Discussion Paper 1
Suspensions - A Balanced View
Royal Canadian Mounted Police
External Review Committee
©Minister of Supply and Services Canada 1988
Cat. No. JS 74-3/1-1
ISBN 0-662-56088-4
Royal Canadian Mounted Police External Review COmmittee
Chairman
Honourable René J. Marin
Vice-Chairman
Jennifer Lynch
Members
Joanne McLeod
William Millar
Mary Saunders
Executive Director
Robert F. Benson
The Committee is publishing a series of discussion papers to elicit public comment to
assist the Committee in the formulation of recommendations pursuant to the Royal
Canadian Mounted Police Act (1986). The views expressed in this paper are not
necessarily the views of the Committee.
Comments are invited; they should be addressed to:
Mr. R.F. Benson
Executive Director
RCMP External Review Committee
Postal Box 1159
Station 'B'
Ottawa, Ontario
K1P 5R2
Discussion Paper Series
Number 1: Suspension
Director of Research
Gisèle Parent
Researcher
Bernadette Kaye
with the assistance of
Jacques Courteau
Denis Kratchanov
Yvonne Martin
Consultant
Clifford D. Shearing
FOREWORD
Amendments to the Royal Canadian Mounted Police Act,* proclaimed into force
December 18, 1986, established the Royal Canadian Mounted Police External Review Committee
to review grievances and appeals from formal discipline or discharge and demotion
proceedings within the Force.
* At this time, only Parts II and VI of the RCMP
Act, S.C. 1986, c.11 have been proclaimed into force.
This paper is the first in a series of discussion papers. The Research section of the
Committee Secretariat is preparing issues related to the mandate of the Committee. The
Committee is seeking comment on the issues discussed in the series to assist it in better
understanding a number of personnel management problems affecting police ranks. Priority
in the series has been given to the issue of suspension. The paper does not seek to
resolve the issue but rather to circulate and discuss the various arguments in order to
lay the foundation for useful guidelines in the future. In a more modest way it is hoped
that while the paper may be useful in better understanding the problems of suspension, it
may also be of interest to appropriate authorities articulating policy in this important
field.
Robert F. Benson
Executive Director
RCMP External Review Committee
CONTENTS
I. Introduction
II. Suspension in the Police Environment
III. Values to be Balanced and Reconciled in a Suspension Policy
IV. An Overview of Suspensions in Various work Sectors in Canada
V. Models and options
VI. Conclusion
Bibliography
Over the years, both in the public and private sector, employer-employee negotiations
have resulted in a number of programs designed to improve working conditions and provide
employees with a variety of security nets against undue loss of income.
Administrative provisions dealing with absences from work with pay in circumstances
such as illness or long-term disability are examples of corporate efforts and governmental
support for the policy of protecting employees from suffering irreparable loss of income
due to circumstances usually beyond their control. Certain areas of employer-employee
relations, however, have to date received minimal formal scrutiny. The issue of
suspension, with or without pay, is such an area and seems in many instances to have
escaped formulation of policy satisfactory to bet and employees. All too often, the
absence of a clearly-defined suspension policy and its standard application have led to
uncertainty, confusion and frustration; employees unable to anticipate the circumstances
that can result in a suspension with or without pay (whether their own or that of a fellow
worker) may perceive any such action by the employer to be unfair or discriminatory.
In the police environment, which is of primary interest to this discussion, the problem
of uncertainty or predictability regarding the suspension issue has more far reaching
consequences.
Members of a police force may face suspension for any number of reasons. Generally,
they include:
- misconduct of an administrative nature (e.g., late arrival at work);
- misconduct within the police force resulting in a major contravention (e.g.,
insubordination);
- misconduct while in the execution of duties (e.g., being the subject of a complaint by a
member of the public) or a charge in criminal court arising from conduct either in the
course of or outside a member's duties.
The difference between each of these is obvious. while members facing administrative
misconduct may face suspension as a penalty, the question of suspension prior to a finding
of fact is usually an easy one to deal with. It can be quickly resolved because all
concerned parties are available. The difficulty arises in cases of major offences
sufficiently serious to preclude members from returning to full duty. The conduct may also
give rise to criminal charges and possible conviction. It is at this juncture that the
police force's managers, its members, and the public have significant interests and
concerns regarding this matter.
In dealing with such a case, the police force usually takes all reasonable steps to
reassure the public of the appropriateness of its response while at the same time being
fair to the membership, and more directly, the members involved. The latter, on the other
hand, may perceive the removal as unwarranted and undeserved punishment especially if it
is without pay and benefits. This is particularly significant for police as suspension
from one force precludes that member from obtaining interim employment in a similar or
same field pending the resolution of the issue. This is crucial for members with limited
or no other marketable skills or experience.
Members charged with a criminal offence benefit from the presumption of innocence
guaranteed by the Canadian Charter of Rights and Freedoms, and may argue that if
the guarantee is real and not fictitious, nothing should be done administratively which
could prejudice their opportunity to have a fair trial. Even when members are not charged
with offences, they may perceive a suspension pending resolution as an unfavourable
predetermination of the issue. It should be understood however that the "presumption
of innocence" as guaranteed by section II of the Canadian Charter does not apply to
the internal police disciplinary system.
The fundamental question is reduced to the issue of whether through their conduct
members have rendered themselves unable to pursue their assigned duties. The public seeks
the reassurance that the quality of policing is not diluted by persons who may not be
totally trustworthy, and who might be tempted to tamper with justice. If on balance it is
decided that the members, conduct is sufficiently grave to warrant removing them from
their regular duties, then the next issue to be considered is the length of time which may
elapse before they are able to resume their duties. The delay between the allegation and
its resolution is also problematic, as will be explored, since it increases the degree of
disruption to all concerned and may weigh heavily against fair treatment of one or both
interested parties.
A final issue regarding the question of suspension is that of equality of treatment
within different police forces. Police forces whether municipal, provincial or federal,
have diverse policies on the application of a suspension with or without pay.
In this environment, it is understandable that a member could perceive as inequitable
treatment the suspension of a member from one force with pay, while a colleague from
another force, under similar circumstances, is suspended without pay. This would be
particularly so where these same officers had been involved in a joint force operation.
Experiences such as this have led some to argue that because all police officers perform
similar duties under the Canadian Criminal Code and other federal statutes, the
same suspension policy should be applied throughout all police forces.
While this discussion paper does not attempt to resolve this particular problem, it
does concern itself with identifying and discussing issues germane to the fundamental
principle that the police should benefit from fair treatment in administrative decisions
relating to their specific and special duties in society.
In focussing on these issues, this paper seeks to obtain informed comments and
discussion from leaders in the police community and others who have worked with different
legislation across Canada. It also seeks to elicit the views of members who may have
experienced first-hand the difficulties of suspension.
In all employer-employee relations, the relationship between employer and employee is
based on a contract whether written or implied: the employer provides remuneration in
exchange for a service while the employee provides a service in exchange for remuneration.
As part of this two-way relationship, the employer may add to this: "If I hire you,
you must obey all internal rules and behave at all times in a way that will not harm me.
If you fail to do this, I reserve the right to deal with you as I deem fit." Of
course, this way of defining a labour contract is quite simplistic, but it nevertheless
captures the essence of contractual obligations between employer and employee.
Most employers, in establishing their corporate identity or image, set out expected
employee conduct or behaviour in policy directives or codes of conduct/ethics. Generally,
and based on the degree to which an employer perceives this code to have been violated by
an employee, the managerial response is selected from a full range of sanctions beginning
with an oral reprimand and in the extreme, ending with dismissal from the organization.
While suspension is used by some employers as a disciplinary measure within this broad
range of sanctions, for the purpose of the following analysis we are concerned with its
use only as an interim measure where insufficient information or evidence is available to
the employer to make an immediate determination regarding the employee's conduct.
Suspension in this case might be viewed as a waiting period during which the employee is
held somewhere between full employment and discharge pending a decision regarding the
employee's behaviour.
The decision to suspend an employee, within this context, and more particularly whether
it is with or without pay has obvious implications for both the employee and the employer.
The impact of this decision will be further discussed in the following pages. Before we do
so however, there are a number of premises or assumptions in the following analysis that
must be explicitly recognized.
First, the entire discussion of the suspension issue is based on the assumption that
the conduct in question, in some fundamental way, impedes the employee's ability to
fulfill his or her responsibilities or would be so considered by others. This implies that
temporarily removing the employee from the performance of regularly assigned duties (i.e.,
suspension) is the only applicable measure in such cases. Thus, a critical question to be
asked in examining a suspension policy is how it distinguishes cases to which the policy
should be applied.
Second, and related to the first assumption, is that suspension is only one of a number
of possible measures for dealing with an employee suspected of misconduct. One obvious
alternative would be to temporarily reassign the employee to duties that do not present or
cause an organizational conflict of interests. A customs officer suspected of smuggling
might be reassigned to a desk job pending a determination of the issue. A second question
to be asked in assessing a suspension policy then is the extent to which it recognizes and
embraces alternative strategies or measures.
Third, the parties who have control over the process and more particularly the duration
of the time interval between initiation of the suspension and the final determination are
a critical variable in assessing the issue since the intensity of the value conflicts is a
function of this time lapse. whether the final determination is within the organization's
control or not and the extent to which either the employer or the employee concerned may
affect the process are critical.
The first category involves behaviour unrelated to third party proceedings which may be
resolved by the organization itself. An example of this category would be an employee
suspected of having breached the organization's internal code of discipline. Because this
breach does not result in civil or criminal proceedings, the outcome does not depend upon
third party action. The employer decides whether the misconduct has occurred. In such a
case the decision can be reached fairly expeditiously even taking due process into
consideration. Any delays in the decision-making process are usually under the control of
the employer. It should be noted that an employee may also generate certain delays in the
determination of the misconduct. The employer, in ensuring that the employee is treated
fairly, is somewhat constrained to agree to such delays.
The second category of employee behaviour is that which is to be resolved by external
authorities. Such would be the case, for example, of a bank teller suspected of having
falsified bank statements. Such actions are indictable and the determination of guilt or
innocence may depend ultimately upon a third party, namely a court of law. In addition,
however, the employee by law is given any number of opportunities for appealing third
party decisions and therefore has a measure of control over the length of the process. The
significance of this distinction in assessing a suspension policy should become more
obvious in the following analysis. For the moment, however, it is important to note that
the duration of a suspension has a significant impact on both the employer and the
employee. While many employers will wait for the outcome of the criminal proceedings
before making a final determination of the issue, they do so by choice. They are not bound
by the decision of the criminal courts and may therefore move to dismiss an employee
before the guilt or innocence of the employee has been decided. Therefore. it is important
to consider who controls the outcome of the employee's case.
When the employer decides to suspend an employee, this is done at a cost. Few employees
arrive on the employer's premises fully trained to fulfill all of the responsibilities
expected during the length of employment with that organization. In certain sectors of
employment such as the military there are few, if any, preparatory training opportunities
available to individuals seeking to work in such an environment. The employer may
therefore bear almost all of the financial burden of training the employee to perform the
assigned responsibilities. To lose the services of that employee, even temporarily. is
costly as the employer must either do without these services. make temporary reassignments
of personnel which may disturb the productivity of this personnel, or train a new employee
to take on the suspended employee's responsibilities. The proper recruitment and training
of such an employee for specialized functions is often lengthy, sometimes taking 10 to 12
months or longer. There is also no way for the employer to recuperate the loss incurred in
replacing an experienced employee.
It can also be advanced that a long-term effect on the employer is experienced where
the suspicion against the person is later proved to be correct. It may be argued that if
the employee was paid, during the period of suspension, an undeserved reward was received.
The employee was awarded a salary even though not fulfilling his or her part of the
bargain, namely working for the organization.
Furthermore some may say that being suspended and paid is really a variation of a
holiday. This argument is, of course, a question of personal perception.
Although a number of factors control the degree to which the employer feels the impact,
either in monetary or organizational terms, of the suspension of an employee, it is
possible to conclude that such a measure is nevertheless harmful to the interests of most
employers.
While the impact of a suspension on the employee varies depending on personal
circumstances, and whether it is with pay or without pay, the uncertainty of such a
situation weighs heavily on the employee. In dealing with an employee whose conduct is
being contested, most employers prefer to be flexible, judging each case on its merits.
This approach, when combined with the absence of guidelines or policy for applying a
suspension, particularly in large decentralized organizations, may increase the anxiety
experienced by the employee pending the final determination of the situation because the
employee is unable to anticipate the actions of the employer.
The suspension of an employee with pay should, of course, pose no financial hardship on
the employee. There are indications, however, that there are still significant
psychological and social effects on the employee as a result of being removed from the
workplace.
The employee experiences stress because the suspension carries varying degrees of
social stigma. The suspension also generates uncertainty regarding the employee's future
with the organization. Relationships with colleagues, promotional and training
opportunities are also in jeopardy.
Mental health may become a concern and depression or alcoholism and other behavioural
problems may emerge as a result of the suspension. Family members as well as the employee
may have to deal with the psychological effects of the suspension, particularly where the
length of the suspension is unknown and/or where it extends for a lengthy period of time.
If we focus on the issue in relation to the police environment, it may also be
submitted that a suspension has graver consequences than in other sectors. A police
officer must be, before anything else, a model of honesty above suspicion. Once a police
officer is suspected of a wrongdoing and then suspended, it matters little if in the end
the member is exonerated, because in some cases, the stigma may be attached for life. Some
submit that a police officer who has once been suspended will not be promoted and is even
unemployable. There are known cases, however, where this is not the experience.
Suspension without pay is generally thought to pose a more significant hardship on the
employee. The financial effects may involve restrictions on the normal activities of the
employee and family members. The necessities of life, such as food, health care and
accommodation, particularly where there is no other regular source of income, become a
major concern for the employee. Luxuries such as holidays are no longer affordable and in
a worst case scenario, the employee may be forced to abandon the mortgaged home.
Some may also argue that suspension without pay is a disguised way of forcing an
employee to resign, particularly if all benefits such as medical insurance are revoked
with the pay. If the duration of the suspension is lengthy, an employee is forced to look
for alternative employment or risk irreparable loss of income and benefits. The
curtailment of certain benefits may pose significant hardships on an employee and the
employee's family as administrative requirements may impede the employee's efforts to
resume coverage on a timely basis.
The financial burden and resulting difficulties of suspension without pay only serve to
compound the psychological and social effects previously discussed in the context of a
suspension with pay.
Because of its gravity, the suspension issue merits careful and serious consideration.
A suspension is a managerial strategy that arises when due process considerations are
inserted into a management environment. The visual imagery implicit in the suspension
concept is instructive. Suspension implies that employees are lifted out of, and suspended
above their normal situation while the process of determination takes its course. By
removing the employee from the workplace, the employer attempts to ensure that the
integrity and safety of the organization are maintained. This resolves the managerial
problem while reserving judgement about the suspected wrongdoing until sufficient
information is available.
The employer has legitimate organizational goals and objectives in support of the
continued existence and livelihood of the organization. The employer is entitled within
the boundaries of societal rules and legislation to establish this corporate identity,
taking whatever reasonable measures are available to protect this identity. When the
employer perceives that an employee may present a risk or threat to the integrity or
safety of the corporate identity, unless obligated by law or collective agreement to deal
in a particular way with that employee, the employer is free to suspend that employee and
is under no obligation to provide remuneration.
The interests of the employee, on the other hand, stem mainly from the principles of
natural justice. Procedural fairness should prevail and the employee therefore has the
right to be treated fairly. This includes the right not to be subjected to administrative
sanctions without the benefit of procedural fairness.
It may be argued that the employee, suspended whether with or without pay pending final
determination of misconduct, is also being suspended prior to the application of fair
procedures since these procedures only come into play in the course of that final
determination. The employee is thus being "sanctioned" without benefit of
procedural fairness, hence the employee's interests are harmed.
It is important to introduce an additional element to this discussion, that is whether
the employer is in the public or private sector. This is relevant to the suspension issue
as there is an official requirement in public sector organizations to reflect the
principles of fairness and equity in their dealings with the public. In trying to
understand the relationships between themselves and their employer in matters which may
give rise to a suspension, public sector employees will naturally tend to compare the
treatment they receive from their employer with the treatment they are expected to give to
the public. Public sector employers therefore have to reconcile their employees,
expectations with the public's expectations of total integrity and honesty.
The issue thus becomes one of balancing all of these competing interests so as to
attain the best solution possible. The actual practicability of the suspension issue is
mostly characterized by the infringement of one or both of the involved parties,
interests. One therefore has to choose either a solution where the interests of one of the
parties are prejudiced or try to find a balanced solution.
To gain a better understanding of the difficulty in reconciling the various interests
inherent to the suspension issue, we look next at some of the situations regarding
suspensions in the public and private sectors, including the policy of national and
provincial police in this matter.
While empirical data regarding suspensions in various work sectors should normally be
included in the analysis which follows, this is so only in a limited fashion as the
collection of empirical data on suspensions was hampered by sensitivities regarding the
subject matter under review. The following therefore is an overview of suspension policies
in various work sectors. While it is not an exhaustive or comprehensive analysis, it is
nevertheless informative, serving to illustrate the disparity in the treatment of
employees across employment sectors and more importantly, within similar employment
sectors.
Personnel related responsibilities in the Federal Public Service are governed in part
by the Public Service Commission, which is responsible for functions such as the
recruitment, selection and training of personnel, and the Treasury Board of Canada, which
is responsible for functions such as pay and benefit packages. In reviewing current policy
regarding suspensions in the Federal Public Service, guidance is found in the chapter on
discipline contained in the Treasury Board's Personnel Management manual. In this chapter,
employees and managers are advised that the suspension of an employee is always without
pay and for one of two reasons, only one of which is relevant; that is to protect the
employer. The Manual states:
Suspension - the temporary removal of the employee from the place of work without pay
for one of two reasons:
- to protect the service, persons or property pending the investigation of certain
suspected misconduct when the presence of the employee at work cannot be tolerated.1
1 Treasury Board Canada, 330-196 (82/84, vol. 7)
The Public Service manager, in applying this policy, must attempt to balance the fair
treatment of the employee with the determination of the risk or threat posed to the
service, persons or property of the government by the employee's presence in the work
place.
While no specific guidance is provided to the manager in weighing the factors involved
in this determination, the guidance provided in dealing with disciplinary measures is
useful. The manager is referred to other sources, such as existing legislation, collective
agreements, and regulations which provide standards or instruction.
Managerial flexibility is stressed in the policy as is the need for consultation with
other supervisors or personnel advisors.
Public perception of the impact of the employee's suspected misconduct, whether on duty
or off duty, also plays a key role in the employer's consideration of the suspension
issue, for lack of public confidence in the integrity of the government may have
significant ramifications.
A random sampling of relevant suspension policies in provincial public services
(Alberta, British Columbia, Ontario and Quebec) were also obtained for the purpose of
comparison. It is interesting to note that most provided for suspensions both with or
without pay, and that some also introduced the concept of maximum duration of the period
of suspension. Presumably this provision addresses the economic considerations of the
suspension issue.
The two following passages are excerpts from public service labour arbitration cases
pertaining to the suspension of an employee. They give an indication of the present state
of the law in this area; namely, the employer must be able to justify the suspension, an
employee has economic rights, and each case must be judged on its own merits:
In my view, the employer must justify the reasonableness of any act which has the
effect of penalizing an employee. If an employer wishes to suspend an employee while a
final decision is made, there must be good and sufficient cause. To hold otherwise ignores
the employee's economic interests pending the making of the final decision.2
2 McManus v T.B.C., P.S.S.R.B. 1662-2-8048, 8078
Another case states similar principles:
On the basis of the evidence, I have little difficulty in finding that the employer was
justified in suspending the grievor from his employment as an Immigration Counsellor. The
offences that are alleged against him are directly related to his duties and
responsibilities and, indeed, strike at the heart of the operations of the Canada
Immigration Centres in the Hamilton District. The management of the Hamilton District
would have been vulnerable in the eyes of both government and the public if it had
retained the grievor in his function as an Immigration Counsellor in the face of the
serious criminal charges laid against him. In addition, Corporal Tait and Staff
Superintendent Farraway expressed their considered judgment that the efficacy of liaison
and cooperation between their respective police forces and the District Immigration
Services would have been impaired if, in the circumstances, the grievor had remained on
the job. Mr. O'Grady, the Supervisor of the Investigative Unit, testified about the
possible effects on the morale of his staff.3
3 v T.B.C., P.S.S.R.B. 166-2-7949,
Hamilton, 1980, p.23
Whereas the public sector's employer/employee relations are determined in part by its
mission, which is to provide services to the community and manage the municipality,
province or country by planning, organizing, directing and controlling public funds, the
private sector's employer-employee relations are determined in part by its profit-oriented
goals. Some might even say that because a corporation must make profits to survive and
because the common objective is the company's growth, there is little incentive for the
employer to lose the services of an employee for an indefinite period, much less pay for a
service which is not being provided. The employer must also be conscious of the impact on
the organization's continued ability to generate profits of keeping, on the job, an
employee suspected of misconduct. If the employee's alleged misconduct attracts sufficient
attention from paying clients such that the employer risks losing these clients if it
takes no action, the pressure to remove the employee through suspension weighs heavily on
the employer.
Among the corporations canvassed, no homogeneous way of dealing with the suspension
issue was observed. Some employers suspend with pay while others suspend without.
Suspensions are treated on their individual merits and many are dealt with in an
expeditious way. The idea is to judge employees on their whole conduct. Factors such as
number of years of experience, contribution, physical and mental health, possibility of
transfer, conflict of interests, and gravity of the offence are considered.
The test often applied involves the following considerations:
- Does the breach harm the corporate image?; and
- Can the employee function normally in the work milieu?
A number of employers such as the Canadian Armed Forces, and federal, provincial and
municipal police forces would normally be dealt with under the public sector but, due to
their specific functions in society relating to law and order, have historically been
autonomous from the regulatory controls imposed on the public service. Suspensions in
these organizations are generally regulated formally by either legislation or regulations.
An outline of their provisions follows.
A member of the RCMP may be suspended from duty where suspected of, or charged with,
contravening a federal or provincial Act. RCMP Regulation 29 provides:
Suspension from duty
29. (1) The Commissioner may suspend from duty any officer suspected of or charged with
contravening an Act of the Parliament of Canada or of a province or suspected of or
charged with a service offence.
(2) The Commissioner or any commanding officer may suspend from duty any member other
than an officer suspected of or charged with contravening an Act of the Parliament of
Canada or of a province or a service offence.4
4 Royal Canadian Mounted Police Regulations, GCR
1978 Vol. XV, c1391
Once a member has been suspended from duty, the Commissioner or a Deputy Commissioner
then may consider whether the member's pay and allowances are to be stopped. Section 2 of
the RCMP Stoppage of Pay and Allowances Regulations made pursuant to subsection
22(2) of the RCMP Act provides:
Stoppage of Pay and Allowances
2. The Commissioner or a Deputy Commissioner may order the stoppage of pay and
allowances of a member who is suspended from duty pursuant to subsection 29(1) or (2) of
the Royal Canadian Mounted Police Regulations.5
5RCMP Stoppage of Pay and Allowances
Regulations, SOR/84-886 Canada Gazette, Part II, Vol. 118, No. 24
If the Commissioner or a Deputy Commissioner does not order the stoppage of a member's
pay and allowances, the member will continue to be paid. The new RCMP Act appears
to have preserved the same principles regarding suspension. Section 13.1 provides as
follows:
13.1 Every member who has contravened, is found contravening or is suspected of
contravening the Code of Conduct or an Act of Parliament or of the legislature of any
province may be suspended from duty by the Commissioner.6
6 RCMP Act, S.C. 1986, c.11
It is to be noted that the definition of member includes officers. It is also apparent
from the above-noted authorities that a wide discretion is given in relation to the
suspension of the member and in relation to the stoppage of the member's pay and
allowances.
There does not appear to be any additional formal guidance or structure to the exercise
of this discretion.
In 1987, 27 Force members were under suspension for varying periods of time. While this
may not seem a significant number, the impact of just one such suspension on the
organization and the employee is sufficiently important to merit consideration, as we have
already noted.
The decision to suspend a member of a police force to which the Police Act of
Alberta applies rests with the Chief of Police. The regulations made pursuant to this
Act permit a suspension with or without pay or allowances. Where a member has not been
charged within four clear days after being suspended, the member is returned to duty
without loss of pay or allowances. The suspension of a member ceases on the determination
of the charge against the member.
Police forces in British Columbia, to which the Police Act of British Columbia
applies, may suspend a member of the Police Force. A suspended member, however, receives
pay for the first 30 days of the suspension, and thereafter at the discretion of the Chief
Constable and the Municipal Police Board.
This method of suspension allows time for a more substantial investigation into the
wrongdoing of the member. It may also prevent putting unnecessary financial hardship on
the member and the family. The 30 days "grace" period can be extended by the
Chief of Police or by the Municipal Police Board.
Furthermore, this method may have the merit of forcing both parties to hasten the
resolution of the case.
The Chief of Police has the discretion to suspend a member if the Chief believes on
reasonable and probable grounds, that the member has committed an offence under a Federal
or Provincial statute, or a disciplinary default under the Code of Discipline (made
pursuant to the Police Act) that in the opinion of the Chief, renders the member
unfit for duty. A member acquitted, and against whom no disciplinary proceedings are taken
is reinstated with full pay and all allowances for any unpaid period of the suspension.
The Chief of Police of a Manitoba Municipal Police Force may suspend a member pursuant
to the Manitoba Provincial Police Act. Suspension may be either with or without pay
and benefits.
Suspension of a New Brunswick police officer may be with or without pay at the
discretion of the Chief of Police according to the New Brunswick Police Act.
The Chief of Police of the Royal Newfoundland Constabulary has the discretion to
suspend a member pursuant to the Constabulary Act. Suspension is either with or
without pay. Should the allegation against the member be unfounded, the member is to be
reinstated with full pay and allowances for any unpaid period of the suspension.
Suspension of a member from a police force to which the Police Act of Nova Scotia
applies is very similar to that of British Columbia. That is, the suspension is always
with pay and allowances for the first 30 days and thereafter it is at the discretion of
the Chief of Police. The Chief of Police may suspend a member from duty where the Chief of
Police believes, on reasonable and probable grounds, that the member has committed an
offence under a Federal or Provincial Statute or a disciplinary default under the code
that, in the opinion of the Chief of Police, renders the member unfit for duty.
The suspension of a member of the provincial police or a municipal police force to
which the Ontario Police Act applies, is always with pay and allowances in the case
of interim suspension.
Suspension may be imposed by the Chief of Police where a member is suspected of or is
charged with a contravention of an Act of either the Parliament of Canada or the
Legislature of Ontario. The Chief of Police also has the discretion to suspend a member
where the member is suspected or charged with an offence against the code of police
discipline and where a member has been suspected of contravening an act of the Parliament
of Canada or of Ontario. Where the member has not been charged within forty-eight hours
after being suspended, the member is returned to duty.
Pursuant to the Prince Edward Island Police Act, the Code of Discipline for
the City of Charlottetown Police Department provides for the suspension by the Chief
of Police of a member suspected of contravening an Act of Parliament or Legislature of the
province or the code of discipline. Suspension is without pay.
The Regulations made pursuant to the Police Act of Québec provide that a member
may be suspended with or without pay depending upon the gravity of the misconduct and
other surrounding circumstances.
The decision to suspend a member of a police force to which the Saskatchewan Police
Act applies rests with the Chief of Police. Where suspended, the member receives pay
and allowances during the period of the suspension for at least 30 days and thereafter at
the discretion of the appropriate police board.
A member of the Canadian Armed Forces (an officer or noncommissioned member) may be
suspended from duty in circumstances that, in the opinion of an appropriate authority as
prescribed in the Queen's Regulations and orders for the Canadian Forces (QR&O),
render it undesirable in the interests of the service that the member remain on duty.7
7 Sections (208.04(3) and (208.04(2)(a)(ii))
During any period that members are suspended from duty, the entitlement to pay and
allowances continues but payments thereof to those members, or on their behalf, are
restricted to:
- in the case of officers, with the approval of the Commanding
Officer, advances of pay and allowances at a rate not exceeding $10.00 a month for
personal requirements, and to the mess of the officers, on their behalf, in the amount of
any mess account incurred by them but not exceeding $15.00 a month;
- where a member is married, or is not married but has a
dependent child, an amount equal to five days pay in the case of an officer and ten days
pay in the case of a noncommissioned member if that payment is made to the spouse or on
behalf of the dependent child of the member, as applicable; and
- where in issue, Isolation Allowance, and allowances
prescribed in Military Foreign Service Regulations.8
Where the pay and allowances of a member have been restricted as outlined above as the
result of the member being suspended from duty, and the member ceases to be suspended from
duty, the authority that suspended the member may order a deduction equal to the whole or
any part of the pay and allowances withheld under the applicable QR&O article.9
The Canadian Armed Forces', approach to the issue of suspensions raises an interesting
concept, that of partial payment. We will explore this approach later when looking at
suspension options.
As can be seen from the above summaries of legislation, there is great variety in the
tests to be applied before suspension is available. In some cases the employer must have
reasonable grounds to believe the employee has been involved in some specified
wrong-doing. In other cases suspension is available where the employee is suspected of, or
charged with, some specified contravention. Finally, in some cases no threshold is
provided and complete discretion is vested in the employer.
Suspension based on reasonable grounds to believe may better protect the rights of the
employee because suspension will then be better justified. On the other hand, suspension
in some cases will probably carry more of a stigma because it is directly linked to the
amount of evidence available.
It is not a function of this discussion paper to analyze the implications of various
tests for suspension but rather to present the considerations arising from the different
suspension options. The above comments regarding the tests for suspension are made only to
outline briefly some of the other issues arising from suspension. The following part of
this paper will analyze in greater detail the models and options raised by the preceding
legislation.
It may be said that whatever method is used to suspend an employee, the main criteria
to be considered are: maintaining a balance between an employee's right to fair treatment
and the employer's right to withhold the pay of individuals who are not performing their
duties or who pose a threat to the co-workers and the employer. This delicate balance is
explored further as we look once again at the employer's options regarding suspensions and
the extent to which reconciliation of the competing interests is achieved.
The temporary reassignment strategy provides for the suspension of the employee
suspected of having committed a wrongdoing from his/her specific role responsibilities but
not from work within the organization altogether; that is, suspension from their normally
assigned duties.
The reassignment to other duties proves to be an attractive solution to the dilemma of
balancing the rights of employers and those of employees. It provides for an integration
of the values identified earlier. Furthermore, the losses are minimal as employers obtain
the benefit of a productively employed individual during the waiting period. Employees are
paid, but are performing alternative work. The right to be treated fairly is preserved
because employees are not financially sanctioned and contrary to suspending employees with
pay, temporary reassignment does not generate the appearance of rewarding employees with
an unexpected "holiday". This type of approach also has the merit of keeping
suspected employees out of potential conflict situations as, for example, would be the
case of transferring to a desk job a customs officer suspected of assaulting someone at
the border.
There are, of course, limitations to this solution. There are circumstances where the
charges of wrongdoing are such that temporary reassignment is not appropriate. An employee
charged with committing an act of serious sexual aggression is likely to be removed from
the workplace because this employee would generally be regarded as a risk to the integrity
of the employer even if relegated to administrative duties. In such cases, only removal
from the organization may suffice. The practical limitations of a temporary reassignment
relate to problems of feasibility in finding alternative duties for the employee to
undertake. This is particularly true for small organizations, including police
departments, where detachments are small.
Despite these limitations, "temporary reassignment" could adequately deal
with the value conflicts to be balanced in a suspension and should always be carefully
considered.
The suspension without pay of an employee suspected of a wrongdoing rests mostly on a
contractual basis. In short, the employer takes the view that because the employee is
unable to fulfil the assigned duties prescribed by his/her part of the contract, the
employer is therefore no longer bound to fulfill his/her part of the contract, namely to
pay the employee.
Suspension without pay has the merit of being simple and of ultimately preserving the
employer's rights. Unfortunately, suspension without pay may not resolve the dilemma of
finding an appropriate balance between the rights of the employer and those of the
employee.
The employee perceives suspension without pay as denial of fair treatment because there
has been no determination of wrongdoing. Furthermore, the principle of procedural fairness
is a highly problematic issue especially with respect to the police. The police are
expected to give practical effect to the presumption of innocence when they arrest or
detain an individual. They may thus argue that this same principle should be applied to
them when dealing with their alleged misconduct.
Regardless of the work environment, however, suspension without pay may be perceived as
unjust: it chooses to preserve the rights of one party only - those of the employer -
while ignoring the interests of the employee.
It could be said that if suspension without pay is unjust for it poses hardship on a
perhaps blameless employee, suspension should always be with pay and with all benefits. If
simplicity was a characteristic of the issue, the suspension question would end here. It
is not however the case because suspending an employee with pay can also be an unjust
process. The nature of this injustice differs with the outcome of the case.
Another strategy which is available to employers is the application of a suspension
with pay for a specified period of time. This approach sets an upper limit, whether four o
five days or 30 days, beyond which a decision regarding the continuation of the pay is
required. Setting such a limit may encourage all concerned to proceed diligently and
expeditiously to a final determination. It also limits the extent to which either of the
interested parties must bear the cost of the suspension. Despite the removal of the
employee from the workplace, the employee is not prejudiced and is not monetarily
penalized during the statutory period. This permits the employee who may be anticipating a
lengthier period of suspension without pay to make any necessary financial arrangements
and arrange for the continuation of family benefits as may be required.
The employer also benefits from this approach as the salary costs of a lengthy
suspension, particularly where third party determination of the misconduct is applicable,
are a known and limited factor. There is less opportunity for the perception of
"rewarding" the suspended employee, or the employee "on holiday", as
employers and employees alike are aware that pay and benefits under this option are for a
specified period only.
Suspension with partial pay or benefits is another innovative approach to the issue of
a suspension. It merits consideration because in balancing the employee's interest in fair
treatment and the employer's interest to have productively employed staff, it attempts to
address itself to the problem of an employer who is unable to temporarily reassign an
employee to other functions. As we have previously noted, this is particularly significant
for small detachments that can ill-afford the loss of an employee but have few if any
other functions which could temporarily be assigned to the employee.
Suspension with partial pay or benefits may take a number of avenues, however, many
would argue that the most appropriate partial pay formula includes sufficient monies and
benefits for the suspended employee and family members to maintain a reasonable standard
of living during the interim period of the suspension. According to a 1986 Statistics
Canada Report entitled "Family Expenditures in Canada-Selected Cities, 1984",
the percentage of total family expenditure for food, shelter, and clothing is 35.8% for
the average Canadian family.
While this percentage, as the report notes, varies depending on factors such as
individual family characteristics and usual family income, it serves as a useful indicator
of the percentage of an employee's salary which would be required to maintain a
"minimum" standard of living during the period of suspension. An employer, while
not bound to the figure mentioned above, could nevertheless determine an appropriate
percentage of salary and continued benefits which all employees suspended for an interim
period would receive while suspended.
Whatever the final formula applied to determine pay and benefits allowable to an
employee while suspended, it is clear that where the employer is unable to temporarily
reassign an employee, this option seems to provide a better balance than is attainable in
a suspension either with or without pay. Balance may be achieved in this model not by an
integration of values but by sharing the burden of non-integration. Neither side is
expected to bear the burden alone. While it may be very difficult to reach a balance, it
is possible to be fair about the "imbalance". The costs of the employer-employee
relationship that result in the problem are restricted to the parties concerned. They are
not passed on to "innocent bystanders", namely, the employee's family.
Suspension with pay is the suspension with full pay and benefits of an employee
suspected of misconduct. The employee is not formally penalized, or at least any monetary
penalty is minimized, during the suspension period. Thus the employee's interests in fair
treatment are preserved.
The difficulty of this model is that in paying the employee, employers may perceive
that they have, in effect, rewarded the employee's misconduct. Consequently, suspension
with pay does not achieve a balance of the interests of the employee with those of the
employer. The employee is not performing his/her part of the contract, namely to perform
assigned duties, but is nevertheless paid. The lapse of time between allegation and proof
is critical for the employer: the longer the period of time, the more the employer has to
pay, and therefore the greater the penalty to the employer.
The source of delays in due process is critical in assessing the fairness of individual
cases when suspensions are with pay. Where the source of the delay is the employer, one
may argue that if this increases the employer's costs then this is fair game as the
employer has control over the process. The very opposite argument may, however, be made
where the source of delay is some party other than the employer, such as courts and
tribunals.
Where the source of delay is the employee, or the employee's agent, then any
adjudicator of a grievance would have to look carefully at the motives of the employee. If
the motive was mischievous in the sense that it was designed to increase the employee's
reward for wrongdoing then this should weigh heavily against the employee. Where the
source of delay is a third party, independent of both the employee and the employer, the
penalty increase to the employer is no less real but responsibility cannot be attached to
either the employer or employee. In such a situation an adjudicator may wish to point the
problem out to third parties so that they are aware of the consequences of their actions.
Again, however, it must be noted that employers are not obliged to await the decision of
third parties before proceeding with internal administrative matters.
While none of the models described may achieve the perfect balance, they attempt, some
more successfully than others depending on the circumstances, to treat the interested
parties according to the general principles of justice in a free and democratic society.
It is the extent to which this balance is achieved in decisions regarding suspensions
which in the final instance is of interest to employers and employees alike and can be
expected to serve as a determinant in adjudication or impartial review of suspensions.
Also, the presence of a clearly defined suspension policy, (notwithstanding the model
adopted), its widespread communication among employees, and its standard application by
the employer are important determinants in the perception and ultimate decision regarding
fair treatment.
Cases
Griffiths v T.B.C., P.S.S.R.B. 166-2-7949, Hamilton, 1980, p. 23
McManus v T.B.C., P.S.S.R.B. 1662-2-8048, 8078
Policy, Legislation, and Regulations
1.
The Federal Public Service Personnel Management Manual;
Treasury Board Circular, 330-196 (82/84, Vol. 7)
2.
The Department of National Defence Queen's Regulations and
Orders for the Canadian Armed Forces, (1968) 3 ed.
3.
Civilian Personnel Orders, DND Civilian Personnel
Administration Orders 7.06
4.
Royal Canadian Mounted Police Act, R.S.C. 1970, c.R-54
5.
Police Act of Alberta, R.S.A. 1980, c.P-12
6.
Alberta Regulations, 179/74
7.
British Columbia Police Act, R.S.B.C. 1980, c.331
8.
British Columbia Regulations on Police, 330/75
9.
Manitoba Provincial Police Act, R.S.M. 1978, c.P-150
10.
Manitoba Law Enforcement Review Act, R.S.M. 1983,
c.L-75
11.
New Brunswick Police Act, R.S.N.B. 1977, c.P-9.2
12.
Constabulary Act, 1970 R.S. Nfld., c.58
13.
Newfoundland Regulations, 75/85
14.
Nova Scotia Police Act, R.S.N.S. 1977, c.9
15.
Nova Scotia Regulations, 76-1164
16.
Ontario Police Act, R.S.O. 1980, c.381
17.
Prince Edward Island Police Act, R.S.P.E.I. 1977,
c.P-28
18.
Code of Discipline for the City of Charlottetown Police
Department (1979)
19.
Police Act of Québec, R.S.Q. 1977, c.P-17
20.
Règlement sur la déontologie et la discipline des
membres de la Sûreté du Québec, L.R.Q. c.P-15
21.
Regulation respecting the ethics and discipline of the
policemen of the Communauté urbaine de Montréal, R.S.Q. c.C-37
22.
Loi sur la fonction publique, L.R.Q. 1978, c.F-3
23.
Règlement sur les normes de conduite et de discipline
dans la fonction publique et le releve provisoire des functions, F.3-1 r.14 1979
24.
Saskatchewan Police Act, R.S.S. 1978, c.P-15
25.
Saskatchewan Regulations, 92/81
Other Texts Consulted
1.
Brown, D. and Beatty,D., Canadian Labour Arbitration,
Toronto, Canada Law Book Ltd., 1984.
2.
D'Aoust, C., et al., Les mesures disciplinaires: étude
j'urisprudentielle et doctrinale, Monographie No 13, Montréal École de relations
industrielles Pub., 1982.
3.
Gaines, L. et Ricks, T., Selected Readings on Managing the
Police Organization, Minnessota, West Publishing Comp., 1977.
4.
Gibson, S., Disciplinary Action Resulting in Discharge
from the Public Service of Canada, Library of the Public Service Staff Relations
Board, 1985.
5.
Potts, L., Responsible Police Administration and
Approaches, Alabama, University of Alabama Press, 1984.
6.
Shultz, S., ed., Police Administration and Management,
Minn. West Pub., 1977.
7.
Swanson. C. and Territo. L., Police Administration,
Structure, Processes, Behavior, U.S.A., MacMillan Pub., 1983.
8.
Tansik, D. and Elliott, J., Managing Police Organizations:
Text and Cases, U.S.A., Duxbury Press, 1981.
9.
Taylor, W. and Braswell, M., Issues in Police and Criminal
Psychology, U.S.A.. University Press, 1978.
10.
Thibault. E. et al., Proactive Police Management, New
Jersey. Prentice Hall, 1985.
11.
Police Management Today, Issues and Case Studies,
Practical Management Services. International City Management Association. 1985.