Labour Update – February, 2024
Below is a summary of recent Thunder Bay and Sudbury decisions and the recent collective bargaining outcomes in Barrie, London and Halton.
OCPC – Harrison v. Thunder Bay Police Service
The Ontario Civilian Police Commission recently released its decision in Harrison v. Thunder Bay Police Service. Members may recall that Staff Sergeant Shawn Harrison had been convicted by a hearing officer for Neglect of Duty relating to an investigation into the sudden death of an Indigenous man in 2015. Of note was the hearing officer’s further finding that Harrison was also guilty of Discreditable Conduct for failing to recognize the role that his own unconscious bias played in the failure to investigate the death properly.
Harrison appealed the hearing officer’s decision in relation to both the neglect of duty and the discreditable conduct. With regard to the discreditable conduct, he argued that it would not be fair to sanction him for something that was unconscious and that he, by definition, could not recognize. The panel at OCPC dismissed the appeal and found that, while the hearing officer had explicitly said that Harison was culpable for his failure to recognize his own unconscious bias, it would have been more accurate to cast the issue as Harrison’s failure to account for the role that bias could have been playing generally in his decisions. The hearing officer had found that there was no direct evidence that Harrison held any negative viewpoints about Indigenous people. Still, the OCPC relied on the hearing officer’s findings that the influence of bias was obvious, given the deficiencies in the investigation.
In my view, the ruling is extremely troublesome and not particularly well-reasoned. Nevertheless, members must be aware that where there is evidence to support neglect of duty in regard to a matter involving a member of an equity-seeking group, the OIPRD, professional standards branch, or Chief may seek to pursue a further count of discreditable conduct in order to capture the member’s failure to account for the presence of bias. The text of the decision can be found here.
Grievance Arbritation – Sudbury Police Association v. Greater Sudbury Police Services Board
The Sudbury Police Association filed a grievance alleging that the employer had breached the human rights of a member. According to the association, the employer failed to account for the fact that the member was known to have a disability when the Board chose to terminate the member’s employment. The member was hired as a police constable, and the termination came at the conclusion of the member’s statutory probation. The employer argued that the arbitrator had no jurisdiction to hear the grievance because the Board’s exercise of its right to terminate during the probationary period could not, under the PSA, be subject to an arbitral award. The Police Services Act excludes several aspects of the working relationship from the collective bargaining framework, including the probationary period to which constables are subject. The association argued that the arbitrator did, in fact, have jurisdiction because the Human Rights Code was alleged to have been breached, and breaches of the Human Rights Code fall well within the ambit of collective bargaining and can, therefore, be enforced by a police association.
Ultimately, the arbitrator preferred the interpretation put forward by the employer and determined that the grievance could not proceed. The arbitrator made it clear that if there was, in fact, a violation of human rights, the member’s remedy was to the Human Rights Tribunal of Ontario.
Associations should know the Act’s limits regarding various personnel matters involving sworn members. Even in cases where broader rights are at issue, the association may not have standing to assert those rights when the infringement is in the context of a working condition that has been explicitly removed from the collective bargaining framework by the relevant statute.
London, Barrie and Halton
Since our most recent update, contracts have been settled in Halton, Barrie, and London. A salary breakdown is visible below, and members should review the linked Winter Membership Meeting presentation when further details are provided regarding non-monetary gains. Of particular interest is the significant advancement in retention pay for civilian members. Civilian members of the Barrie Police Association are now eligible for retention (3-6-9) pay akin to sworn officers. This is a significant advancement, and members should consider whether they wish to include similar proposals in their next bargaining brief.