Canadian Employment Law Today

August 29, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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6 | August 29, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends checks and individuals had to apply to the province for a peace officer appointment be- fore being employed with the city. Before becoming a peace officer, Messen- ger was a police officer in the United King- dom for 23 years. He came to Canada in 2007 and one year later, began his peace officer position in Calgary. When he started his em- ployment, he was trained on the policies and was aware of the standard of conduct and the importance of integrity. In late 2015, Messenger's wife developed a serious medical condition and his son was in a serious accident. Messenger helped take care of his son's three young children so his daughter-in-law could spend more time with her husband, but his wife couldn't pro- vide much help due to her illness. By February 2016, Messenger's son was re- covering, but Messenger learned his mother back in the United Kingdom had fallen seriously ill. His wife's mother had open-heart surgery as well, and the family was under a lot of stress. Unfortunate email incident Messenger was friends with two other Calgary peace officers — referred to as AB and CD in the arbitration — and they often joked around and teased each other. On Feb. 14, 2016, Messenger and his two co-workers had been making sexual jokes with each oth- er via text messaging when he and AB had to visit a residence with a difficult dog owner. Before they left, Messenger climbed into the truck to review the file while AB went to the washroom. He saw on the truck's computer screen that AB and CD had been messaging each other, so he decided to play a joke by sending CD an email from AB's computer. Messenger composed an email making a sexual joke and a homosexual reference, but when he entered the recipient, the auto-fill feature entered the name of a female super- visor, to whom the email went instead of CD. When AB returned to the truck, Messenger said nothing about the email and was un- aware it had gone to the wrong person. When the supervisor read the email, she forwarded it to the inspector in charge of Messenger's office. e inspector sent a stern message to AB and Messenger order- ing him to report to his office to discuss the matter on Feb. 23. AB agreed to attend but said he was "totally blindsided by it." Two days before the meeting with the inspector, Messenger was reviewing files on aggressive animal reports and brought them back to the office around noon. An- other peace officer was in the office common area and mentioned the new shift schedule would be released soon — Messenger had been worried about it because he couldn't deal with a schedule change due to his wife's medical appointments and taking care of his grandchildren. Normally, the files he had reviewed would be placed on the desk of the sergeant in charge of them, but the sergeant had recent- ly been appointed acting sergeant-in-charge and had been moved to an office. It was the weekend, so the sergeant wasn't there. Mes- senger went down the hall towards the ser- geant's office and noticed the door was ajar, though it was supposed to be locked. Mes- senger went inside to place the files on the sergeant's desk and noticed a document that looked like the proposed schedule. Messenger looked at the document and, since he wanted as much advance notice as possible of any schedule changes, he brought the document back to the common area and told the other peace officer he was going to make a copy of it. e other peace officer said that wasn't a good idea, but Messenger took a photograph of it and returned it to the ser- geant's office. Security concerns raised e next day, Messenger emailed the in- spector and requested he remain on the same shift rotation because of his wife's appointments and his childcare demands. He also expressed his concerns to the act- ing sergeant and told her the other officer who had been in the common area on the weekend had told him about the proposed schedule. When the acting sergeant asked the other officer how she had known about the proposed schedule, the officer explained that Messenger had gone into her office and copied the schedule. It also came to light that Messenger had shared the photograph of the draft schedule with a few co-workers. At the meeting with the inspector, AB explained he didn't send the email and Mes- senger admitted he had accidentally sent it to the supervisor. A formal investigation was launched and Messenger said it meant to be "light-hearted banter between colleagues." He apologized and said he was normally se- rious and professional on the job. e city also investigated the incident concerning the proposed schedule and sus- pended Messenger with pay pending its completion. Messenger acknowledged taking a photograph of the proposed schedule and he was aware that it was common courtesy to not enter the sergeant's office when she was absent. He also acknowledged that there had been an envelope on the office door and trays in the common area for paperwork. e city's corporate security team also interviewed Messenger, and he told them he didn't remember if he photographed the schedule while still in the office or what the other officer had said to him. However, he later testified he recalled both clearly. e city determined that both the email incident and the schedule incident were se- rious in nature. On April 7, Messenger's em- ployment was terminated for violating the city's use of technology policy with the email and the respectful workplace policy with the schedule incident. Both incidents ruined the "trust relationship," the city said. e union grieved the termination, argu- ing the email wasn't serious enough to jus- tify serious discipline, Messenger went into the office for a work-related reason, he only looked at the proposed schedule when he noticed it, he had a clean disciplinary record, and his difficult personal circumstances should be taken into account. e arbitrator found that while Messen- ger acknowledged sending the email was "a stupid thing to do" and he often joked with his co-workers, the email itself was offensive, contrary to the city's technology policy, and reckless by sending it to the wrong person. However, it was an accident and Messen- ger apologized for it. On its own, the email would warrant a "suspension of moderate length," the arbitrator said. However, the arbitrator also found Mes- senger's claims regarding the proposed schedule weren't credible. It was clear he knew he shouldn't have entered the office and there were other places to put the ag- gression files, and his memory of when he took the photograph changed. e arbitrator found it was more likely Messenger entered the office because he was concerned about the schedule change and wanted to look for it. is was a serious act of misconduct that called into question Messenger's integrity — an essential and fundamental requirement for a peace officer — that was compounded by his attempts to divert responsibility and the fact he shared the photograph with oth- ers, said the arbitrator. e arbitrator took into account Mes- senger's eight years of discipline-free service and the fact the city didn't apply progressive discipline by giving him a chance to improve his conduct, as well as Messenger's state of mind over how the potential schedule changes could impact his already-stressful personal life. Given these factors, the arbi- trator determined the trust relationship had not been irreparably damaged and termina- tion was an excessive response. e arbitrator determined a one-year sus- pension was sufficient to demonstrate the seriousness of Messenger's misconduct and overturned the termination. However, given the "complexity of the peace officer appoint- ment process," he reserved judgment on re- instatement and damages. For more information see: • Calgary (City) and CUPE, Local 38 (Mes- senger), Re, 2018 CarswellAlta 1457 (Alta. Arb.). Officer entered office, took photo of document « from ARBITRATOR on page 1

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