'Mandatory exclusion' breached agreement: Arbitrator
A guilty plea for improperly storing a firearm was enough to deny an Edmonton police office from being considered for a promotion to sergeant.
Constable Sam Najmeddine had worked at the Edmonton Police Service since 2003 in various departments including acting sergeant in three separate divisions.
During the arbitration hearing, Najmeddine testified he was advised on numerous occasions by senior officers to “run the squad as if it were (his) own,” while he worked as acting sergeant.
But in 2012, Najmeddine left his service pistol and Taser inside his locker and it was not fully locked.
Because the gun and Taser could have been accessed by members of the public such as janitors, it was considered not secured.
On April 25, 2013, Najmeddine was charged with improper storage of a firearm, which was a federal statute.
In early 2014, he submitted his name into the promotion process to become a sergeant.
But in May 2014, his trial came up and he pleaded guilty on the advice of his lawyer. He received an absolute discharge, as expected.
In the meantime, Najmeddine had progressed to stage three of the promotion process, but in September, he was advised that his name was being withdrawn due to his guilty conviction.
Around the same time, he was charged under the Police Act with two counts of insubordination and one count of discreditable conduct after an internal investigation around the firearms incident. Najmeddine received 60 hours’ suspension without pay.
In 2015, Najmeddine again entered the promotion process. But on Sept. 2, Inspector Scott Jones advised via letter that his two sets of convictions would exclude him from the promotion process once again.
On Oct. 19, the Edmonton Police Association (EPA) grieved the decision and asked for general damages of $10,000 to be awarded. It argued the stage-one process unfairly excluded officers from proceeding and it was arbitrary and unreasonable because it imposed a five-year ban on officers to be considered, despite the finding of an absolute discharge.
By not allowing an officer to proceed and fully explain a prior conviction, Najmeddine was not given proper consideration, argued the EPA. And by the wording of the collective agreement, which excluded an officer under “a finding of guilt for a criminal (federal) offence,” this would not encompass Najmeddine who pleaded guilty and was not found guilty.
The employer argued that the collective agreement gave it the power to apply certain criteria in the application process.
Arbitrator Leslie Wallace upheld the grievance, and ordered $1,000 in damages.
“(Najmeddine) and the association are entitled to a declaration of the breach. It is declared that the removal of (Najmeddine) from the 2015 promotion process at stage one pursuant to the exclusion policy in appendix A of the 2015 Promotion Process Guide was in violation of article 9 of the collective agreement.”
(Appendix A lists items that “may prevent candidate from continuing in the process” and includes: “Outstanding criminal (federal) charge(s) or a finding of guilt beyond the five-year preclusion timeframe.”)
But when the employer decided to add extra criteria in the appendix, the agreement was breached because “the employer may not adopt a mandatory policy that excludes at stage one of the promotion process certain otherwise-qualifying officers from consideration,” said Wallace.
“The employer would in my view be entirely within its rights to scrutinize candidates on these issues any time after stage one, as the process is presently constructed. It is, however, the mandatory exclusion of certain candidates at a stage that is not intended to examine the factor used to justify exclusion, that constitutes the violation of the collective agreement,” said Wallace.
Reference: The City of Edmonton and Edmonton Police Association. Leslie Wallace — arbitrator. Dana Adams, Geoff Hope for the employer. Patrick Nugent for the employee. Nov. 14, 2017.
