Hearing Reveals Murdock Was On Probation Prior To Dismissal - Motion Made To Toss Appeal Out
By Robert Thomas
On May 22, 2019 former Constable Alan Murdock of the Moose Jaw Police Service (MJPS) voluntarily agreed to be placed on probation for a very serious matter and 28 days later Cst Murdock was dismissed from the MJPS allegedly for further misconduct.
That much is clear from a public hearing on Tuesday morning.
What was not revealed is exactly what the former MJPS constable agreed to go on probation for and what the allegation or allegations were which lead to his dismissal.
The 58 minute public hearing, held by tele-conference due to COVID - 19 pandemic precautions, had lawyer Destiny Gibney arguing hearing officer Jay Watson lacked jurisdiction because of how the Police Act treated probationary officers.
Gibney also was set to introduce an amendment to the allegations Murdock was facing. An amendment which would have made public what the former constable allegedly did leading to his termination.
But after verbal arguments from both Gibney and Murdock hearing officer Watson reserved decision on both matters.
Jurisdiction Issue Arguments
Speaking on the jurisdiction issue Watson said he had trouble with determining whether or not Murdock was on probation or a probationary officer. And questioned if there should not be a distinction between new hires and long serving officers on probation.
“I am having trouble with whether or not Mr Murdock is a probationary member…the problem I have is not I …not sure he is a member on probation but not a probationary member,” Watson said.
Murdock was a member of MJPS for almost 30 years before his dismissal.
Under Section 67 of the Police Act probationary members may be dismissed without reason if they are seen as unsuitable during their probationary period.
“For any reason whatsoever whether it be just cause or not (a probationary member can be dismissed)…I am not sure he (Murdock) is a probationary member,” he said.
Gibney argued since Murdock was on probation at the time of his dismissal so he was in fact a probationary member.
Gibney said despite a precendent setting previous hearing decision that decision should have no bearing in the Murdock matter.
She pointed out sections of the Act had been changed to clarify what actions could be taken against an officer on probation and as such they, including Murdock, have no right to appeal.
“It made it very clear probationary members under Section 60 of the Act have no right to appeal.”
Watson questioned whether there should not be a distinction for new recruits and members of long standing.
Gibney challenged the statement Murdock had simply been dismissed because of a single allegation alone but there were strong reasons for doing so.
“They still are not dismissed for no reason…the Chief has to have made that decision while they were a probationary member,” she said, adding the Chief of Police must make his decision based upon investigation of the allegations.
“If he (Chief of Police) has not done so he is guilty of neglect of duty.”
Gibney asked Watson not to stray outside the Act and utilize common law decisions to make his jurisdictional decision. She also admitted this type of dismissal of an appeal had never been seen before and Watson's ultimate decision would be precedent setting.
Gibney argued since Murdock had agreed to voluntary probation prior to his later alleged actions he could be dismissed without recourse.
“If you violate probation there are consequences…if you are on probation at work you get fired.”
Gibney said the Act, although not specifically dealing with a long term member on probation, had sufficient intent and definition for Watson to decide he had no authority to hear Murdock's appeal.
She said the term member is defined in the Act and should apply equally to all police members and given probationary is not defined exclusively to a new member then it applies to all members. When tied to the specific sections they are listed within the Act she said the intent became clearer that members on probation had no right to appeal.
Watson responded that by doing what Gibney asked removed any right to appeal for long time police force members.
“There just have to be allegations and they lose the right to appeal,” Watson said questioning whether there is not a clear distinction when it came to new versus long time members.
Gibney responded Chief Rick Bourassa had done his due diligence in Murdock's dismissal.
She said the Act does not simply allow the Chief to summarily dismiss an officer on probation without first investigating the allegations.
“The Chief is under duty to have it investigated,” she said.
Watson replied the argument being made for dismissal of the appeal was if an officer is on probation they lose the right to a hearing and an appeal simply on the basis of an allegation.
“Does that seem fair?” he asked.
“Everyone agrees they have done something wrong and they agree (they did)…they have no right to test these grounds, they have no right to appeal and they are gone,” Watson reasoned stating his thoughts on Gibney's argument for a jurisdictional dismissal.
Gibney said “we have provided you (Watson) with evidence there is misconduct.”
“Not proven,” replied Watson.
Gibney said the lone prior decision seemingly granting Watson the authority and jurisdiction to hear Murdock's appeal had never been challenged before.
“There has been no further determination after that…it has been taken at face value and hasn't been re-visited and reviewed,” she said.
Representing himself Murdock started out by requesting who was with Gibney but that was quickly ruled irrelevant by Watson as it was a public hearing.
Murdock argued for Watson to set precedent and allow his appeal to continue.
“It has never been dealt with before…I cannot find anything remotely close to my decision,” Murdock stated.
He argued there was a very clear distinction between a new probationary member and a long time member on probation.
“The fact boils down to…there is a distinction between…there is a very clear distinction.”
“I agreed to disciplinary action on May 22nd I did not agree to dismissal 28 days later,” Murdock said.
He stated the brief seeking to jurisdictionally dismiss his appeal was full of ambiguities which in fact favoured his appeal.
“The wording alone in her own brief there is enough ambiguity to make your own determination, set precedent and allow the appeal to go forward.”
He questioned the validity of his dismissal.
“How unfair with only one allegation and a dismissal,” Murdock said going on to state when he signed his probationary agreement he had only worked seven shifts in the 28 days until his termination.
“I did not breach any probationary order in that time span…it’s grossly, grossly unfair.”
After some thought Watson chose to reserve his decision on whether he had jurisdiction to hear Murdock’s appeal.
Amendment To The Allegation
Regarding publicly introducing the amended allegation against him Murdock argued that it should wait until after the jurisdiction decision was rendered.
“I’m opposed to dealing with the amendment during this phone call…(we can) deal with your (Gibney’s) amendment once you (Watson) make your decision,” he argued.
Gibney rebutted Murdock's argument that being an officer on probation could not mean dismissal if further actions occured.
“What is the point to have probation in there if it doesn't allow you to do something?” she asked. “Probation is meant to provide you with more serious consequences.”
Gibney said if Murdock was not prepared to present his side of the amended allegation she could provide her side and Murdock could respond later. She said it would speed the matter up and Murdock had complained in the past about the length of time the appeal was taking.
Murdock opposed dealing with the amended allegation because he had only prepared for the jurisdictional argument and not the amended allegation.
Regarding the time his appeal was taking Murdoch said it already had been nine months and it did not matter if it took another nine months to finish it.
In the end Watson reserved his decision on both matters until the next public hearing date on April 21st.