Progressive Discipline

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Progressive Discipline

• Inspector Brad Doucette

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Discipline EPS Policy 12-A-1

• Discipline is the practice by which the employer
  ensures that each employee's conduct conforms to
  standards set by the employer.  These standards
  are generally found in written orders that
  include the Policy and Procedure manual and
  Service Directives.  The standards include verbal
  instructions given by persons in authority.

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Policy 12-A-1 (continued)

• Discipline is defined as mental or moral training
  which achieves accepted organizational behaviour
• A supervisor provides training essential to the
  development of discipline by carefully selected
  words and actions supportive of, and consistent
  with, expected organizational behaviour
• Communication is the supervisor's most effective
  tool to deliver this disciplinary training

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Policy 12-A-1 (continued)

• The practice of discipline has two forms, namely
  'preventive' discipline and 'corrective'
  discipline
• Preventive discipline is the practice of
  providing a training and guidance environment in
  which members respect the rules and carry out
  their functions while abiding by accepted codes
  of behaviour, not through fear of punishment but
  because they believe in doing things the right way

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Policy 12-A-1 (continued)

• Corrective discipline refers to sanctions applied
  in specific instances when, through the failure
  of preventive discipline, a member defaults and
  does not deliver acceptable performance
• These sanctions are applied to change the
  member's actions, attitude and conduct to
  acceptable behaviour
•  In applying corrective discipline, the
  supervisor must ensure that

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Policy 12-A-1 (continued)

• by communicating the rules and making known the
  manner of enforcement, members have clear warning
  that a default will lead to a given degree of
  sanction
• Sanctions in the practice of corrective
  discipline should be applied in steps of
  progressive severity for subsequent similar
  misconducts
• Example It is appropriate to apply coaching and
  counseling when misconduct results from ignorance
  of what is required, is of a minor nature and
  lacks the element of neglect or intent.  If the
  misconduct is repeated, the supervisor is
  expected to apply the next level - reporting to
  higher authority

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Progressive Discipline - General

• Has also been defined as
• In a system of progressive discipline, an
  employer applies increasingly serious sanctions
  to employee misconduct in an effort to correct
  the employee's behaviour. Nevertheless, even in
  such a system, the particular misconduct of an
  employee may be so serious that dismissal is
  warranted, despite the absence of prior warnings
  or disciplinary action.
• Galassi v. Hamilton (City) Police Service,
  2005 O.J. No. 2301.

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Statutory Considerations

• The following are some of the key statutes
  regarding EPS employee discipline
• The Police Act and Police Service Regulation,
• The Police Officers Collective Bargaining Act,
• The Occupational Health and Safety Act,
• The Freedom of Information and Protection of
  Privacy Act and
• The Human Rights, Citizenship and
  Multiculturalism Act.

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Principles of Police Discipline

• All Serious and Criminal Matters
• MUST be reported to the Chief
• The Chief must investigate all allegations of
  criminal activity or Police Act misconduct
• Statutes provide the mandated procedure for
  discipline to police officers

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Police Officer Discipline - Types of Misconduct

• Police Act misconducts
• Categories
• (1) breach of confidence,
• (2) consumption or use of liquor or drugs in a
  manner that is prejudicial to duty,
• (3) corrupt practice,
• (4) deceit,
• (5) discreditable conduct,
• (6) improper use of firearms,
• (7) insubordination,
• (8) neglect of duty, and
• (9) unlawful or unnecessary exercise of authority
  

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Police Officer Discipline - Response

• Appropriate response governed by policy and
  statute.
• Legislated scope of penalties
• (1) official warning,
• (2) a reprimand,
• (3) forfeiture of hours of work accumulated
  through overtime, not to exceed 40 hours,
• (4) suspension from duty without pay for a period
  not to exceed 80 hours of work,
• (5) reduction of seniority within a rank,
• (6) reduction in rank, and
• (7) dismissal from the police service

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L.E.R.B. - AMERY Decision

• Disciplinary Objectives
• Principle purpose of police discipline is to
  advance the organizational objective of effective
  and efficient police services to the community
• A fair and just sanction in the circumstances is
  the goal. The public interest must be considered
  in those cases where it is engaged
• In cases where organizational or administrative
  factors have played a significant role in
  contributing to the misconduct that contribution
  must be considered. In those instances
  organizational policy or procedure should take
  priority for correction. Any individual
  discipline imposed in such circumstances must
  consider the overall context

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Disciplinary Objectives (continued)

• A remedial approach which seeks to correct and
  educate, rather than to punish, should be
  considered as a priority in those circumstances
  where it is appropriate. In the Alberta context
  Regulation 17(3) promotes the use of special
  training or professional counselling. The
  constructive use of this option, in some
  circumstances, may work to achieve this goal

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Disciplinary Objectives (continued)

• Both aggravating and mitigating factors should be
  considered in determining a just sanction or
  punishment
• Deterrence of other police officers and
  maintenance of public respect for the police are
  legitimate goals in the context of police
  discipline
• Consistency in disciplinary sanctions should be
  strived for. Like instances of misconduct should
  attract like sanctions

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Aggravating and Mitigating Factors

• Previous good record of the officer
• Long service of the officer
• Whether or not the misconduct was an isolated
  incident in the employment history of the officer
  
• The existence or absence of provocation
• Whether or not the misconduct was premeditated or
  was done on the spur of the moment being
  aberrational in nature
• Whether the imposition of a particular penalty
  will create a special economic hardship for an
  officer in light of his/her particular
  circumstances
• Evidence that the rules or internal policies of
  the police service, (written or unwritten) have
  not been uniformly enforced or applied, thus
  constituting a form of discrimination

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Aggravating and Mitigating Factors

• Evidence indicating that a police officer
  misunderstood the nature or intent of a given
  order or directive and as a result disobeyed it
• The seriousness of the misconduct. In
  circumstances involving a member of the public
  the impact or consequence to that person, or
  persons
• Officer cooperation, frankness, and overall
  attitude
• Circumstances of mental or emotional stress or a
  context of substance addiction or drug
  dependence. In considering such circumstances
  the likelihood of future misconduct arising from
  the same cause or causes is an important factor
• Other mitigating or aggravating factors unique to
  the personal circumstances of the officer or the
  misconduct involved

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Police Act Chiefs Responsibilities

• Each complaint must be classified as a criminal
  complaint, a complaint of conduct (referencing an
  individual members conduct) or a complaint of
  service (policy and/or services provided by the
  EPS)
• The Chief has delegated the classification
  decision to the Staff Sergeant i/c Intake
  Investigations Section

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Police Act Chiefs Responsibilities

• If, after causing a criminal complaint about a
  member to be investigated, the Chief believes
  that it may constitute a criminal or provincial
  offence, the Chief shall refer the matter to the
  Crown
• Once the Crown review is complete, the Chief may
  order a PSR investigation
• At the conclusion of the service investigation
  the Chief will determine if the actions of the
  police officer meet the threshold to send the
  matter to a disciplinary hearing
• The L.E.R.B. clarified the legal threshold in the
  UNRAU decision

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L.E.R.B. - UNRAU

• To properly assess whether to proceed to a
  hearing it is important that the initial
  determination be made with the benefit of
  reviewing all of the evidence, not only the
  evidence related to the allegations but also the
  evidence of those responding to the allegations.
• If, on conclusion of that assessment, there is a
  reasonable prospect of establishing the facts
  necessary to obtain a conviction on some type of
  disciplinary charge then the matter should
  proceed to a hearing so that the adjudicator has
  the opportunity to assess the credibility of
  witnesses, assess the admissibility of evidence

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Progressive Discipline - General

• The Chief has directed that the concept of
  Progressive Discipline shall be used in
  determining the following
• Whether a matter will be forwarded to a formal
  service investigation or handled through an
  alternative dispute resolution process such as a
  supervisory review
• Whether a member will be issued an Official
  Warning or sent to a Disciplinary Hearing
• The appropriate sentence at the conclusion of a
  Disciplinary Hearing

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Application

• Alternate Dispute Resolution vs. Disciplinary
  Hearing
• Amery Principles
• Aggravating and Mitigating Factors
• Previous good record of the officer
• Long service of the officer
• Whether or not the misconduct was an isolated
  incident in the employment history of the officer
  
• The existence or absence of provocation
• Whether or not the misconduct was premeditated or
  was done on the spur of the moment being
  aberrational in nature
• Whether the imposition of a particular penalty
  will create a special economic hardship for an
  officer in light of his/her particular
  circumstances
• Evidence that the rules or internal policies of
  the police service, (written or unwritten) have
  not been uniformly enforced or applied, thus
  constituting a form of discrimination

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Progressive Discipline - General

• After applying the AMERY principles to the
  matter, if the Chief believes that the
  contravention is not of a serious nature, he may
  dispose of it without a hearing by either
  dismissing it or issuing the member an OFFICIAL
  WARNING (s. 45(4)) which will be placed on the
  members Disciplinary Record for up to three
  years.

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Police Act Chiefs Responsibilities

• If the Chief sends the matter to a disciplinary
  hearing, the same principles are applied to the
  penalty phase of the hearing
• Requested sanctions are progressively greater,
  based on previous disciplinary history
• Disciplinary history does not have to be
  identical charge to request higher sanction

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Conclusion

• Once the complaint has been classified, the
  progressive discipline principles (as defined in
  the L.E.R.B. Amery decision) are applied to each
  step of the process

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QUESTIONS?