Friday, January 29, 2016

Police Suspension With Pay: A Middle Ground

There is significant controversy right now about Ontario's Police Services Act, regarding the suspension of officers, with pay, when they are subject to disciplinary proceedings or criminal charges.

Because of the time involved in these proceedings, it's a reality which can legitimately be infuriating - in hindsight:  These processes can take multiple years, and then at the end, if it is determined that the police officer did indeed engage in serious misconduct, we scratch our heads and ask "So why did we pay him to stay home for the last x years?"

I would urge moderation.  At the outset of any process, we don't necessarily know how it will resolve.  And suspensions without pay can also render significant injustice.

The Private Sector Analogy

The closest private sector analogy to this issue would be discharge grievances in unionized environments.

If I'm a unionized employer, and I believe that an employee is guilty of significant misconduct, I might go ahead and discharge him.  His union may grieve, and eventually send the matter to arbitration.

In the mean time, the individual is out of the workplace, and not being paid.

At the end of the arbitration, the arbitrator is called upon to determine if the discharge was an appropriate action.  If the employer fails to prove the misconduct, then the employee will usually be reinstated with full back pay.

When the employee has been off work for two years, that's a large amount of money.  But on the flip side, that's two years without a steady income to provide for one's family - that's a lot of hardship for the employee and his family, on unproven allegations.

There's a secondary question, too.  Even if the employer proves misconduct, then the question becomes whether or not it was serious enough to justify discharge.  In many cases, an arbitrator will substitute a different penalty - for instance, reinstating the employee, but substituting an unpaid suspension for a period of time - often significantly less than the amount of time the employee was actually off, meaning that the employee is still entitled to significant back pay.

This model has its advantages, certainly, but it isn't perfect, and sometimes puts employees to very substantial hardship because of false or trivial allegations of misconduct.

Putting the Punishment Before the Process

We need to bear in mind that not every case is clear cut.  In some cases, it isn't clear that there was misconduct.  In others, it isn't clear that the misconduct will warrant the discharge of the officer.  Recall the discharged police officer who last year made the news because he sent a mocking letter thanking the police chief for his three year paid vacation?

His misconduct was at the margins:  He sent 'confidential' information about a person in custody to a mutual friend, for seemingly good intentions.  It was information that had the potential to interfere with an ongoing investigation, but ultimately there was no impact from the disclosure, and the officer took full responsibility for the action from the outset.  This was certainly a close case, and in the private sector I suspect that the conclusion would have been that a discharge was not warranted.

So consider where we stood at the outset of that 3 year process?  We know it's going to be a long time; we don't know how it will turn out; it's entirely plausible that he will receive a slap on the wrist or a short suspension, and be put back on the job.  Is it fair to impose 3 years of financial hardship on him before that process has run its course?

No.  That seems straightforward.  Punishing somebody in such a way, before it is found that they deserve it, is deeply unfair.

The Middle Ground

Either extreme, in my view, is likely to render injustice on a frequent basis.  On the one hand, suspensions with pay allow officers guilty of severe misconduct to continue drawing a salary so long as they can drag out the legal processes.  On the other hand, suspensions without pay have the potential to put innocent officers into dire financial situations.

My suggestion would be that the Police Services Act create an expeditious process for interim remedies:  If the Police Services Board is confident that the officer will be found guilty of conduct deserving of discharge, then it can go to an adjudicator for an order authorizing a suspension without pay until the disciplinary/criminal proceedings are complete.

The specific onus could be the subject of discussion:  I would propose a threshold of a 'strong prima facie case' for discharge - i.e. that the evidence is very strong that the misconduct occurred, and that the misconduct clearly calls for discharge.

This way, in the clearest cases, wrongdoers can be denied of this lengthy paid vacation...but in the less clear cases, we continue to give the accused the benefit of the doubt.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

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