‘Concluded’ not same definition as ‘cancelled’: Arbitrator
Five police officers who attended court and were advised their services were no longer required each filed claims for short-notice cancellation pay — but all were refused.
Const. Rob Bonthron, Det. Const. Jesse Lepere, Det. Const. Tom Armstrong, Const. Brandon Tyrvainen and Sgt. Justin Dubuc collectively grieved, along with the union, the Thunder Bay Police Association (TBPA), after the officers did not receive payments when they were given short notice that their Thunder Bay, Ont., court appearances were cancelled.
“If a member’s court attendance is cancelled less than 24 hours before scheduled, the member shall receive a payment of four hours’ straight time pay,” according to article 6.02 of the collective agreement.
Bonthron and Lepere attended the court on Feb. 13 but were advised by the Crown attorney that they would not be required for that day, as deliberations were ongoing and the trial was yet ready to proceed.
Both officers were advised by the attorney that they might be needed the following day and she would call them if that was the case.
The following day, both officers attended court and were again told that their presences were not required for that day, but they should be prepared to testify the rest of the week.
After the pair left the courthouse, they were each phoned by the Crown attorney who said Bonthron and Lepere were no longer needed for the case, as the accused pleaded guilty. Because the following days’ appearance (Feb. 15) was less than 24 hours away, Bonthron and Lepere each filed for short-notice cancellation pay but both were denied.
The three other officers all had similar experiences: Armstrong attended court on July 13, and was told by the Crown he would not be required the following day; Tyrvainen went on Sept. 11 and was told he was no longer needed; Dubuc testified on May 2, and he was told the rest of his week was cancelled.
The employer, the Thunder Bay Police Services Board, argued that in each of the cases, the officers were no longer required by the Crown, so their obligations were “concluded” and, therefore, the cancellation policy did not apply.
The TBPA countered and said the collective agreement called for cancellation pay, which is not the same as concluded, and the plain language of the agreement must be considered in this case.
Arbitrator Kelly Waddingham agreed and ordered all outstanding claims to be paid in full.
“I reject the employer’s broader ‘contextual’ argument for a different understanding of the word cancelled as it is used in article 6.02(a). The fact that an officer completes their testimony and thus fulfils the purpose of the subpoena does not mean that their court attendance is not — or cannot — be cancelled within the meaning of article 6.02(a). Whether an officer testifies or does not testify, the determination of whether they are (or continue to be) on notice that they are required to be in court in accordance with the subpoena is the prerogative of the Crown. Regardless of the reason, the officer’s court attendance is only effectively ‘cancelled’ when they are informed by the Crown that they are no longer required to be in court on the day (or on days) specified in the subpoena,” said Waddingham.
The arbitrator rejected the employer’s argument about the exact reasons for the officers being told to go home.
“Nothing in the wording of the provision suggests that there is any relevance to the reason why the officer is no longer required to attend court. Nor does the reason affect the extent of disruption or inconvenience potentially caused by the short notice. Therefore, there is no reason to accept that the term ‘cancelled’ should be read as being conditional upon the reason for the cancellation,” said Waddingham.
“Consequently, I find that the collective agreement dictates that officers’ whose court attendance is cancelled with less than 24 hours notice — regardless of the reason for the cancellation — are to be paid four hours straight time pay in accordance with article 6.02(a).”
Reference: Thunder Bay Police Services Board and Thunder Bay Police Association. Kelly Waddingham — arbitrator. Holly Walbourne for the employer. Gary Hopkinson for the employee. Oct. 26, 2018.
Const. Rob Bonthron, Det. Const. Jesse Lepere, Det. Const. Tom Armstrong, Const. Brandon Tyrvainen and Sgt. Justin Dubuc collectively grieved, along with the union, the Thunder Bay Police Association (TBPA), after the officers did not receive payments when they were given short notice that their Thunder Bay, Ont., court appearances were cancelled.
“If a member’s court attendance is cancelled less than 24 hours before scheduled, the member shall receive a payment of four hours’ straight time pay,” according to article 6.02 of the collective agreement.
Bonthron and Lepere attended the court on Feb. 13 but were advised by the Crown attorney that they would not be required for that day, as deliberations were ongoing and the trial was yet ready to proceed.
Both officers were advised by the attorney that they might be needed the following day and she would call them if that was the case.
The following day, both officers attended court and were again told that their presences were not required for that day, but they should be prepared to testify the rest of the week.
After the pair left the courthouse, they were each phoned by the Crown attorney who said Bonthron and Lepere were no longer needed for the case, as the accused pleaded guilty. Because the following days’ appearance (Feb. 15) was less than 24 hours away, Bonthron and Lepere each filed for short-notice cancellation pay but both were denied.
The three other officers all had similar experiences: Armstrong attended court on July 13, and was told by the Crown he would not be required the following day; Tyrvainen went on Sept. 11 and was told he was no longer needed; Dubuc testified on May 2, and he was told the rest of his week was cancelled.
The employer, the Thunder Bay Police Services Board, argued that in each of the cases, the officers were no longer required by the Crown, so their obligations were “concluded” and, therefore, the cancellation policy did not apply.
The TBPA countered and said the collective agreement called for cancellation pay, which is not the same as concluded, and the plain language of the agreement must be considered in this case.
Arbitrator Kelly Waddingham agreed and ordered all outstanding claims to be paid in full.
“I reject the employer’s broader ‘contextual’ argument for a different understanding of the word cancelled as it is used in article 6.02(a). The fact that an officer completes their testimony and thus fulfils the purpose of the subpoena does not mean that their court attendance is not — or cannot — be cancelled within the meaning of article 6.02(a). Whether an officer testifies or does not testify, the determination of whether they are (or continue to be) on notice that they are required to be in court in accordance with the subpoena is the prerogative of the Crown. Regardless of the reason, the officer’s court attendance is only effectively ‘cancelled’ when they are informed by the Crown that they are no longer required to be in court on the day (or on days) specified in the subpoena,” said Waddingham.
The arbitrator rejected the employer’s argument about the exact reasons for the officers being told to go home.
“Nothing in the wording of the provision suggests that there is any relevance to the reason why the officer is no longer required to attend court. Nor does the reason affect the extent of disruption or inconvenience potentially caused by the short notice. Therefore, there is no reason to accept that the term ‘cancelled’ should be read as being conditional upon the reason for the cancellation,” said Waddingham.
“Consequently, I find that the collective agreement dictates that officers’ whose court attendance is cancelled with less than 24 hours notice — regardless of the reason for the cancellation — are to be paid four hours straight time pay in accordance with article 6.02(a).”
Reference: Thunder Bay Police Services Board and Thunder Bay Police Association. Kelly Waddingham — arbitrator. Holly Walbourne for the employer. Gary Hopkinson for the employee. Oct. 26, 2018.
