... 91-039

In the matter of an arbitrationbetween

WATERLOO REGIONAL POLICESERVICES BOARD

TheBoard

and

WATERLOO REGIONALPOLICE ASSOCIATION

The Association

(AssociationGrievance:EI-Ash)

Prof. Paul Craven

Sole Arbitrator

A hearing washeld at Waterloo, Ontario, on November19,1991.

For the Board:

For the Association:

Anthea E.H. Millikin,Counsel

Ian Roland, Counsel

.

AWARD

The Police Services Board raised two preliminary objections at the outset of the hearing.

First, in the Board's submission, the grievance contests the grant of an unpaid leave of absence.There is no provision in the collective agreement governing the grant of such leaves, which thereforefalls within the exclusive and unfettered discretion of the Board. For this reason, the grievance isinarbitrable. The Board's second objection is to the form of the grievance, and in particular to a claimfor individual monetary relief coming forward as an Association grievance.

On the first objection, the characterization of the Board's action as an unpaid leave of absencegoes to the heart of the dispute between the parties. I therefore reserved judgment on the objection.Since the second objection was confined to my remedial authority and did not bear on my jurisdictionto hear and determine the merits of the grievance itself, I reserved judgment and invited the parties tomake their submissions about my remedial powers when they argued the merits. I therefore proceededto hear the merits of the grievance.

The grievance takes the form of a letter from the president of the Association sent first to theChief of Police and later to the chairman of the Board:

Re:Grievance-Cadet MounirEI-Ashand his unpaid attendance atthe Ontario PoliceCollege

It has been drawn to my attention that between the dates of Monday, October 15 andWednesday, December 19, 1990, there was a violationofthe UniformCollectiveAgreementinthat Cadet MounirEI-Ashwas deprived ofthe salarytowhichhe was entitled inaccordancewith Appendix "A" of the UniformCollectiveAgreement. The facts as understood are asfollows:

. Cadet EI-Ashattended the Level IIConstable Training Program at the Ontario PoliceCollege between Monday April30 and Thursday July 5. 1990.

. During his attendance at the College. EI-Ashreceived fullsalary and benefits in accor-dance withAppendix "A" of the UniformCollectiveAgreement.

.Subsequent to his attendance at the College, EI-Ashlearned that he had failedthe course.. EI-Ashwas given an opportunity to re-writethe exam forthe failed subject matter.

Followingthe re-write, EI-Ashwas summoned to the Personnel Branch where he learnedthat he had been unsuccessful again.

Under duress by threat of dismissal. Cadet EI-Ashmade an unprecedented deal with theemployer which breached the terms of the workingAgreement. The deal offered CadetEI-Asha second opportunity to attend the LevelIIConstable Training Program inexchangefor his written authorization to withholdsalary during such attendance.

Cadet EI-Ashdid attend the LevelIIConstable TrainingProgram between Monday October15 and Wednesday December 19, 1990 but did not receive salary during this period of time.

Upon inquiry. I have been advised that EI-Ashattended the College while on an unpaid"leave of absence".

WATERLOO REGIONAL POLICE =2= POLICEASSOCIATION

Based on the facts as stated above, Ihereby submit the following for your consideration inaccordance with the Uniform CollectiveAgreement,Appendix "B" Complaint and GrievanceProcedure.

1. A "leave of absence" by definition does not address pay, as you know a "leave ofabsence" may be granted with or without pay. The Webster's New Coilegiate Dictionarydefines "leave of absence" as "permission to be absentfrom duty or employment". Itwouldappear then, that the issue is simply one of determining if the employee was performingwork related duties. Attendance and successful completion of the Ontario Police CollegeRecruit Training has been treated as part of the regular duties of employees of police forcesin Ontario, and has been so treated specifically by our force, as acknowledged by the partiesin Article 5.05 of the Uniform Collective Agreement. Indeed, the matter is now addressedspecifically in the New Police Services Act which makes it clear that it is the duty of a policeofficer to complete "the prescribed training" (see s.42(1)(0 and s.44).

2. The Association believes that the only remaining question is, whether or not the Cadetwas able to waive payment of his salary, even though on duty, while in attendance at theOntario Police College. Notwithstanding the fact that this authorization or agreement wasobtained while the Cadet was clearly acting under duress, he had no authority to sanctiona breach of the salary provisions of our Uniform Collective Agreement. The WaterlooRegional Police Services Board, by virtue of the Uniform Collective Agreement, Article 1,has recognized the Waterloo Regional Police Association as the "sole collective bargainingagent" thereby requiring any agreement that detracts from or varies the Collective Agree-ment to be between the Association and the Employer, not between a member of theAssociation and the Employer.

I hereby submit that the Waterloo Regional Police Service has breached Appendix "A"(Salary provisions) and Article 1 (Recognition and Scope provisions) of the Uniform Col-lective Agreement. The Association insists that Constable Mounir EI-Ash be reimbursedimmediately for salary and/or benefits which were deprived of him while he served as a FirstClass Cadet during the period of Monday October 15 to Wednesday December 19, 1990inclusive.

The collective agreement articles referred to provide:

ARTICLE I - RECOGNITION AND SCOPE

1.01 The Board recognizes the Association as the sole collective bargaining agent for allMembers of the Police Force for the Regional Municipality ofWaterloo, save and except theChief of Police, the Deputy Chiefs of Police and Members represented by the Senior Officers'Association.. . .

1.03 This Agreement does not apply to Civilian Employees in respect of which there willbe one or more separate agreements, however, Cadets are included in this Agreement forreasons of convenience.

ARTICLE 5 - PROMOTIONS. . .

5.05 A recruit shall be or remain a Cadet until he or she has successfully completed thebasic Recruit Training Level IIcourse at Aylmer whereupon he or she will be sworn in as aFourth Class Constable....

Appendix "A" to the collectiveagreement sets out the salaryschedule. The salary line for FirstClass Cadets is annotated, "Includes recruits until completionof BasicRecruit Training Level ITatAylmer."

WATERLOO REGIONALPOLICE =3= POLICE ASSOCIATION

The Chief of Policereplied to the grievanceby letter:

Re:Grievance-Cadet MounirEIAsh and hisunpaid attendance at the Ontario PoliceCollege

The facts as submitted are substantially correct withsome clarification..Correspondencewith the Ontario Police College indicated that a third re-writewould not be possible. Theonly way this officer could complete his LevelIIConstable Trainingwas by attending theOntario Police College for a second time.

The grievance indicates that the officer, under duress by threat of dismissal, made anunprecedented deal withthe employer. That being a second opportunityto attend the LevelIIConstable Training Program.

The agreement was not made under duress or threat of dismissal. This can be calledwhatever you like, however, this officerwould have had to be dismissed for the followingreason.

The Police Services Act 44(1)(3) states:

Aboard may terminate a police officersemployment at any time during his or herprobationary period but, before doing so shall givethe police officerreasonableinformationwith respect to the reasons for the termination.

The reasons for this dismissal would have been found inPoliceServices Act42(1)(1) whichreads:

The duties of a police officerinclude, completing the prescribed training.

Byvirtue of failingthe Ontario Police College, Cadet EIAsh could not perform the duties ofa police officer. As a result of this the only decision we have ever made in the past hasbeen by dismissing the employee. Recruits are not sworn in as police officers until theysuccessfully complete their prescribed training.

In this situation affirmativeaction was taken. He is a visible minority,new to this country.He has had obstacles to overcome, resistance fromhis parents in becoming a police officerplus his seeing a girlfrom this country. His parents object as they had arranged a marriagefor him.

Cadet EI Ash's marks were good, above class average withthis one exception. Hissupervisors were supportive of himand indicated he had the potential of becoming a goodpolice officer. The decision was made to take a chance on this officer, that being not todismiss him but by givinghim another chance to succeed at the Ontario Police College.

This was our gamble in offeringhim this alternative and opportunity to attend. It was feltthat ifwe gave himthis opportunitv he should contribute by requesting a leave of absence.Cadet EIAsh had every opportunity at this time to approach the Association for advice.

There have been many instances in the past where a leave of absence has been grantedto a member of the Association. To the best of my knowledge the Association has neverintervened before.

I am advised that this officer has never communicated the complaint to the Association.The Association is acting for him against his wishes.

He is very appreciative of what had been done for him. He realized he could have beendismissed and we gave him a second chance. In view of the foregoing this grievance isdenied.

At the arbitration hearing, counsel for the Association stipulated that it was not pursuing theallegation that EI Ash had signed the request under duress. El Ash had not been asked to, and did not,attend the hearing. .

--- -------

WATERLOO REGIONAL POUCE =4= POUCE ASSOCIATION

Duress aside, there is no dispute about the material facts. Mounir EI Ash was hired as a policecadet commencingApril 8, 1990and attended the Ontario Police College for his Level II constabletraining programme from April 30 to July 5, 1990. He wassuccessfulin all but one of his courses. Inthe "Federal Stats" course he receiveda markof 70whichwasnot a passinggrade. The Police ServicesBoard applied on hisbehalf to the PoliceCollegefor permissionto rewritethe examination,whichwasgranted. Cadet El Ash received the samemarkon the rewrittenexaminationas in hisoriginalattempt.This was the first time that a Waterloo RegionalPolicecadet had faileda rewritten examination.

The Boardconsideredthat there werespecialcircumstancesinthiscase,amongthem that EIAsh'smarks were above the classaverage in other subjects;that hispracticalabilitieswere well-regardedbyhissuperiors; that he had experiencedsomedifficultpersonalcircumstancesthat mighthavehamperedhis performance on the examinations;and that as a memberof a visibleminorityhe should be treatedin the spirit of s.48of the PoliceServicesAct, S.O. 1990,c.10,whichcallsfor the eliminationof systemicbarriers to the recruitment and promotion of personswhoare membersof prescribed groups and theimplementation of positivemeasures for the recruitmentandpromotionof those persons. The Boardaccordinglyrequested the Ontario PoliceCollegeto permitEIAshtowritethe FederalStatsexaminationa third time. The Collegedeclined this request for reasonsof policyset out in its letter of September19,1990but pointed out that, "you have the option of enrollingCadet MounirEl Ash in another LevelII course."

On September 21,cadet EIAsh executedaspecialrequest formprepared for hissignature byStaffSgt. Stephen Calma, who is in charge of human resources and staff training. The form stated, "Irespectfully request an unpaid Leave of Absence from, and includingOctober 15th, 1990,until thesuccessful mark determination from the Ontario Police College,is confirmed for class #14, Level IIConstable TrainingProgram,whichisbeingheld fromOctober 15,1990to December 19,1990." Calmatestified that he believed itwouldenhance EIAsh'sbargainingpositionwiththe Board ifhe undertookto repeat the course at a cost to himself. Deputy ChiefKen Miller,who isin charge of administration,testified that he understood the Board to havedecidedthat EIAshcouldreattend the course at hisown

expense before he wasasked to signthe request form. In anyevent, no-one suggestsit was the cadet'sown idea to applyfor a leave of absencewithout pay in order to repeat the Level II training.

In the result, El Ashwasplacedinthe Ontario PoliceCollegeclasscommencingin October, whichhe attended alongwitha group of cadetswhowere takingthe coursefor the first time. The other cadetswere paid their regular salary along with allowancesand per diem payments for the duration of thecourse. During hisattendance, EI Ash receivedno salary,allowances,or per diem payments althoughhis benefits, with the exception of pension contributions,continued to be paid by the Board. He suc-cessfullycompleted the training programmeandwassubsequentlyswornin asa Fourth ClassConstable.

For the Association, it is argued that the Board engaged in private negotiations with EI Ashrespecting a term or condition of employment,in violationof article 1 of the collectiveagreement. Itis further argued that EI Ash was engaged in the work of the bargainingunit while attending Policecollege from October 15 to December 19,1990,and shouldtherefore havebeen paid accordingto thesalary schedule set out in Appendix "A" of the collectiveagreement. It is argued for the Board thatthe granting of leavesof absence iswithin the sole discretionof the employerand that EI Ash wasonan unpaid leave of absence between October 15and December 19,1990.

un --- - n ---------- -- -- - - -- n-

WATERLOO REGIONALPOLICE =5= POLICEASSOCIATION

Leave of Absence

The firstquestion to be determined iswhether El Ashwason a leaveof absencewhenhe attended theOntario Police Collegefor the second timebetween October 15and December 19,1990.

The collectiveagreement makes no expressprovisionfor leavesof absenceother than maternityand compassionate leaves. There is a management'srightsprovisionin article 2 of the agreement:

ARTICLE 2 -MANAGEMENTRIGHTS

2.01 TheAssociationand its Membersrecognizeand acknowledgethat subject tothe provisions of the Police Act and Regulations thereto, it is the exclusive function of theBoard to:

(a) Maintainorder, discipline and efficiency;

(b) Hire,discharge, direct, classify, transfer, promote, demote and suspend or otherwisediscipline any Police Officerprovided that a claim for discriminatory promotion, demotionor transfer or a claimthat an employeehas been discharged or disciplined without rea-sonablecause,maybe the subjectof a grievanceanddealtwith as hereinafterprovided.

While this provision does not expressly reserve the power to grant leaves of absence to management,the Association concedes that the Board is entitled to accept or refuse requests for leaves of absence,provided that in doing so it does not infringe any express provision of the collective agreement.

The Association argues that EI Ash was not on a leave of absence because he was not "absent"during the period at issue. In the alternative, the Association argues that the leave was improper becauseit infringed the payment provisions of the collective agreement. Both these submissions turn on theproposition that El Ash was engaged in his work as a police cadet during the period of the purportedleave, and was therefore entitled to payment under the collective agreement.

There is no dispute between the parties that in the normal course of events, police cadets areconsidered to be engaged in the performance of their duties when they attend the Level II course atPolice College. The Board relies upon ChiefBasse'sresponseto the grievance,inwhichhe quotes thePoliceServicesAct to the effect that the duties of a policeofficer include completing the prescribedtraining. It isnot necessaryfor the purposesof thisdeterminationto decidewhether a cadet isa "policeofficer"withallthe powersset out ins.42of thatAct,forinanyevents.51(1)providesfor the appointmentof persons "as policecadets to undergo training." In a nutshell,the cadet's duty is to undergo trainingand, as art. 5.05of the collectiveagreement makesplain,the LevelII course at the Police College isanintegral and required part of that training. It wasnot argued,nor do I think it could be maintained inthe face of the evidence, that in the normal course of events cadets attending the Level II course areon paid leavesof absence from their jobs. Moreover,the evidencedoes not suggestthat any individualwho cares to mayenrol in the Level II course. Placesare allocated to the police force by the College,and it is for management to decidewho mayattend. In order for cadet El Ash to attend the College asecond time, he had to be assigneda place bythe Board. As the Deputy Director of the Collegewroteto Chief Basse, "you have the option of enrollingCadet Mounir EI-Ashin another Level II course"[emphasissupplied]. This is not a case of an individualseeking a leave of absence or an educationalleavewith aviewto independentlysecuringaqualification.For EIAshto attend PoliceCollegerequiredthe Board's initiative.

_mm -- --- --- - -- -- -------------

WATERLOO REGIONAL POLICE =6= POLICE ASSOCIATION

The Association argues that EI Ash could not have attended Police College on a leave of absence,because he was not "absent" from work while participating in the Level II course. In support of thissubmission, the Association cites the awards of boards of arbitration in United Aircraft Workers,Local

112, and De Havilland Aircraft of Canada Ltd. (1970) 21 LAC 200 (Johnston) and Swift Canadian Co.Ltd. and Canadian Food & Allied Workers, Local P-280 (1976) 13 LAC (2d) 14 (Pugh). In the former

case, the question before the board was whether an employee was"absent" for the purposes of holidaypay entitlement under that collective agreement when he was on vacation. The board turned to thecommon or dictionary meaning of the word (at pg. 204):

The word absent is used inthe agreement withoutany qualificationsuch as "unauthorized"or "without permission". The Oxford Dictionary defines absent as "not present; not existing"and absence as "being away". The plain meaning of the word must be accepted. Sincethe employee was not "at work" but rather was "not present" at work or was "away" fromwork he is absent withinthe meaning of this clause.

In Swift, the board had to determinewhether employeeswho were locked out by the employerwere"absent" for thepurposesof apayguaranteein thecollectiveagreement.It employedsimilar techniques,cited De Havillandwithapproval,and arrivedat muchthe sameinterpretation of the term (at pp. 17f):

We are satisfied after a reviewof several dictionaries and the judicialauthorities referred tous by counsel for the company, that absent means "being away from a place", or as Mr.Justice Anglinofthe Supreme Court ofCanada said inMichelBrunet v. the King (1918), 42D.L.R 405930 C.C.C. 16, 57 S.C.R 83, "physical non-presence for whatever cause",

In these cases, the arbitrators were called upon to interpret the language of the collective agreementsbefore them, and in so doing they attempted to giveeffect to the mutual intent of the parties who createdthose agreements. Here, however, the collective agreement is silent about leaves of absence. It isconceded by the Association that the Board retains the right to award such leaves so long as in doingso it does not infringe the express provisions of the agreement. Nevertheless,the issue here is not theconstruction of mutually-fashioned words in an agreement, but the elucidation of a concept -leave ofabsence - in common use. Absent evidence of nonconforming practice, the only recourse available isto the ordinary or common-sense meaning of the term.

The factual issue is whether El Ash's attendance at the Ontario Police College in October,November and December 1990wasconsistentwithhisbeingon "leaveof absence." I have found thatattendance at the PoliceCollegefor the purposeof LevelII trainingisan integralpart of a cadet'sdutiesand that it fallsto the Board to determine whether andwhena cadet attends the College. Sincea cadetattendingthe Collegeiscarryingout hisjob dutiesas assignedby the Board,I cannotfindthat he is"absent"fromhisworkwhenhe is inattendanceat the College.He is"at work,"as muchso asifhewas carryingout any other assignmentwithin the Board'scontrol. In its common, everydaymeaning,"leave of absence" connotespermissionto be awayfromwork. Attendance at work is inconsistentwithabsencefromwork.Thiswasnot acaseof anemployeeattendingat worknotwithstandingthathehadbeengivenpermissionto stayaway.Thewholeintentandpurposeof the purportedleaveof absencewas that EI Ash should attend Police College. In effect, it waspermissionto work, in circumstanCeswherein the Board considered that it was not necessarilyobligedto continue his employment. I findthat EI Ash was in fact present and at work when he attended the Police College for the purpose ofcompleting his Level II training in October-December 1990.

WATERLOO REGIONALPOLICE =7= POLICEASSOCIATION

The Board's first preliminary objection was that the grievance is inarbitrable because El Ashattended the College on leave of absence,the grant of which waswithin its unfettered discretion. I have

found that he was not absent from work while attending the College. His presence at work was

inconsistent with being on leave of absence. I therefore find that El Ash wa~ not on leave of absencewhile attending Police College. The first preliminary objection is therefore dismissed.

Merits

There are two branches to this Association grievance. The first is that the Board was in breach of its

article 1 obligations to the Association when it engaged in individual bargaining with El Ash over the

terms of his return to Police College. The second is that the Board was in breach of its obligation topay El Ash his salary in accordance with Appendix 'A' of the collective agreement for his attendance

at Police College. The two branches are joined to the extent that the terms of the alleged individualbargain were that no salary would be paid to EI Ash for re-attending Police College.

I have already found that EI Ash was not on leave of absencewhen he re-attended the college, but

instead was fulfilling a work assignment. Payment for time worked is clearly a matter within the scopeof collective bargaining between the Association and the Board, and the parties have made specificprovisions in their collective agreement for such payment. The statutory scheme in force in this provinceassigns to the Association exclusive bargaining authority for employees within the bargaining unit itrepresents. Article 1.01 of the collective agreement setsout this sole agency, and article 1.03providesthat cadets are included in the unit. For the Board to enter into an agreement with an individual

employee respecting the payment or non-payment of salary for work performed was clearly a breach ofits obligation to the Association, with whom it undertook by agreement and was required by statute todeal exclusively. The grievance succeedson the first branch.

The second branch is somewhat less simple. The Association concedes that when El Ash failed

the examination a second time and was not permitted to write it again without re-attending the college,the Board had several options. It could terminate EI Ash's employment, reassign him to civilian

employment, or assign him to return to college and attempt to complete the Level II training. The

Board could also have discussed the matter with the Association, and the parties might have agreed ona solution to the novel problem that EI Ash's second failure posed. It is conceded that the parties could

have agreed to have him re-attend the course without pay. I should like to stress that it was not arguedthat the Board was obliged - as for example by the terms of an employment equity plan - to afford EIAsh a second opportunity to take the Level II course. The issuewas argued on the basis that whetherEI Ash was to be assigned to repeat the course was within the sole discretion of the Board.

The Association argues that having decided to assignEI Ash to repeat the course, the Board was

obliged to pay him his salary during that assignment. This argument implicitly characterizes whatoccurred as a two stage process: first, a decision to have EI Ash repeat the course, and then a decision

to require him to waive his salary. The evidence does not sustain this characterization. It is plainlyapparent that the Board's decision was to permit EI Ash to repeat the course on an unpaid basis. Asevidenced by the testimony of Staff Sgt. Calma and Deputy Chief Miller, the arrangement was a "deal"

and EI Ash was encouraged to request unpaid leave as a way of improving his "bargaining position"with the Board. I have already found that the Board was in breach of itS obligation to the Association

inengagingin individualbargainingwithEIAsh. The"deal"wasundoubtedlyanimproperonefor this

- ---------

WATERLOO REGIONALPOLICE =8= POLICE ASSOCIATION

reason and socannot be enforced. The difficulty with the Association's position is that the unenforceable

deal was not simply that El Ash gave up his salary for a period of time, but also that he be assigned toreturn to Police College to repeat his Level II training. Moreover, while the deal was improperlynegotiated, the Association concedes that the samedeal could havebeen reach~d by proper negotiationsbetween the parties: it was not wrong in substance, and it was within the competence of the parties toarrange. By the same token, the Board was not obliged to retain EI Ash in its employment or assignhim to repeat the Level II course. Finally, asnoticed earlier, the Association hasnot pursued its originalallegation of duress.

On the other hand, it is evident that attendance at Police College is among the duties of a cadet

for which he is paid a salary; that EI Ash's second period of attendance at the college was in the natureof a work assignment; and that the collective agreement setsout the salary and other consideration dueto a cadet during Level II training. I have no hesitation in finding that had the Board simply assignedEl Ash to repeat the course and then withheld his salary, it would have been in breach of the paymentprovisions in the collective agreement. Having regard to all the circumstances of the case before me,though, I think that the nonpayment of EI Ash's salary must be viewed as subsidiary to the breach ofthe recognition provision, and not as a separate breach in its own right. The implications of this char-acterization are considered below, in the context of fashioning an appropriate remedy.

Remedial Jurisdiction

The Board's second preliminary objection was to the form of the grievance, and specifically that it wasnot open to the Association to claim individual monetary relief for El Ash in the circumstances. Article

22 of the collective agreement provides that "All complaints and grievances shall be dealt with underthe provisions of Appendix "B" to this Agreement," which is set out in full below:

1.

APPENDIX"B"COMPLAINTAND GRIEVANCEPROCEDURE

When a member of the bargaining unit has any grievance or complaint, he or she shallforthwith convey to his or her immediate Superior, in writing, all facts relative to thegrievance or complaint. The Member and the Superior shall make every attempt toresolve the problem at this preliminary stage.

If the Member of the bargaining unit and the Superior fail to resolve the grievance orcomplaint to the satisfaction of the Member, or if the Superior fails to discuss,acknowledge or otherwise deal with the complaint or grievance, the Member mayinvoke thereafter the following procedure in an attempt to remedy the cause of his orher complaint or grievance.

(a) The Member shall communicate his or her complaint or grievance in writingto the official representative of the Association, setting down all matterspertinent to the dispute and if the communication differs in any importantaspect from the original complaint, a copy shall be transmitted to the saidSuperior.

(b) The Association shall investigate the complaint or grievance and if in thejudgment of the Association the complaint or grievarice isjustified, presentsuch complaint or grievance to the Chief of Police or his or her designeefor consideration.

2.

WATERLOO REGIONAL POLICE =9= POLICEASSOCIATION

(c) The Chief of Police shall hear or receive the complaint or grievance andwithin five (5) working days communicate. in writing to the Associationrepresentative. his or her decision relativeto the complaint or grievance.

(d) If dissatisfied with the ruling of the Chief of Police or his or he.r designee.or ifthe Chief of Policefails or refusesto dealwith the complaint or grievance.within the specified time.the Association may file with the Board. thecomplaint or grievance within the fifteen (15)days of the date the complaintor grievance was submitted to the Chief of Police or his or her designee.

(e) The Board shall cause the complaint or grievance to be investigated orcause an inquiry to be held between the persons involved in the dispute.and shall within thirty (30)days of the receipt of the complaint or grievance.communicate in writing their decision in the matter.

This procedure shall not preclude the Board from referring the complaintto the Ontario Police Commission where. in the opinion of the Board. thematter can be best determined by such a referral.

(f) If dissatisfied with the decision of the Board. or if the Board fails toacknowledge or act upon the complaint or grievance the Association may:

(1) Where the differences arise from the interpretation, applicationor administration of the Agreement submit the matter for arbi-tration in accordance with Section 33 of the Police Act, or

(2) Where the differences arise from other causes refer the dispute,grievance or complaint to the Ontario Police Commission fordetermination.

(g) Any time limit specified in this procedure may be enlarged or extended. bythe consent of the Parties then so engaged in the procedure.

(h) In addition to or instead of the foregoing provisions, where the complaintor grievance involves:

(1) Questions of the application or interpretation of the provision ofthis Agreement, or

(2) A group of employees, or

(3) The dismissal of any employee, or group of employees:

The grievance may be submitted by the Chairmanof the Association's grievance committeedirectly to the Chief of Police and then sections (c), (d). (e). (f) and (g) shall be followed.

This complaint and grievance procedure shall be subject to the provisions of the Police Actand regulations thereto.

The reference to the PoliceActcorrespondsto the preambleto the collectiveagreement,whichdeclaresthat the agreement is made pursuant to s.29of the PoliceAct, R.S.O. 1980,c.381 as amended. ThePoliceAct provided for the arbitration of grievancesin s.33(1). During the term of this collectiveagreement, the PoliceAct was repealed and replaced by the PoliceServicesAct (supra). The corre-sponding provisionin the newAct appears to be in s.l23 and ss.1-3of s.124.

The Board argues that the collectiveagreementestablishestwodistinctgrievanceand arbitrationprocedures, one for resolvingcomplaintsby individualmembersof the bargainingunit and the other,at paragraph (h) of Appendix "B", for Associationgrievances. The grievancebefore me was filed bythe presidentof the Associationunderthe procedureinparagraph(h). .TheAssociationis thereforebarred from seeking individualrelief.

WATERLOO REGIONALPOLICE = 10 = POLICEASSOCIATION

In myview these submissionscannot succeed. The Boardconcedesthat the grievanceinvolvesaquestion of the applicationor interpretation of the collectiveagreement,and sowasa proper grievancefor the Associationto bring under paragraph (h), subparagraph1 of the Appendix. This procedure is"in addition to or insteadof' the procedureset out earlier in the Appendix. The two are not mutuallyexclusive;either can be employed if the grievancefitsone of the categories set out in the numberedsubparagraphs of (h). The procedure in (h) applies to individualdismissalgrievancesand to groupgrievancesof allkinds,for which the parties musthave intended individualrelief. Paragraph (h) is notrestricted to grievancesfiled by the Associationin its ownbehalf, and there is nothing in the wordingof Appendix"B" tosuggestthat the partiesintended to denyreliefto affectedindividualssolelybecausethe Associationcarried the grievanceunder paragraph (h). In thisconnection it maybe noted that theprocedure between the parties is identicalin the twoschemes,the onlydifferencebetween them beingthe involvementof the individualmemberwhocarrieshisor her owncomplaint in the initialstagesofthe former procedure. I therefore find that I am not precludedfrom awardingindividualrelief in thiscase merely because the Association proceeded under the procedure set out in paragraph (h) ofAppendix "B".

Havingmade thisdetermination, it isnot necessaryto finallydecide the merit of the Association'ssubmissionthat I maytake jurisdiction to awardindividualrelief from the statutory provisions,whichsupplya procedure for referring a grievanceto arbitration"in additionto" (per the PoliceServicesAct)or "notwithstanding" (per the old PoliceAct) the procedure set out in the collective agreement.Nevertheless, it may be observed that the procedure under the old PoliceAct, which the partiesincorporated by reference in Appendix "B" of their collectiveagreement, appears to differ in somerespects from that introduced in the new legislation.Whileit isnot necessaryfor me to make a findingin this regard, it does appear on the face of the provisionin the PoliceServicesAct that there maynowbe no statutory access to rights arbitration except by wayof application for conciliation. No suchapplication wasmade in this case. It mayalsobe noted that where the former act defined the matterof a grievance as a difference between the parties relating to the interpretation, application oradministration of an agreement or an allegationthat it has been violated, the current act refers to adifference between the parties concerningan agreementor an allegationthat it has been violated. Inthe case before me it is not necessaryto determine what if anyconsequences these statutory changesmight otherwise have had on myjurisdiction, as I am satisfiedthat I was properly appointed by theparties in accordancewith the terms of the collectiveagreementfrom whichI derive myjurisdiction.

RemedialConsiderations

To summarize,I havefound that the Boardwasin breachof itscollectiveagreement obligationsto theAssociation inasmuch as it engaged in a private "deal" with EI Ash bywhich he agreed to forego hissalaryin exchangefor the opportunity to repeat the PoliceCollegecourse. The Associationargues thatthe appropriate remedyfor thisbreach is to reimburseElAshfor his foregone salary. I havefound thatthe form of the grievancedoes not bar the awardof such individualrelief. The remainingquestion iswhether it is appropriate to awardsuch damagesin all the circumstances.

The Associationurges that to fail to awarddamageswouldamount to endorsing or givingeffectto the private arrangement in breach of the collectiveagreement,and so would reward the Board foritsbreach. In the Association'ssubmission,damagesshouldbe awardedto discouragetheBoardfromengaging in a similarbreach ~gain.

WATERLOOREGIONALPOLICE = 11 = POLICEASSOCIATION

The proper approach to the awardof damagesat arbitration is remedial and not punitive. Theobject of arbitral remediesisto put the parties as far as possiblein the relativeposition theywouldhaveoccupied had the breach not occurred. The principalviolationof the collectiveagreement in this casewas the individualbargaining. Had the Board compliedwithits collectiveagreement obligations,anyone of a number of outcomes might have followed. At its sole discretion, the Board might have ter-minated EI Ash's employment for failure to achievethe necessarystandard of training; it might haveoffered him civilianemploymentoutside the bargainingunit; or it might have assignedhim to repeatthe Police College course and paid him accordingto the collectiveagreement during his attendance.Alternatively, the Board might have engaged the Associationin discussionand the parties mightthenhave agreed to have EIAsh repeat the coursewithout pay. There isnothingin evidenceto suggestthatanyone of these outcomes would havebeen more likelythan anyof the others, except that the Boardwas evidently reluctant to dismissEI Ash without a further trial of his abilities. In particular there isnothing to suggestwhat attitude the Associationmighthave taken had the question been put to it. Iam simplyunable to find, on the evidence and submissionsbefore me, that EI Ash would have beenassigned to repeat the course with full payhad the Boardnot violatedthe collectiveagreement.

In view of this uncertainty, and havingregard to all the circumstancesset out above, I have con-cluded that an awardof damages is not appropriate in thiscase. Nor is there anyreason to anticipatethat this decisionwillbe taken by the Board as licenseto ignoreits collectiveagreement obligationsinfuture. In all the circumstances,declaratoryrelief in favourof the Associationisboth appropriate andsufficient. I therefore declare that the Board violated the collectiveagreement by entering into anindividualarrangement with El Ash concerning terms and conditionsof employmentwith respect towhich the Associationwas the exclusivebargainingagent. The grievanceissustained.

Dated at Toronto, December 11,1991,

~~(Prof.) Paul Craven