Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 January 26, 2015 ArbitrAtion AwArds convicted (despite pleading not guilty) and received a one-year conditional sentence. As a result, they were sus- pended without pay, as per the collective agreement and Police Services Act. Both appealed the issue and, under the same clause, remained on suspension without pay pending the outcome of the trial. A judge dismissed the charges and the officers petitioned the board for reimbursement of lost wages during the suspension, which the police board refused. The Toronto Police Associa- tion filed a grievance, arguing both officers were entitled to compensation because not only were the criminal charges ap- pealed (thereby rendering the initial suspension obsolete), but a police officer's compensation should not be dependent on du- ties performed, but rather that they hold public office. Since Ing and Cruz main- tained their police officer status, they were entitled to compensa- tion for lost wages. "As a matter of fact and law, there was no conviction, no custodial sentence, and now no statutory or other basis for a sus- pension without pay," the police association argued. "While the suspension with- out pay was once valid, once the factual and legal basis for it dis- appeared, Ing and Cruz had to be put back in the position that they would have been in, absent a conviction and custodial term." Essentially, the officers were entitled to compensation for the period of time when they had been deprived of their income. However, the police board dismissed the association's argu- ment that police hold public of- fice and are therefore entitled to compensation no matter what. A collective agreement need not be negotiated otherwise, and of- ficers are and should be treated as employees. "Neither police officer could provide any services to the board while under suspension and there was no basis to compensate so long as the suspension was validly in effect," the board said. "As unionized employees, they were subject to the same overrid- ing legal regime as anyone else." That the charges were dropped was of no consequence as both officers lost pay for a pe- riod during which they were jus- tifiably suspended under the law. In his decision, arbitrator Wil- liam Kaplan sided with the asso- ciation and upheld the grievance, ordering both officers be remu- nerated. Without a doubt, he said, the board did nothing wrong in suspending the officers ini- tially. However, circumstances changed. It would not have been fair for charged police officers to receive compensation pending trial, but those officers who should never have been charged in the first place should be compensated. "On what basis could it be fair for Ing and Cruz to individu- ally bear the economic burden of innocence?" Kaplan said. "En- titlement to compensation must depend on the ultimate dispo- sitions of the case. If there is no conviction and custodial term at the conclusion of the legal pro- cess, there is no authority to sus- pend without pay." reference: Toronto Police Services Board and the Toronto Police Association. William Kaplan — arbitrator. Michael Hines for the employer, Anne Cumming for the union. Aug. 29, 2014. Fraudulent letter, mortgage scheme lead to dismissal Canada PoST employee Al- eem Mustapha was fired for his alleged participation in mort- gage fraud. The Canadian Union of Postal Workers filed a griev- ance on his behalf, arguing for his reinstatement. According to the union, Mustapha was the vic- tim of a scam. Primrag Chansingh and Frank Wong were charged with mort- gage fraud involving more than 100 mortgages, one of which was on Mustapha's home. The income verification letter sub- mitted in order to obtain the fraudulent mortgage was forged on Canada Post letterhead. The document wrongfully described Mustapha's position and income with Canada Post and featured the forged signature of Musta- pha's supervisor. Police informed Canada Post of the forged letter and the em- ployer investigated Mustapha's possible involvement in the scheme. Before his interview with the employer regarding the forged letter, Mustapha's wife was ar- rested in connection with the mortgage fraud. Mustapha did not disclose this information to the employer, however, and when he required time off in re- lation to the arrest he told Cana- da Post his wife had been hospi- talized. Following the investigation Mustapha was discharged for the unauthorized use of Canada Post letterhead and for the fraudulent misrepresentation of both em- ployment and income. Throughout the investiga- tion Mutapha claimed he had no knowledge of the forged letter. While police believed Mustapha and his wife were involved in the mortgage scheme — the charges filed against his wife were even- tually dropped and Mustapha himself was never charged — the union argued investigators were unable to find any evidence link- ing Mustapha to the letter. It was understandable that Mustapha lied about his wife's arrest, the union said, as he was embarrassed and confused by the situation. Mustapha had no record of discipline in his 15 years of employment, something the union said should be consid- ered. During arbitration, Wong — under the protection of the Charter and the Canada Evi- dence Act — testified it was Chansingh who forged the in- come verification letter, not Mu- stapha. Canada Post, however, submitted Mustapha's involve- ment in a fraudulent mortgage scheme — one that involved Canada Post and a Canada Post supervisor through a fraudulent letter — and dishonesty during the employer's investigation was a breach of trust. Mustapha lied about his wife's arrest, his knowledge of a mort- gage scheme and his knowledge of the forged letter, the employer argued, which was an attempt to protect himself and the per- petrators of the fraud. Further- more, Mustapha benefited great- ly from the fraudulent mortgage. Arbitrator O.B. Shime con- sidered the grounds for dis- charge. The employer argued Mustapha's fraudulent con- duct in obtaining the letter and his dishonest conduct during the investigation process were grounds for dismissal. However, the grievor's conduct during the investigation was never stated in the termination letter as a ground for discharge. Mustapha's discharge, then, must be examined based on the grounds of his alleged misuse of Canada Post letterhead and for the fraudulent misrepresenta- tion of both employment and income. "In this case, there is no direct evidence linking the grievor to the forged documents," Shime said. "Evidence of the linkage is circumstantial… I am not con- vinced the grievor is the person who fraudulently prepared and submitted the letter." The grievance was allowed and, as a result, Mustapha was reinstated to his position with seniority and with compensa- tion in an amount to be agreed. Failing agreement, Shime will re- main seized of the issue. reference: Canada Post Corporation and the Canadian Union of Postal Workers. O.B. Shime — arbitrator. Chris Meaney for the employer, Adam Beatty for the union. Jan. 5, 2015. < from pg. 1

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