.02.

The Association's proposal had no such condition. However, an excerpt from the Board's

bargaining notes for 1987 and entitled "1987 Bargaining Status As At March 19, 1987", was

introduced into evidence and included the following notation with respect to Article 12.02:

MTPA wants no limit but hadn't considered Reg. s. 26 or civilian terminations where arbitrator reinstates with no back pay.

Mr. Hazel testified that he thought the reference to section 26 in this notation was to section

26 (1) - that is, suspension with pay.

In the end, the parties agreed that, if a member worked at least one day in the month,

then service would be deemed not to have been broken and he or she would thus be entitled

to the 1.5 days of sick leave for that month. According to Mr. Hazel, the parties understood

this to apply to both civilian and uniformed members on suspension - with and without pay

- and that, as of the date of the 1987 agreement, that became the practice and has remained

so to this day.

Mr. Edward de Silva testified for the Association. Having joined the Force in 1971,

he worked in a supervisory capacity in the payroll department for many years and, from

1984 to 1991, was seconded full-time to the Police Association, after being elected its Vice

President. Mr. de Silva's time in the payroll department included several years supervising

the section dealing with the sick bank, but he could not remember the exact dates during

which he served in this capacity.

Mr. de Silva testified in chief that, in 1987, the Association's concern focused on the

civilian members because it was only civilian members who could be suspended without pay

(at least, prior to a hearing and conviction). If a civilian were suspended without pay for

even one day, then under the pre-1987 version of Article 12.02, service could be broken and

there would be no entitlement to the 1.5 sick credits for that month. Mr. de Silva testified

that, as far as he could remember, during his time in the Payroll Office dealing with the sick

bank, no uniformed officer was ever denied sick credits while on suspension with pay.

Certainly, no one ever grieved such a denial. In other words, according to Mr. de Silva,

Article 12.02 never applied to uniformed officers on suspension with pay; such officers got

their sick leave credits, along with all their other benefits, both before and after the 1987

change to the article.

In cross examination, Mr. de Silva was asked why, if the Association was concerned

only for the civilians and if, as he had suggested, uniformed officers suspended with pay had

not been denied their sick credits prior to this point, the Association would now propose and

agree to something which made their uniformed members worse off - namely, the condition

that they would now have to work at least one day in the month in order to be entitled to

sick leave. Mr. de Silva's answer was that the Association was trying to protect those

members suspended without pay.

Arguments

The Association's argument was that, in denying Constables Camilleri and Calder sick

credits during their suspensions, the Board had violated the collective agreement by virtue of

the fact that neither officer's service was broken. Both officers received administrative, not

disciplinary suspensions; neither had been found guilty of anything, and so could not have

received disciplinary suspensions. Since both were prevented from working by the Force

itself, it was not now open to the Force to argue that they had not earned their sick credit

entitlements because they had not worked.

Ms Girard argued that the evidence on bargaining history was irrelevant to this

situation because suspensions with pay had never resulted in loss of sick credits and the 1987

amendment to Article 12.02 simply applied to suspensions without pay. She also argued

that, if service were broken, how is it that an officer could actually lose sick leave credits by

using them up while ill, as P.C. Calder had done? Surely, if one is not serving, then one

cannot use up service sick credits.

Ms Girard drew my attention to the following cases: Re Crease et al. v. Board of

Commissioners of Police of the Municipality of Metropolitan Toronto et al. 11 O.R. (2d) 459;

Re Crease et al. v. Board of Commissioners of Police of the Municipality of Metropolitan

Toronto et al. 39 O.R. (2d) 90; Re The Regional Municipality of Durham Police Services

Board and The Durham Regional Police Association (1993) Kilgour; Re Mahood v.

Hamilton-Wentworth Regional Board of Police Commissioners et al. 14 O.R. (2d) 708; Re

Allen and Commissioner of the Ontario Provincial Police 6 0. R. (2d) 671; Re The

Metropolitan Toronto Police Services Board v. The Metropolitan Toronto Police Association

(1995) Brent.

Mr. Smith, for the Board, argued that the fundamental reality in this case was that

both Constables Camilleri and Calder had "broken service" for purposes of sick-credit and

lieu-time entitlement by virtue of their being on suspension and not working. It was clear

from the evidence of Len Hazel and Edward de Silva that, before 1987, any members

suspended with or without pay did not receive sick credits. It was also clear that, as a result

of the 1987 negotiations, the parties agreed on the principle that, if a member on suspension

worked even one day during the month, then service would be considered not to have been

broken. That thus became the practice.

Hence, both Constables Camilleri and Calder had broken service because, according

to the Board argument, for the duration of their suspensions, neither had worked. Both had

reported in daily, but neither had worked, in any conventional police sense of the term. Mr.

Smith argued that it did not matter whether or not the suspensions were disciplinary in

nature; the important thing was that neither officer had worked during their suspensions, and

thus had broken service, disentitling them to sick leave and lieu time credits.

Mr. Smith drew my attention to Re The Metropolitan Toronto Board of

Commissioners of Police v. The Metropolitan Toronto Police Association (Grievances of

Ferrarin and Boeswald) 1983 (Adams).

Award

I start this award with the proposition that what happened to Constables Camilleri and

Calder was not disciplinary suspension; I agree with the Association that these officers

received administrative suspensions. A clear distinction between disciplinary and

administrative suspensions has been drawn - first, in the jurisprudence with respect to the

Police Act and, now, in the Police Services Act itself.

The statutes governing policing in Ontario - the Police Services Act and, before it,

the Police Act - set out two very different kinds of suspension - suspensions with and

without pay. Under Section 71(1), suspension with pay is an option for the Chief of Police

where one of his or her officers is suspected of or charged with an offence under federal or

provincial law or is suspected of misconduct under the Police Services Act. It is only after

an officer has been tried and convicted that the Chief of Police may suspend him or her

without pay, as made clear in both sections 61(l)(d) and 71(5). A suspension under Section

71(1) provides a sensible way of temporarily removing an officer who is under suspicion

from the workplace and duty -a move that under some circumstances may be very

appropriate -but without imposing a financial penalty. Given that it may be necessary to

remove an officer under suspicion from the workplace, the fundamental principles of due

process and presumption of innocence dictate that that removal should be without further

penalty. A suspension under sections 61(l)(d) and 71(5), on the other hand, imposes a

monetary cost to the officer as a penalty for some misconduct which was proven on clear and

convincing evidence at a proper hearing.

It is clear that Constables Camilleri and Calder were suspended with pay under

Section 71(1) of the Police Services Act; neither had been tried or convicted of any offence.

The question becomes, then, how this fact relates to Article 12.02, given that the Board

argues that the last clause covers all suspensions, with and without pay, while the

Association argues that it only applies to members suspended without pay. In other words,

what does the last clause of Article 12.02 really mean?

In the lexicon of labour relations, "discipline" is a synonym for an action taken by

management against an employee for some culpable action - in other words, as a penalty and

as a clear signal that that action must not recur. Logically, then, a "disciplinary suspension"

is a suspension which is meted out as a penalty for some proven misconduct; the dimension

that makes it a penalty is the fact that it is a suspension without pay. Indeed, s. 61 of the

Police Services Act explicitly refers to suspension without pay as a "penalty" open to the

chief of police to impose after proper "Disciplinary Proceedings", the title of Part V of the

Act. While it is true that a suspension with pay also falls under Part V, suspension with pay

is not characterized (as is suspension without pay) as a "penalty". Further, I agree with the

observation of arbitrator Gail Brent in Re The Metropolitan Toronto Police Sewices Board v.

The Metropolitan Toronto Police Association (1995) that

I do not think that the primary purpose of s. 71(1) has changed from that expressed by Mr. Justice Henry [Re Allen and Commissioner of the Ontario Provincial Police (1974), 6 O.R.(2d) 671 (H.C., Div'l C.], even though the section appears in a part of the Act that is headed "Disciplinary Proceedings". Officers suspended under s. 71(1) may never be disciplined . . . .Surely s. 71(1) remains an administrative measure . . . .

The phrase, "disciplinary suspension", was added to the clause in Article 12.02 as a

result of the 1987 negotiations.

. . . or by disciplinary suspension provided the member has worked some portion of said month.

The phrase seems very clear and unambiguous on its face; the term "disciplinary suspension"

has a common, everyday meaning which everyone in the labour relations field readily

understands. Indeed, in the private sector, where suspensions with pay are rarer than they

are in the police world, "suspension" is often assumed to be without pay. In the police

sector, where suspensions without pay are more common because of the protection afforded

by the Police Service Act - where, in other words, there are two common forms of

suspension - the term "disciplinary suspension" seems even clearer. As noted, the Police

Services Act explicitly refers to a suspension without pay as a "penalty" to be meted out after

proper "disciplinary proceedings".

In sum, taken in the context of labour relations generally and police labour relations

in particular, the wording of the last clause of Article 12.02 seems quite clear on its face -

namely, that it refers (now) to suspensions without pay under s. 71 (5) of the Police Services

Act and, before 1990 (the advent of the new Police Sewices Act), to s. 26 (3) of the Police

Act.

This interpretation also squares with much of the evidence of bargaining history -

indeed, it squares with all of the Association's and part of the Board's. Mr. de Silva

testified that the Association originally proposed the amendment because it was concerned

that a member who suffered even a one-day suspension would end up being denied 1.5 days

of sick credits. The evidence from both Mr. de Silva and Mr. Hazel, although in dispute on

certain aspects, did agree and was clear on the fact that this issue originated, in the

Association's mind, with respect to the civilian members. That would make sense, of

course, because if civilians were to be suspended at all, it would very probably be without

pay. On the other hand, it would also have made sense for the Association to try to apply its

proposed clause to its uniformed members as well because they, too, could end up suspended

without pay, albeit only after a proper hearing and conviction.

Mr. de Silva testified that he was unaware of any instances of the Force ever denying

sick credits to an officer on suspension with pay during his several years as supervisor in the

section of the payroll department that handled the sick bank, or subsequently during his eight

years as Vice President of the Police Association. Actual practice in this respect seems to

have been inconsistent, however, and so cannot be used as any guide as to the meaning of

the clause.

It is my conclusion that the bargaining-history evidence does not overcome the clear

language of the last clause of Article 12.02; indeed, much of the bargaining history squares

precisely with it. I find that the 1987 amendment to Article 12.02 deals with suspensions

without pay, and not with suspensions with pay.

This conclusion is not at all inconsistent with the Association's request that its 1987

bargaining proposal be applied to both the civilian and uniform members for the simple

reason that a uniformed officer could indeed find him- or herself suspended without pay; the

only difference is that that would happen only after a hearing and conviction. In that

situation, however, the officer would be in exactly the same situation as the hypothetical

civilian-with-a-one-day-suspension used to justify the proposal in the first place: a suspension

without pay for even one day would, in point of fact, cost the member one day's pay plus

one and one half days' sick credits. In other words, contrary to the Board's assertion in

cross-examination, the Association proposal did not put its uniformed officers further behind

than before (by agreeing to a requirement that they must work at least one day in the month

in order to preserve entitlement to sick bank credits) since it was intended to apply only to

officers suspended without pay. As a result of the 1987 amendment, they were better off;

sick bank entitlement was unaffected by suspension with pay, both before and after the 1987

amendment.

Finally, the conclusion that the last clause of Article 12.02 is not ambiguous and that

it refers only to members on suspension without pay is consistent with the spirit or intent of

the Police Services Act, differentiating, as it does, the treatment to be accorded to officers

suspended with pay while under suspicion or charge and to those suspended without pay only

after a proper hearing and conviction on clear and convincing evidence. This differentiation

simply makes explicit and unambiguous the principles of due process and presumption of

innocence which the Court read into the old Police Act. The Police Services Act stipulates

no conditions for an officer on suspension suspected or charged to be entitled to pay; it

requires only that he or she not have been convicted. It makes no sense, then, that the

collective agreement would treat officers under suspicion or charge (but not convicted) more

harshly than does the Police Services Act. On the other hand, it makes perfect sense that

treatment of suspension by the two codes - the Police Services Act and the Metropolitan

Toronto Police collective agreement - be informed to the same degree by the principle of

due process.

It is important to note, for the record, that I found both Mr. Hazel and Mr. de Silva

to be credible witnesses who told the truth as they understood and recalled the situation. In

my view, the differences between their testimony are explainable on the basis that (1) this

was a somewhat complex question where (2) each side could actually see and thus remember

something different being intended and done, and (3) it all happened almost nine years ago.

My conclusion is that the two parties had different understandings of what was done and,

therefore, of what that particular clause of the collective agreement now means. This does

not change the fact, however, that the clause in question is clear and unambiguous; it refers

to disciplinary suspensions - suspensions without pay - under s. 71(5), not to administrative

suspensions - suspensions with pay - under s. 71(1). It is therefore my conclusion that the

last clause of Article 12.02 does not apply to either Constables Camilleri or Calder since

neither of them suffered a disciplinary suspension.

If Constables Camilleri and Calder do not fall under the last clause of Article 12.02,

then how does the remainder of the provision apply to them? More specifically, can it be

said that their service remained unbroken during their suspensions? If it did, then they are

entitled to sick bank credits; it did not, then they are not entitled.

The essence of the Board's argument is that their service was broken because they did

no work during the duration of their suspensions. I agree that neither officer did any work,

in any sensible or acceptable interpretation of police work. On the other hand, it is clear that

under Article 12.02 the fact of doing no work does not, by itself, disentitle an officer to sick

credits; all of the other exceptions listed in the provision - illness, injury, accident,

vacations, holidays, and leave of absence while on military service -describe situations

where an officer is not working as a police officer for the Force but where he or she retains

entitlement to sick bank credits.

The central question here is the notion of "service", in the police context, and

whether or not the fact of being suspended with pay and doing no police work breaks

service. The answer is that it does not.

Let us start with the collective agreement itself. Article 2:01 (definitions) defines

"service" as follows:

"Service" or "length of service" shall include service with the Police Force of an area Municipality as well as with the Metropolitan Toronto Police Force.

Article 25 (service pay) sets out the following, in part.

Each member hired on or after August 4, 1987 shall be eligible for Long Service Pay in accordance with the following table:

Upon completion of 5 years of service and until the completion of the 10th year of service

$105 per annum . . .

Both of these clauses look at "service" as the total time spent as a police officer; indeed,

Article 2:01 equates "service" with "length of service", not only with the Metropolitan

Toronto Force, but with area forces as well. Clearly, length of service is not equated to

unbroken attendance at work, but to total employment with a particular employer or even, as

in Article 2:01, employment in a particular profession, albeit with different employers.

Section 12:02 makes clear that being away from work due to illness, injury, accident,

vacations, days off, holidays, or leave of absence while on military duty, will not be deemed

by the parties to "break service". There are two principles informing this set of exceptions:

(1) being away from work for reasons beyond one's control, and (2) being away from work

for some legally and mutually acceptable reason. While the second principle does not help

us here (since that is exactly what is in dispute ), the first principle does: an officer

suspended with pay because of a criminal charge is away from work for reasons which may

be beyond his or her control. The logic becomes inescapable if we take as an example an

officer who is falsely accused, is charged, suspended with pay, and ultimately acquitted.

That officer is off work for reasons beyond his or her control and, therefore, just as if he or

she were ill or injured, service should not be considered to be broken. The fact that some

officers will be properly accused and ultimately found guilty does not change how the

principle must operate in this situation unless we are to throw out due process and the

presumption of innocence. In other words, the words of this collective agreement support

the conclusion that service remains unbroken by virtue of an officer being suspended with

pay under s. 7 l ( l ) .

This equating of "service" with total employment and not being broken by absences is

consistent with general arbitral jurisprudence as well. For example, in Re City of Trail and

Int '1 Association of Fire Fighters 10 L.A.C. (3d) 251, arbitrator D. R. Munroe put it this

way:

There is no doubt that "years of continuous service" can comfortably be interpreted as being synonymous with "seniority" - i.e. the uninterrupted maintenance of the employment relationship . . .

Similarly, arbitrator Brown, in Re Air Canada and Canadian Airline Employees' Association

(1976), 13 L.A.C. (2d) 225, stated,

Continuous service simply means continuous employment, which is not affected or severed where employees, exercising their contractual rights under

a collective agreement . . . are absent from work . . . .I disagree with the company's interpretation that "continuous service" means "continuously at work. . .

Thus, the wording of the Metropolitan Toronto Police collective agreement itself is

very strongly suggestive of a broad definition of "service" which is not interrupted by

absences from work over which the member has no control. When looked at in the light of

general arbitral jurisprudence, this conclusion is even more unavoidable.

I anchor this conclusion most firmly, however, in the facts of this case. It is true

that, during the periods of their suspensions, both Constables Camilleri and Calder did no

police work, aside from the occasional appearance in court. On the other hand, they did

report to their Unit Commanders every day, by order of their Unit Commanders and under

Force Rule 4-82. It seems to me that the Board cannot claim that an officer is not "serving"

while simultaneously requiring him or her to obey a superior officer's order and a Force

standing order and report to work every single day.

In the same vein, the sick bank record reveals that P.C. Calder actually used up eight

days of sick leave when he was ill over the period November 25 to December 6, 1992. This

fact raises important questions. First, if P.C. Calder was not considered to be serving, why

would he have to use sick leave? Second, from what was he taking leave? Part of the

answer is, at least, that being on sick leave excused him from the requirement to report in

each morning. In short, P.C. Calder did what any serving officer does when he or she is

sick: he took sick leave. P.C. Camilleri and Calder were not working, but they certainly

were serving. The Force cannot have it both ways: if it considers an officer to be serving

for purposes of using sick leave, then it cannot logically maintain that the same officer in the

same circumstances is ineligible to accumulate sick bank credits.

For all of the foregoing reasons, then, I find that the service of Constables Camilleri

and Calder was unbroken during the time of their respective suspensions and that the Board

therefore violated Article 12.02 of the collective agreement in denying them 1.5 days of sick

credits for each month on suspension. I direct that the Board restore the appropriate sick

bank credits to each officer and I remain seised in the event that the parties are unable to

agree on the appropriate quantum.

Lieu Time

Entitlement to lieu-day vacation credits, under Article 9:01, is also conditional on

uninterrupted service - specifically, "every member who has completed six months service

on June 1st of any year . . . and every member who has completed six months service on

October 1st of any year . . . ." For the same reasons as set forth above, I find that the Board

improperly denied Constables Camilleri and Calder their lieu time credits. I direct that the

Board restore lieu time credits to each officer and remain seised in the event the parties are

unable to agree on the appropriate quantum.

The Issue of the Employment Record

Section 61( (7) of the Police Services Act stipulates that

No reference to the allegations of misconduct or the hearing shall be made in the police officer's employment record, and the matter shall not be taken into account for any purpose relating to his or her employment, unless,

(a) misconduct is proved on clear and convincing evidence; or

(b) the police officer resigns before the matter is finally disposed of.

The Association pointed out that each of the grievers' "Individual Member Sick Bank

Status and SicknessIInjury Record" contained notations regarding the suspensions. Notations

such as the following appeared for each month of the suspension.

RECORD TYPE HOURS REFERENCE PARTICULARS ADJ - DR 12.00 SICK BANK TRANSACTION DATE: 93 SEP 13;

MIA CR WIHELD 930901 RE:SUSPENDED

This was the notation for September of 1993; it indicated that Police Constable Calder was

being denied his sick bank credit for September because he was on suspension.

The Association argued that these notations violated s. 61(7) of the Police Services

Act and asked that I direct that they be deleted from the record. The Board argued that,

given that the Police Services Act allows a chief of police to suspend an officer, it would

make no sense whatsoever for the Act to forbid any record being kept of such a suspension.

In my view, what the Association asks for goes beyond what must have been intended

in the Police Services Act - for several reasons. First, I agree with the Board argument that,

having allowed a Chief of Police to suspend an officer, the Police Services Act would not, in

the same part, forbid the Force from keeping any record of such an occurence; a suspension

is an important decision and there would have to be some record of it. In the instant case,

for example, there will have to be some record made and maintained of the restoration of

sick leave and lieu time credits which this award orders.

Secondly, s. 61(7) forbids references to "allegations of misconduct or the hearing"

and not "suspensions". While it can be argued that, under the Police Services Act, the word

"suspension" implies "allegations of misconduct or the hearing", they are, strictly speaking,

not equivalent and the legislature could very easily have included the word "suspension" in s.

61(7) if that is what had been intended.

For the foregoing reasons, then, I decline to award the Association's request that the

sick-bank records be cleansed of the term "suspension".

I remain seised in the event the parties have any difficulty implementing any part of

this award.

Dated at Kingston, this 16th day of June, 1996.

R. . Jackson