Arbitrator overturns termination, substitutes 1-year suspension

Peace officer sent dirty joke email to wrong person, then entered office without permission and photographed sensitive document

A Calgary peace officer’s office snooping and an explicit email sent to the wrong person deserved a one-year suspension but not dismissal, an arbitrator has ruled.

David Messenger was a peace officer for Calgary Community Standards, a municipal department responsible for enforcing municipal by-laws and some provincial laws. As a peace officer, Messenger’s role was to enforce by-laws and legislation relating to pets and animals, environmental protection, gaming and liquor, smoking, and traffic.

Calgary’s peace officer program included policies and procedures that required a certain level of conduct. The policies stated that “individuals having peace officer status will conduct themselves in a manner reflective of this responsible position in society.” As such, the hiring process included background checks and individuals had to apply to the province for a peace officer appointment before being employed with the city.

Before becoming a peace officer, Messenger was a police officer in the United Kingdom for 23 years. He came to Canada in 2007 and one year later, began his peace officer position in Calgary. When he started his employment, he was trained on the policies and was aware of the standard of conduct and the importance of integrity.

In late 2015, Messenger's wife developed a serious medical condition and his son was in a serious accident. Messenger helped take care of his son’s three young children so his daughter-in-law could spend more time with her husband, but his wife couldn’t provide much help due to her illness.

By February 2016, Messenger’s son was recovering, but Messenger learned his mother back in the United Kingdom had fallen seriously ill. His wife’s mother had open-heart surgery as well, and the family was under a lot of stress.

Unfortunate email incident

Messenger was friends with two other Calgary peace officers — referred to as AB and CD in the arbitration — and they often joked around and teased each other. On Feb. 14, 2016, Messenger and his two co-workers had been making sexual jokes with each other via text messaging when he and AB had to visit a residence with a difficult dog owner. Before they left, Messenger climbed into the truck to review the file while AB went to the washroom. He saw on the truck’s computer screen that AB and CD had been messaging each other, so he decided to play a joke by sending CD an email from AB’s computer.

Messenger composed an email making a sexual joke and a homosexual reference, but when he entered the recipient, the auto-fill feature entered the name of a female supervisor, to whom the email went instead of CD. When AB returned to the truck, Messenger said nothing about the email and was unaware it had gone to the wrong person.

When the supervisor read the email, she forwarded it to the inspector in charge of Messenger’s office. The inspector sent a stern message to AB and Messenger ordering him to report to his office to discuss the matter on Feb. 23. AB agreed to attend but said he was “totally blindsided by it.”

Two days before the meeting with the inspector, Messenger was reviewing files on aggressive animal reports and brought them back to the office around noon. Another peace officer was in the office common area and mentioned the new shift schedule would be released soon — Messenger had been worried about it because he couldn’t deal with a schedule change due to his wife’s medical appointments and taking care of his grandchildren.

Normally, the files he had reviewed would be placed on the desk of the sergeant in charge of them, but the sergeant had recently been appointed acting sergeant-in-charge and had been moved to an office. It was the weekend, so the sergeant wasn’t there. Messenger went down the hall towards the sergeant’s office and noticed the door was ajar, though it was supposed to be locked. Messenger went inside to place the files on the sergeant’s desk and noticed a document that looked like the proposed schedule.

Messenger looked at the document and, since he wanted as much advance notice as possible of any schedule changes, he brought the document back to the common area and told the other peace officer he was going to make a copy of it. The other peace officer said that wasn’t a good idea, but Messenger took a photograph of it and returned it to the sergeant’s office.

Security concerns raised

The next day, Messenger emailed the inspector and requested he remain on the same shift rotation because of his wife’s appointments and his childcare demands. He also expressed his concerns to the acting sergeant and told her the other officer who had been in the common area on the weekend had told him about the proposed schedule. When the acting sergeant asked the other officer how she had known about the proposed schedule, the officer explained that Messenger had gone into her office and copied the schedule. It also came to light that Messenger had shared the photograph of the draft schedule with a few co-workers.

At the meeting with the inspector, AB explained he didn’t send the email and Messenger admitted he had accidentally sent it to the supervisor. A formal investigation was launched and Messenger said it meant to be “light-hearted banter between colleagues.” He apologized and said he was normally serious and professional on the job.

The city also investigated the incident concerning the proposed schedule and suspended Messenger with pay pending its completion. Messenger acknowledged taking a photograph of the proposed schedule and he was aware that it was common courtesy to not enter the sergeant’s office when she was absent. He also acknowledged that there had been an envelope on the office door and trays in the common area for paperwork.

The city’s corporate security team also interviewed Messenger, and he told them he didn’t remember if he photographed the schedule while still in the office or what the other officer had said to him. However, he later testified he recalled both clearly.

The city determined that both the email incident and the schedule incident were serious in nature. On April 7, Messenger’s employment was terminated for violating the city’s use of technology policy with the email and the respectful workplace policy with the schedule incident. Both incidents ruined the “trust relationship,” the city said.

The union grieved the termination, arguing the email wasn’t serious enough to justify serious discipline, Messenger went into the office for a work-related reason, he only looked at the proposed schedule when he noticed it, he had a clean disciplinary record, and his difficult personal circumstances should be taken into account.

The arbitrator found that while Messenger acknowledged sending the email was “a stupid thing to do” and he often joked with his co-workers, the email itself was offensive, contrary to the city’s technology policy, and reckless by sending it to the wrong person. However, it was an accident and Messenger apologized for it. On its own, the email would warrant a “suspension of moderate length,” the arbitrator said.

However, the arbitrator also found Messenger’s claims regarding the proposed schedule weren’t credible. It was clear he knew he shouldn’t have entered the office and there were other places to put the aggression files, and his memory of when he took the photograph changed. The arbitrator found it was more likely Messenger entered the office because he was concerned about the schedule change and wanted to look for it. This was a serious act of misconduct that called into question Messenger’s integrity — an essential and fundamental requirement for a peace officer — that was compounded by his attempts to divert responsibility and the fact he shared the photograph with others, said the arbitrator.

The arbitrator took into account Messenger’s eight years of discipline-free service and the fact the city didn’t apply progressive discipline by giving him a chance to improve his conduct, as well as Messenger’s state of mind over how the potential schedule changes could impact his already-stressful personal life. Given these factors, the arbitrator determined the trust relationship had not been irreparably damaged and termination was an excessive response.

The arbitrator determined a one-year suspension was sufficient to demonstrate the seriousness of Messenger’s misconduct and overturned the termination. However, given the “complexity of the peace officer appointment process,” he reserved judgment on reinstatement and damages.

For more information see:

• Calgary (City) and CUPE, Local 38 (Messenger), Re, 2018 CarswellAlta 1457 (Alta. Arb.).

Latest stories