Employer has the right to fire police officer facing criminal charges, rules appeal court

The dismissal of a former Quebec City police officer was upheld by the Quebec Court of Appeal after it ruled that his employer had the right to fire him while he was the subject of a pending criminal investigation.

Frank Berton, a constable with 12 years of experience, was fired after an investigation found that he had allowed two detainees to beat up another prisoner inside a police van as they were heading towards a courthouse in August 2009. Videotape evidence revealed that Berton told two detainees in the van that they would be transporting a pedophile. A few minutes later, the prisoner was beaten up. Berton as well as two other police officers were charged on February 2010 with criminal negligence and being an accessory to an assault. On March 2012, Berton was found guilty of the charges, and was sentenced to 120 hours of community work.

In the meantime, a disciplinary committee decided on August 2010 to fire the police officer before a verdict had been rendered. Berton, with the support of the Quebec City Brotherhood of Police, contested the dismissal and filed a grievance, claiming that the dismissal for acts that were the basis of a pending criminal investigation was a violation of the “acquired rights” he had under the collective agreement. He maintained that his employer could suspend him with salary, or even without salary if it could be demonstrated that it went against the interests of the police force to suspend him with salary. The police officer also argued that his dismissal does not fall in line with the past practices of his employer. He pointed out that some 20 police officers who faced criminal charges in the past were either suspended with or without salary, and that the employer waited until a verdict was rendered before imposing a disciplinary measure.

But in a unanimous ruling in Fraternité des policières et policiers de la Ville de Québec v. Québec (Ville de) 2014 QCCA 2035, the Quebec Court of Appeal upheld an arbitrator’s decision to dismiss the grievance and held that an employer’s right to impose a disciplinary measure flows from their right to direct the course of their business. Disciplinary measures in this case were outlined in the collective agreement and did not, as argued by the police officer, include an acquired right not to be dismissed until the criminal trial was final, even if that was the course of action that was normally followed, said Catherine McKenzie, a litigator with Irving Mitchell Kalichman in Montreal.

“It was a well-reasoned judgment that comes to a reasonable result,” observed McKenzie, whose practice includes employment law. “There was a danger that if (the police officer’s) argument was accepted, then if the person had not been convicted or found guilty in the criminal proceedings that would have meant he could not have been dismissed.”

But the police officer and the Brotherhood never maintained that the employer did not have right to take disciplinary measures, said Claude Leblanc, a labour lawyer with Philion Leblanc Beaudry Avocats in Quebec City. “We always maintained an employer has all the rights to dismiss an employee if they felt they had just and sufficient cause,” said Leblanc, who plead the case for Brotherhood. “Our only point of contention was the timing of the dismissal. We believe that the employer could not dismiss him before the criminal proceedings against him were completed.”

The argument that the arbitrator should have taken into account past practices too was dismissed. The appeal court found that while the city did not in the past dismiss police officers who faced criminal charges until a verdict was rendered, that did not preclude the employer from dismissing an employee following a disciplinary hearing. “The appeal court found the terms of the contract were clear, and held that you cannot undo the clear rights of the employer (stipulated) in the contract because it chose not to exercise it in other instances,” noted McKenzie. “They are definitely favouring the language of the contract over the past practice, which is consistent with the rules of interpretation in general.” But this does not imply that the principle of past practices has been weakened in Quebec, remarked Leblanc. “It all depends on the evidence,” noted succinctly Leblanc.

The ruling also highlights the differences between a private sector employer whose labour force does not have a union and a unionized workplace, added McKenzie. A private sector employer without a union would never have to wait for a criminal conviction to dismiss an employee if they had sufficient evidence to dismiss the worker. But in a unionized setting, depending on the terms of the contract, it could be more challenging as an employee’s job security is afforded far more protection than in the private sector.

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