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HomeMy WebLinkAbout1992-0160.Gardiner.94-03-15~,, ,r.: .-, ....... ,;~..-- . ( ' ?, ' :";,:"~.~:'i ' :~ ONTARIO ''" EMPLOYL~SDELA COURONNE ... ~.';~ ;- CRQWN EMPLQYEES DE L'ONTARIO 180 DUNDAS STREET WEST, SUITE 2100 TOt~ONTO, ONTARIO. M5G lZ8 TELEPHONEIT~L~'PHONE I416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100 TORONTO (ONTARIO). MSG 1Z8 FACSIMILE/T~-L£COP/E .' (416; 326- 1396 160/92 IN THE MATTER OF AN ARBITRATION Under THE 'CROWN EMPLOYEES COLLECTIVE B~RGAINING ACT Befor~ BETWEEN OPSEU (Gardiner) Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: O. Gray vice-chairperson P. Klym Member M. O'ToOle. Member FOR THE I. Anderson GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE J. Ravenscroft (except November 15, 1993) EMPLOYER Grievance Administration Officer Ministry of Correctional Services FOR THE S. Patterson (November 15~ 1993) EMPLOYER Counsel Legal Services Branch Management Board Secretariat HE~RIN~ March 2, 1993 May 10, 14., 18, 1993 November 15, 1993 AWARD The Ministry of Correctional Services employed William Gardiner as a- Correctional Officer at its Hamilton-Wentworth Detention Centre ("HWDC") from April 1982 until January 8, 1992. It dismissed him that day~ He grieved. ' Our hearing of that grievance occupied 5 days commencing in March and ending in November 1993. On December 23, 1993 we released the following interim decision: ' We direct that the ~mployer forthwith reinstate th~ievor to his position as a Correctional Officer II at.the Hamilton-Wentworth D '~en~ion Centre. Our reasons for this direction will be'set out in a decision to be delivered at a later date. This is the promised deCision. The Dismissal Letter. - F. Wayne Morris made the decision to dismiss the grievor. Mr. Morris was then the 'Deputy Superintendent at HWDC. His letter to the grievor of January 8, 1992 ("the dismissal letter'.') announcing that decision said this.: A meeting was held in the Boardroom of the Hamilton-Wentworth Detention Centre on January 8, 1992 at 08:00 hours to discuss the allegation: "That on November 29,-1991 you brought the Ministry of Correctional Services and the title of Correctional Officer into disrepute, by the commission 'of a serious criminal offence." At this meeting were yourself; Mr. P. LaCourse, your employee representative; Mr. G. Hogarth, Senior Assistant Superintendent Administration/Services; and myself. Information was p~esented to support the allegation .and you were given the opportunity to present information to either refute the allegation or mitigate your actions. - After reviewing the information presented, I find the allegations substantiated. It is the responsibility of the Ministry of Correctional Services to ensure that the Officers in its employ maintain a high standard of conduct. Any behaviour which ' jeopardizes or gives the perception that a Correctional Officer has not maintained that standard is inexcusable. You have failed to meet this requirement and your actions are incompatible with the position of a peace officer. A review of fries indicates that this is not the frrst' time you have committed such actions. Consequently, I have decided that you are hereby dismissed for cause in accordance with Section 22(3) of the Public Service Act' and the delegated authority invested in me by the Deputy Minister. This' dismissal is effective immediately this date, January 8, 1992. ·You 'are hereby advised that you 'are entitled to.frie a grievance under conditions described in Section 27.8.2 of theCollective Agreement. ..4. 1'he Pre-Dismissal Interviews On November 29, 1991, Mr. Gardifier was charged with "resist arrest." He promptly advised his superiors of the charge and his intention to plead not guilty. SeVeral days later, the police charged the grievor with theft under $1000.00 and assault with intent to resist arrest. He also reported those charges. The initial and subsequent charges were all based on allegations by two investigators then employed by the T. Eat0n Company i,~mited'at its store in the Burlington Mall. Their ellegations related to the grievor's off-duty conduct inside and outside that' store on November 29, 1991. Those are the allegations referred to in the dismissal letter. ~ The employer suspended the grievor with pay~ effective .December 16, 1991, pending'an investigation into what it told the grievor Was' 'an nllegation of serious criminal charges in the community." Mr. Morris interviewed the two Eaton's investigators on January 3, 1992. They told him that they had seen Mr. Gardiner take something from the Eaton's store without paying for it. They said that when they followed him out of the store, he resisted arrest by running to his truck, locking its doors and driving it away after being told he was under arrest and asked to step out of his truck. They also said that in the course of that escape, Mr. Gardiner had acted in an assaultive manner by driving his truck toward one of them, so that she had to move out of the way. · Mr. Morris then advised the gri.evor by letter that a meeting .would be held on January 8, 1992 to discuss the allegation he later quoted in the opening paragraph of the dismissal letter. Mr. Gardiner attended the meeting with a shop steward. Mr. Morris told the grievor that he had been 'made aware of the natUre of the charges against him. He testified that he asked the griev/o~'ff_he Was willing to provide additional information to "explain his actions or mitigate his behaviOur~', and' also asked "ffhe was denying it." He said that the griev°r described the status of his trial date, but did not say Whether he denied the charges. He added that the union representative who accomp _anied the grievor took the position that it was none of the employer's business what the grievor had done away from the workplace~ In this regard, the union representative referred an earlier decision Of the Grievance Settlement Board which had reinstated Mr. Gardiner after an earlier dismissal for off- duty misconduct. 'The Previous Dismissal and Reinstatement The employer had dismissed the gnevor on July 31, 1989, a shOrt while after'a criminal cou~t~ found him guilty of the theft (on February 17, 1988) of a videotape from a Sears store in Burlington. He grieved that dismissal. On August 10, 1990, another panel of this Board unanimously directed that the grievor be reinstated. The reasons of the panel members were released on February 5, 1991: Gardiner, 1113/89 (Fisher) CGardiner #1"). It will be helpful to set out substantial portions of those reasons at this point in the narrative. Havir/g regard to the evidence before them, including evidence about the employer's response to other employees' off-duty cOnduct, the majority.found that the grievor should not h~ave received any discipline as a result of his ha~ng st01en the video tape: - Mr. Da]gleish, the Deputy Superintendent of the Hamilton Wentworth Detention Centre testified that conviction of any criminal offence was sufficient grounds in itself for a Correctional Officer to be discharged. How,ever, the union led evidence of other Ministry staffwho had been convicted of criminal offenses,tincluding impaired driving .and theft, who not only were not dischaiged but infli-/my occasions were not even dis~ciplined. Mr. Benedict, on behalf of the Ministry, caffdidly admitted ~that termination for this single offence of theft only was not appropriate. The grievor's actions were clearly off-duty conduct, and--therefore before the emPloy.er can impose any discipline for~such an occurrence, it must show that in some way its legitimate employer'sinterests are affected by the conviction. The law is neatly summarized in_ the following excerpt from Re Emergency Health Services Commission and CUPE, Local 373, 35 L.A.C. (3d) 400 at pp 407. 409: While the questions se.t out above are to be generally applied in respect of cases involving employer discipline, the con_duct which provokes, an employer's' action in · most cases arises from misconduct in or around the work place~ 'It is fair to assert that an employee's personaltife is his own and. generally speaking, what an employe, e may do on his own time away from the wolk place is his own business and of no' concern to an employer. -- ': While that may.be the general proposition of arbitral jurisprudence; there are clearly exceptions, to this rule. For at least 35. years in Canada, arbitrators have considered the right of an employer to impose conduct: see Re Beatty Bros., Ltd. and U:S~ W., Loc. 3789 (1953), 4 L~C~' 1477 (Fuller). In Re Air Canada and I.A.M., Lodge 148 (1973), 5 L.A~C. (2d) 7 (Andrews)i. the employer treated the grievois conviction for possession Of marijuana as 'a culminating incident~ justifying discharge. In Re Air Canada~ supra, the arbitrator referred to two other authorities, each. dealing with employers who 'had responded to off-duty misconduct by employees: Re Dorr-Oliver-Long Ltd. and U.S.W., Local 4697 (i973), 3 L.A_C. (2d) 193 (O'Shea), and ReMillhaven Fibres Ltd., Millhaven Works, and Oil, Chemical & Atomic Workers Int'l. Union, Local 9.670 (1967), l(A)-Union- Management Arbitration Cases 328 (Anderson). The following passage is taken .from those awards (5'L.A.C. (2d) at p..8): ·.. if the discharge is to be sustained on the basis of a justifiable reason arising out.of conduct away from the place o_f work, there is an onus on the Company to show that: (1) the conduct of the grievor harms the Company's reputation or product -5- (2) the gnevor's behaviour ~enders the employee unable to perform his duties satisfactorily (3) the grievor's behaViour leads to refusal, reluctancb or inability of the other employees to work with him (4) the grievor has been guilty of a serious breach- of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees (5) places difficulty in the way of the Company properly carrying Out its function of efficiently managing its works, and efficiently directing its working forces. Another approach taken'when considering/the ability of an employer to discipline an employee for off-duty misconduct was considered in Re U.A.W., Loc. 195 and HurOn Steel 'Products Co. Ltd. (1964), 15 L.A.C. 288 (Reville). The following statement at p. 289 is useful: It has been held in many arbitration cases that under normal circumstances an employer is only properly concerned with an employee's due and faithful observance of his duties on the job. However, no hard and fast rule~can be laid down, and in each case ~he determination of three questions of fact will determine the issue. These are: (1) Was the employee's conduct sufficiently injurious to the interests of the employer? (2) Did the employee act in a manner incompatible with the due and faithful discharge of his duty? (3) Did the employee do anything prejudicial or likely to be prejudicial t0 the reputation of the employer? .- If one or more of the above questions must be answered in the affirmative on all the evidence, then the company is properly concerned with the employee's conduct regardless of whether it occurred on or off the company property or in or out of working hours, and depending on the gravity of that conduct, the company-will be justified in taking appropriate disciplinary action. Arbitrators'appear to be consistent in the approach that while the 'onus rests with the employer, it need not provide evidence of an affirmative answer to each of the. questions posed either in Re Air Canada, supra or Huron Steel Products. Depending on the degree of impact, any one of the factors set out above may, in the appropriate circumstances, warrant discipline or discharge of an employee: see Re Government of Province of British Columbia and B.'C. G.E. U. (1984), 15 L.A.C. (3d) 329 (Black). These criteria have been accepted in previous GSB cases, notably Gutierrez 419/80 (Roberts). :6- Applying the facts in the present case, we come to the'following conclusion~: 1. No specific evidence was led as to how this conviction would harm the employer's reputation, rather the Ministry simply asks the Board to conclude that either the public or the inmates would think less of the Minist.ry if they were.to continue to employ or fail to.discipline the gr~evor because he was convicted of a criminal offence. However, in light of the clear evidence that the Ministry has not only continued to employ other Correctional Officers' who have been convicted of criminal offenses, but als0 not subjected those Correctional Officers to any discipline whatsoever, it shows that the employer's reputation would 'not be damaged by re-employing the grievor. The words of arbitrator R. F. Ferguson in Re Cape Breton County Correctional Centce and Canadian Union of Public Employees, Local 1146, 19 LAC (2d) 825 at page 829 ~apply well to this case: I further cannot see how management's repum injured ff the grievor joins ' other guards..with criminal records. g. Similarly there was no evidence which would lead us to believe that this conviction would prevent the grievor from carrying out his duties satisfactorily, at least to no more a degree than other Correctional Officers .with criminal recordS. It is not realistic to refer to a conviction of theft under.$1,O00. O0 as a "Serious criminal offence" as was done in the grievor's termination letter in that, compared to other criminal offenses, it is not a serious offence. Moreover, the grievor does not in the course of his duties have any special care or control over monies or Ministry property. In essence the offence is not related to the grievor's duties to a significant degree. This case is therefore unlike Re Emergency Health Services Commission supra where an ambulance attendant was convicted of an off-duty sexual assault of a 13 year old female~ In that case the offence was closely related to his job duties in that he was required to physically handle people in weak and vulnerable conditions. Nor is it like the case of Re Etobicoke Board of Education and OSSTFDistrict 12 2 L.~C. (3d) 265 (Swan) where a teacher was convicted of conspiracy to commit an indictable offence, namely possession of stolen property with a value of $60,000.00. In that decision it was held that a teacher has a special obligation, 'given the influence teachers have over children, to teach and practice respect of the law. 3. There was no evidence that other employees would not work with the grievor as a result ofhis conviction. ' 4. As stated above, theft of a video tape from a store is not a "seriousbreach of the Criminal Code." One should 'not forget .that the Court considered the offence serious enough only to impose a sentence of a conditional discharge with 12 months probation. 5. There v~as no evidence that the employer Would have any problem properly carrying out its functions if the grievor were not disciplined. We therefore fred that with respect to the first ground referred to in the termination letter, the grievor should not have received any discipline. The majority in ~Gardiner #1 agreed that another aspect of~the conduct for which the grievor had been dismissed was'worthy of some discipline: II. GROUND TWO MISUSE OF HISPOSITION The grievor was at pains to tell both'the Sears security staff and P.C. L~e about the fact. that he was a Correctional Officer-involved in-the observance of an ex-inmate who was prObably 'involved in the commission of an offence. It is unclear from' the evidence whether or not he was doing this in order to create an alibi,-which would explain his "inadvertent" placing,of the tape in his pocket, or whether he was .h0ping that the security staff and/or the police would give a brehk to a fellow professional in the law enforcement business. However, no matter which of.~e~e factors was the grievor's motive, he improperly put his employment status in.t~the situation, thereby causing a potential'embarrassment or loss of prestige to his employer. This is an offence which is subject to some discipline,~ however certainly not discharge. Insofar as the.grievor had a clean employment record, and was an employee of significant service, a 'short suspension 'of three days is appropriate. · While agreeing that dismissal had been ·an excessive reaction to the grievor's off- duty conduct, the dissenting Panel member felt that a long suspension would have been an appropriate response to ~the theft: -' In considering all of the evidence, in th~s case I .was able to agree with-my colleagues on this Board that dismissal was not the appropriate penalty. However, it was, and is my view that a very substantial penalty is warranted wheke an employee, who is in a much greater position of trust than most other employees-is found guilty of theft, whether or not the theft is directly related to the employer's business. An application for judicial review of Gardiner #1 was dismissed'some time before the events in' question here. ' Mr. Morris's Decision ~z. Mozzi~ test~ed that be£ore he dec~ded to dismiss the ~evor he reviewed the grievor's' file. The file contemned m~terial re~ating to the theft cliff,es on which the grievor was convicted in July 1989, and to an earlier theft charge which did not go to trial. There was also a memorandum in the file about an anonymous telephone call in 1988 from someone identifying himself only as a police officer from Peel Region, who apparently said that the grievor had ,been apprehended for shoplifting "numerous times." Mr: Morris seems-to have treated all of this, including the memo, as worthy of consideration. He concluded that the grievor was "exhibiting a pattern ofbehaviour" for which the grievor was unwilling to accept responsibility. In addition to the theft, he said,, there was "the more serious charge of action against a fellow peace officer.''~ He felt he had to consider the institution's relationship with other peace, officers', such as the police; He noted that a police sergeant hpd' called the institUtion to let management know about the charges arising out of'the grievor's nileged criminal misbehaviour on November 29, 1991. He regarded this as an instance of outside police services expressing concern ab-out the grievor's behaviour; He counted the 1988 anonymous telePhone call as another .such instance which he should take into account. With reference to the two offences with which the grievor had been .charged at the time 'of the decision .to terminate him, Mr. Morris.said he foUnd .the assault charge more troubling. He explained that "we have t6 have frequent contact With fellow'peace officers and 'have a reasOnable .expectation that we would not be assaulted by one another." Mr. Morris said that he also canvassed other members of management before deciding to dismiss the grievor. He said that Senior Assistant Superintendent Ka]nins had told him that some st~ff had asked what would happen ff they refused to Work With the grievor should he be reinstated. Mr~ Morris did not.say what he was told, ff anything, about what those unnamed staff members had told Mr. Kalnins, if anything, It is not apparent that a store investigator employed by a retail establishment is a "peace officeF' as a matter of law, but this use of the term was not challenged. The functions of the store investigators are certainly analogous to some of the functions of a ~'peace'officer." about the reason fo~'their inquiries..Mr. Kalnins was not called to testify. There was no suggestion that he was unavailable. Mr. Morris testified that the potential influence or impact of a Correctional Officer ("CO") on inmates depends.on his other individual assignment. A CO may be assigned to supervise adults or young offenders. In those assignments they conduct cell searches while inmates are out of their cells. A CO may be ,assigned'to admission and discharge the front door reception area. In admission and~ ~sCharge, CO's handle inmates' or to Personal property, and come into contact with police officers. In the reception area they meet members of the public families of inmates and handle money brought in to add to inmates' accounts. Mr. Morris's decision: to dismiss the grievor was influenced; he said,, by concern that the grievor would not be a suitable role model ff assigned to a Young Offender unit: He tes~ed that CO's are expected to serve as a positive "role model" to inmates, particuiarly young Offenders. 'He expressed the opinion, which he said was based on his experience,, that ff a Correctional Officer is "charged or convicted" of a criminal offence, inmates will lose respect both for that officer and for the position of' Correctional Officer. This would diminish the "positive impact" the officer could be expected to have on an inmate, he said. Asked in chief how C0's would serve as a positive role model, Mr. Morris replied that in their contacts With inmates they are expected to tell the truth, be honest, ~nd look out for the interests of individuals-within bruits estabhshed by the institution. In cross-examination, Mr. Morris acknowledged that a number of factors influence inmates' respect for CO's: maturity, fairness, consistent application of rUles, making appropriate referrals up the chain of command and unbiased conduct of searches and investigations. He also acknowledged that employee preferences are taken into account -10- when determining, who shall be assigned to Young Offender Units. He conceded that the grievor had never requested assignment to a Young Offender Unit and, to his knowledge, had never been assigned to such a unit. The grievor testified that he had no interest in workingin a Young Offender Unit. Mr. Morris testified that he thoUght that if the grievor returned to work,, that would "cause some concern on behalf of inmates." He said that-ff the grievor were reinstated and assigned to an area where something '~nt missing~',inmates and staff might accuse the grievor and 'q~ased on'his explanations at previous disciplines, I 'would find it difficult to believe a lot he said." I-Ie said he did not know Whether he could trust the grievor handling inmate property or receiving cash at the front door. He also said that if an inmate thought a CO assigned to admission and discharge was "untrustworthy", the inmate might refuse to hand over possesSions. When the grievor returned to work at the Hamilton-Wentworth Detention Centre in August or September of 1990 as a result of the decision in Gardiner #1, he was someone who had been convicted of-theft. He wasback .at active Work for at least 15 months before the dismissal in question here. Mr: Morris acknowledged that, so far as 'he knew, there had been no complaint, about'the grievor during that time, either by an inmate or by anyone, else. The evidence before us shows that the grievor's superiors judged his overall job performance to be satisfactory both before his conviction/ dismissal and after his reinstatement in 1990. Another consideration which Mr. Morris said influenced his decision to dismiss the grievor was concern that the grievor had failed to "accept responsi, biliW for his behaviour", had given no explanation of it, had not denied that the "incident" had occurred and had not "mitigated his actions" in any way. He said he did not believe 'that a substantial suspension could "accomplish our objective," because it would only postpone his concerns about the grievor's ability to function in the wOrkplace. He said that ffthe discipline imposed 'on the grievor by the court in. 1989 had not changed his. ways, 'he did not see how a suspension would. More than once during his examination-in-chief, Mr. Morris.said that'the grievor had failed to deny the allegations put to.him in the meeting of January 8, 1992.. This assertion was also made by the Ministry's representative in her opening statement. When counsel for the union put it to Mr. Morris '~. ~f-dross-examination.:..- . that he had · neve~ :asked the grievor Whether he was denying the allegations, Mr: Morris initially~ replied '~I may. not have. I recall it was a brief conversation. I can't recall the detailed substance of the conversation." When the same suggestion was Put to him agoin only · a few minutes later, his answer was '~I don't think I did,"_.. , The Employer's Response T° Other cOrrectional Officers' Misconduct Mr. Morris' testified that COs have been ·told, in staff training Conducted at Bell Cairns ~and earlier:at Aylme~ Police College, that the ~Ministry expects their Conduct while off-duty to be' "exemPlary'', and that as peace officers they are not to bring disgrace on the institution. He was asked in chief whether he'was aware of other Ministry 'emplOYees, having been' convicted of criminal offences. He said he was, but that his personal experience with criminal charges was limited to case~, involving . alcohol' related driving offences. He said that the distinction between thOse cases and the grievor's case was that with alcohol related driving offences there is a "lack of premeditation," while the grievor's misconduct had been premeditated. In cross-examination, Mr. Morris acknowledged that the inmate population at HWDC included persons convicted of alcohol related driving offences. He agreed that inmates would perceive sexual assault to be more serious offence than "theft under." He was not prepared to say the same about assault causing bodily harm; he thought that the inmate reaction would depend on the circumstances, that there are occasions when the inmate culture considers violence acceptable. He agreed that inmates would likely regard assault With a weapon as more serious than ".theft under." In his testimony in chief,: foll owing an objection to his giving opinion evidence, Mr.. Morris asserted that his testimony about how ip.mates would react toa co'S having been charged or convicted of criminal conduct ~/ag"based on his own personal experience. He was asked in cross-examination for an example of circumstances kn0wp to him-in which inmates, had learned of an officer's having been charged with an offence. In reply, he referred'to K. S., a CO. at Guelph Corrections]. Centre who was .charged with an alcohol related driving offence. He Said there was "muttering" by inmates, bu~ K. S. was~still able to perform his duties~ He did not know whether. K. S. had been disciplined. He said this was the only example he. could recall in which he had experience of inmates reacting to a CO's having been charged .or. convicted of -criminal conduct. The case of W. N. was put to Mr. Morris in cross-exo_mination. W. N. is a CO at HWI)C who engaged in sexual conduct with a female volunteer wo~l~er in the central control station of the institution. It was a serious breach of the institution's security rules for him to.have taken the volunteer into that area for any reason. Mr. Morris acknowledged that he had disciplined W. N. for that conduct. When he determined what discipline to impoSe onW. N., he believed the volunteer's allegation that W. M.'s sexus] advances, which included kissing and touching, had been unwanted. The volunteer had said that she would not press criminal charges.' If she had charged W. N., Mr. Morris said, then he might have delayed his discipline decision. Mr. Morris said that in deciding on a 20 day suspension for W. N'he took into account W. N.'s 12 or 13 years' good service and the fact that 'this was his first-"documented" offence "of this type." The case of K. II. was put to Mr. Morris. K. H. is a CO at I-IWDC who was charged with and convicted of shoplifting in 1991. Mr. Morris acknowledged that he had disciplined K. H.,-that he had only given K. H. a letter of reprimand, and that she had continued toWork at HWDc thereafter without a, ny restriction on the-duties to which she could be assigned. In re-examination, he said that ~a.~deciding not to impose greater discipline on K. H. he took into account the earlier GSB decision with respect to Mr. Gardiner and the 'fact that this was her first offence. The case of R. R. was put to Mr. Morris. Ms. R. was 'an Assistant Office Manager at HWDC who had access to office keys and money, and was able to write cheques against a Ministry account. Mr. Morris acknowledged having .been informed by the Superintendent of HWDC that R. R. hadbeen convicted of theft. In re-examination he said he had no'knowledge whether shewas charged or convicted. . We take this to mean that he had no personal knowledge of what the Superintendent had' told him about Ms. R's conviction. It was put to him in cross-examination that Ms. R. was only given a reprimand. Mr. Morris said he thought that the Superintendent had told him that. He said he was not aware that there had been any change in R. R.'s duties after her Conviction. It was put to 'Mr.' Morris that A. M. was a CO at Guelph who, while off-duty, had held off police with a shotgun, and that A. M. had later been convicted of a weapons office. Mr. Morris acknowledged that after he went to work at Guelph .(which would have been in the mid 1980s) he had been told of an incident before his arrival involving firearms at A. M.'s house, that the incident involved standing off the police and that A. M. had been charged with something. He did not know whether A. M. had been · convicted,, and did notknow whether the Ministry had disciphned him. He knew A. M. was not discharged,', becauSe A. M. was Still working at. Guelph. :When Mr. Morris arrived there. Although he was not asked the' source' of his information about the incident in which 'A. M. stood off police, he did not suggest.that it was. other than completely reliable. A number'of other names ~were put to Mr. Morris, along with allegations that the named individUals were' COs or corrections employ/ees of higher rank.who had been charged with and convicted of particUlar offences andremained employed. In each of these Other cases, Mr.:Morris said he was not aware of the allegations. We have not .-- 'given any weight t° otherwise .unproven allegations of which Mr. Morris disclaimed -': having any. knowledge or information: We reject the union's argument that the .employer has some onus in this proceeding to rebut the particulars of those wholly unsubstantiated allegations as a result of the unpartlcularized fin ding'in Gardiner #1 that "the Ministry has not only continued to employ other Correctional Officers who have been conviCted of criminaloffenses;' but also not Subjected those Correctional Officers to any discipline whatsoever." The .union called'Roger Rolfe.'as a witness. Mr. 'Rolfe is a CO at Toronto West Detention Centre ('~I'WDC")'. He testified that in 1986 he was charged with assaUlt-and ,PossessiOn ora weapon" as a result of a domestic dispute. He spent time in custody, first at T,WDC' and'then .at .another institution. He was convicted on the weapon charge, arid sentenced to two years' probation. He was not disciplined. He continued to work at TWDC as a CO, at aSsignments which later included supervision of Young Offenders. "A"; another CO at TWDC, was charged with .threatening'death and diScharging a firearm, as a result of a domestic incident in 1986. Mr. Rolfe learned of the charges from news reports and, later, from "A" himself. Mr.. Rolfe understands that "A" pleaded guilW to a lesser weapons charge pursuant to a plea bargain, and was sentenced to two years' probation and prohibited from carrying a weapon, ;'A" continues to work at TWDC, and has been assigned to act as an Assistant Staff Training Officer. Mr. Rolfe testified that "B", then a corporal at TWDC, was charged with and convicted of impaired driving in 1986. The ch~ges were common knowledge among COs. It was not "B"s first offence of that kind, and hg~was sentenced to serve time in jail. He served that time on weekends at another institution, and.continued to work at TWDC: his worl/schedule was adjusted to accommodate his weekend incarCerations. "B"-was later.promoted to sergeant. Mr. Rolfe says that because he was a shop steward at the .time, he would have had notice if either "A" or "B" had been Summoned to a disciplinary meeting as a result of their convictions or the charges ag~ainst them. He had no such notice. On that basis, he believes that neither of them was disciplined. He testified that he is not aware that either of them had had any diffculty doing his work or dealing with other CO's as a result of knowledge of his crime. He also stated that hehad had no s/~ch difficulty as a result of his own conviction. Mr. Rolfe testified that F. D. was charged with and convicted of imps_ired driving. Mr. Rolfe thought F. D. was a Superintendent at the time. He'understood that it was not F. D.'s first offence of that kind, because he was sentenced to serve time in jail. Mr. Rolfe heard from other CO's that' F. D. serVed that time at another· institution, and continued to work as a Superintendent thereafter. All of Mr. Rolfe's information about F. D. appears to have been second hand. The case of F. D. was raised with Mr. Morris during his cross-examination. Union counsel then suggested that F. D., had been a Deputy·Superintendent of a correctional institution when convicted. Mr. Morris said he thought F. D. had been convicted of "something like" impaired driving. He was not asked' and did not say'whether F. D. remained employed after his conviction. The Grlevor's Criminal Trial' 'Mr. Gardiner was tried on the 'criminal charges of theft under $1000.00 and assault with intent to resist arrest in criminal:court on July 17, 1992 after he was dismissed and before his grievance against, that ~issal came on for arbitration before us. After hearing the testimony of the two store investigators and of the grievor, 'the trial judge found the grievor not guilty with respect to both charges. Thereafter,. the Ministry persisted in its position that the store investigators' allegations were true and that the grievor.had therefore been dismissed for cause. When the hearing in this matter began, it was the Ministry's position that what had happened at the criminal trial was not a relevant consideration in this proceeding. Its representative.underto0k'to prove that on November 29, 1991 the grievor had taken something from the Eaton's store without, paying for it, that he' had resisted arrest by running to his truck, locking its doors and driving it away after being asked by store security personnel to steP out and' told he was under arrest, and that in the course of that escape he acted in an assaultive manner by driving his truck toward one of the store security persons, so that she had to move out of the way. As we have already noted, the Ministry's representative said these ~llegations had been put to the grievor at 'the meeting of january 8, 1992, and that he had not denied them. She said the. Ministry would argue that dismissal was justified because the grievor's conduct on November 29, 1991 and his previous off-duty conduct was incompatible with his position as a Corrections Officer. She asserted that his 'misconduct on November 29, 1991 had impaired his ability to perform his job in accordance with Ministry goals and expectations, and that the reputation of the Ministry would be seriously harmed if it was seen to condone continuing criminal behaviour bY. employing someone who engaged in such behaviour. TestimOny About The Events of November 29, 1991 It is' common ground that the griev0r was in the Eaton's store at ~the Burlington "Mall on November 29, 1991. Natalie ~Lebrecht was .employed' there as'a store investigator, She noticed the griev0r in the upper lev/el?if the.store. She testified that his behaviour attracted her attention. She said that as he was walking~around the floor he was looking around, ."scanning to see if anybody would see him do what he was about to do." She testifi'ed that based on her experience, she' was "sure". he 'was going. to steal something. She noticed another Eaton's investigator -- Laura Birrell -- and motioned to her. that she was watching the .grievor. Ms, Birr~ll began-watching the grievor too. When he reached the specially food department, Ms. Lebrecht saw him pick uP an.object and Place it in an Eaton's bag he was carrying. She described the object as a "crate-like item the size of a food tray." During her-examinati'on-in-chief, MS. Leb~echt testified that Ms. Birrell w~s "just beside" the gri. 'evor when he allegedly picked up the"crate-like itemf In Cross-examination she said that there were displays all around the grievor at~ that time. In re-examination, she Said she nevertheless had a good view of what transpired: According to Ms. Lebrecht, the grievor then proceeded toward the mall exit, hesitated, andthen- movedbaCk through the store to the parking lot exit-on the lower level: He.paused at the door, then left the store running. Ms. Lebrecht and Ms. Birrell both followed him out. of the store. It was raining outside. Ms. Lebrecht says she and Ms: Birrell ran after him, but did not call out to him before he got into his truck. The truck was backed into a parking space, facing the store. When the two EatOn's employees reached the front of the grievor's'truck he was already in~ it and was locking the door. Ms. Lebrecht testified that Ms. Birrell 'then wentto the driver's side window, which was open about an inch, identified herself as "Eaton's security" and told the grievor he was under arrest. Ms. Lebrecht says she then asked the grievor to step out of his vehicle,-and heard him reply "like hell I will.,' Ms. Birrell next'went to the front of the vehicle. The grievor started his truck and put it into gear. As the truck ~noved forward, Ms. Lebrecht Says she then askedMs. Birrell to step aside to avoid being hit. They then made a note of the truck's licence plajte number, and went into the store to telephone the police. ..~ . Ms.' Lebrecht testified, that when a police officer later called to verify their identification of the grievor, he told them that their suspect was a Correctional .Officer. After this or some other conversation with the police, MS. Lebrecht went to see if she could find another item like the One she thought she had seen the grievor'put in his bag. She could not find another such item, and was unable to say what the item had been.' Ms. Lebrecht said her reaction to learning that the .grievor was a Correctional' Officer was shock that someone in "law enforcement" would have. done what the grievor had done at his trUck. Asked to clarify whether she was referring to his taking goods'or his allegedly assaultive behaviour with his. truck, she said she was not talking about the taking, that '~anybody can make a mistake." She saidher shock related to the griev°r's behaviour with the truck. Ms. Lebrecht acknowledged in cross-examination that at the grievor's Criminal trial she had described the stolen item as a '%eige, wood:like boX.'' She also acknowledged that some of the details of her 'testimony before us, including the allegation that the grievor went first to the mall exit before moving to the parking lot · exit, had not appeared 'either in her contemporaneous notes' or in her testimony at the grievor's criminal trial. The employer did not call Ms. Birrell as a witnesS. 'There was no suggestion that shewas unavailable. The grievor testified that before he drove to the Burlington Mnll on November 29, 1991 he had been-to a Miracle Mart store, where he h{~l"~urchased Some newspapers and two collections of chocolates packaged as Advent calendars. He went to the Mall to have a coffee and read the newspapers. Because it was raining, he put the newspapers into an empty Eatons bag he had in his truck. He said he put theAdvent calendars into the bag with the newspapers because they were all together in a pile on the seat beside him. Once in the building, the grievor decided to have had his coffee in the restaurant on the upper level in the Eaton's store. The grievor testified that after he left the restaurant he stopped in the food department to look 'at a stack of plastic wrapped Advent calendars which were on display there. He wondered whether any of them was different from the one~ he had bought 'earlier. He found that the Advent calendars on display were of the same Sort as the ones he already had in his bag. He also wondered whether the prices were the same. He looked into his bagto see what price was marked on the ones hehad there. He found that there was no price marked on them, just the other store's scanner code label. While he may have piCked' something up to look at it during this process, he says he Would have put it back. He denied putting anything into his bag. The grievor then made his way to the.exit. He was in no hurry to leave. It was raining. When he did go out, he "made a dive for" his truck. He unlocked the door, got in, locked 'the. door, put on his seat belt, pushed in the clutch and. brake pedals and ¸iL started thetruck. In cross-examination he acknowledged that he probably als0 rolled his window down "a crack" because it was'"steamed up inside." As he started forward, he caught a glimpse of someone running in front of his truck and he slammed on brakes. He testified that hemay have said "what the hell" when this happened. After that person passed by the front of his trUck, the grievor engaged the clutch again and drove out of the mall parking lot. He testified that he did not hear anyone-saying '~Eaton's securitf' or "stop" or "you're under arrest", did'not, see anyone speaking to him through the window of his truck, and had not been a~e of being followed out of the / store by anyone. He was aware of 0thers leaving the store or moving in the parking lot, but took them to be other Shoppers. About 10 ,or 15 minutes after leaving the m~l], while still driving'his truck, the gnevor was stopped by a police officer, arrested, questioned and given an appearance notice charging him with "resists arrest." As we have already .noted, the charges of assault with intent to resist arrest and theft under were laid several days later. Reasons For Our Decision That Dismissal Was Not Justified- counsel .f6r the employer argued that the issues to be determined were whether the "faCtual UnderpinningS" had been made out and, if so, what the appropriate penalty, was. He argued that the factual underpinnings had been made out, and that. the appropriate penalty was and is discharge. In. the alternative, he argued that a lengthy suspension was warranted. Counsel for the union, argued that the evidence did not warrant a finding that the grievor had done what he was accused of having done on November 29, 1991. In any event, he submitted, if the grievor did do what he was accused of having done'that was not cause for discharge, particularly in view of the employer's treatment of other employees' misconduct. Healso argued that there Could be no question of a reduced penalty. It was ~]l or nothing, he Said, particularly when the employer's representative2 had said in her opening ~that there was "not 'a 'question. of progressive discipline." In case like this., one might begin by determining whether the grievor was guilty of the misconduct'alleged, leaving the questiQn whether such misconduct justifies discharge or discipline to be decided only ff one fin .d~at the misconduct occurred. One might also begin by first determining whether the alleged misconduct wouldbe cause for. discharge or discipline, leaving the question whether such misconduct had occurred tobe decided only ff one finds that s~ch misconduct would justify discharge or discipline. Here, we took-a mixed approach. Counsel for the emplOYer acknowledged that an allegation of misconduct said to justify an employee's' discharge must be proved (on a balance of probabilities), bY clear and cogent evidence. Even ffwe accept that the grievor's conduct in.the parking lot was as Ms. Lebrecht described it, that and the other evidence together was not sufficiently clear and cogent to satisfy us, on a balance of probabilities, that the grievor stole something from Eaton's on NOVember 29, 1991. ~ On her own evidence, Ms. Lebrecht had deemed the grievor likely to steal before she claims-to have seen him do so:What-she claims, to have seen fulfilled her priOr expectation. Ms. Lebrecht says she saw the grievor pick up a box or crate and put it in' his bag. The suggestion is' that this box or Crate was some item of merchaJudise Eaton's had on sale. Although she had access to the store (and presumably to its' personnel and The representative who acted for the employer on the first fo'ur days'of hearing was not present on' the last day. The counsel who represented the employer on that last day and argued the case for the employer was not present during the first four days of the hearing..These observations are meant to be explanatory, not critical. : . records) in the months thereafter, Ms. Lebrecht could not say-What that item was. This suggests that her. view of the alleged theft was not as clear and unobstructed as she would haveus believe or, perhaps, that she did not attach much importance at the time to the question whether the grievor had actually stolen something. · On Ms. Lebrecht's evidence, Ms. Birrell could have seen the theft as well as Ms. Lebrecht did. The unexplained failure to call Ms.,Birrell suggests that, on balance, her evidence would not have supported Ms. Lebrecht's. ~.~? Ms. Lebrecht acknowledged that her description to us (on March 2~ 1993) of the grievor's conduct on November 29, 1991 included inculpatory details which she had not included in either her contemporaneous notes or her tes~mony at the grievor's criminal trial in July '!992. Although She did not have the same stake as the grievo.~ in these proceedings, Ms. Lebrecht was not an entirely disinterested witness~ Her testimony concerned her performance of a job in Which her powers of observation and credibility as a witness are of no small importance. Once she had been asked to give that testimony, she had a natural, personal interest in having us believe that the grievor had done what she had accused him of in the course of her employment and at the grievor's trial The fact that her recollection appears to be firmer and more detailed in her testimony before us than in her contemporaneous notes or in her earlier testimony suggests the intquence of that personal interest. We were not persuaded that Ms. Lebrecht clearly saw the tnking that she now cloims to have seen in the store. AS a result~ as we have said, we were not satisfied on a balance of probabilities that the grievor stole something from Eaton's on November 29, 1991. Again, we concluded that that was-so whether or not the grievor's conduct in the parking lot was as Ms. Lebrecht described it. On the evidence before us, a finding with respect to the alleged- misconduct in the parking lot would be a closer call than our finding with~respect to the alleged theft. Although a criminal court found the grievor not guilty of that alleged misconduct after a trial on the merits, the union did not argue that 'the criminal court's finding precluded either the employer's seeking or our making a contrary finding in these proceedings. If a finding is necessary in these proceedings, the standard of proof which the employer must meet is not the same as the .~tandard that the Crown had to' meet to secUre a criminal conviction, and' the finding wou~e~.~.,. made: on the evidence befor'e us, not the evidence presented in the criminal trial. Nevertheless, we did not think we should make a finding on an allegation of criminal misconduct which a criminal court has already resolved in the grievor's.favour unless we are satisfied that a contrary finding would materially affect the outcome in this matter. Accordingly, we considered whether dismissal of the grievor would be justified if the alleged misconduct in the parMng lot did occur. We concluded that it' would not. What we will refer to for convenience hereafter as "the alleged parking lot misconduct" had two aspects. There was the grievor's alleged failure to comply with the store investigators' directions after they told him he was under arrest. There was also the grievor's having driven his truck toward Ms. Birrell in a way which allegedly threatened violence and, so, constituted an assault in legal terms. The union did not disPute that these were allegations of wrong-doing of a'criminal nature. We do not condone such behaviour. The issue is not just whether this alleged behaviour was bad, it is whether' such behaviour, if it occurred, warranied discipline or discharge by the employer. The mere fact that an employer disapproves of its employee's off-duty conduct is not enough to warrant discipline or discharge the conduct must affect the employer's business, or otherwise have an impact on the employment relationship before the employer can have any ~ight to respon,d to the conduct in a punitive fashion] Whether criminal misconduct has that effect or impact depends' on -the nature both of the misconduct and of the employment. In Re General Spring Products Ltd. and' U.A. W., Local 1524 (1968),. 19 L.A.c: 392, arbitrator Weatherill observed that the employer is not the Custodian of an employee's character: In the instant case, the act .for which the grievo~ was conv:icted did not detrimentally affect the production of the p]ar/t ormanagement opei~ations or the safety of the employees or of company property or the general disefpline in the plant or mattersof a similar nature: N° doubt the fact of the grievor's conviction would indicate to the company and .to' the' community at large, that the grievor-was not a man of good character. The company, however, is not the custodian of the grievor's character, and while there may no.doubt be some jobs in which the character and reputation of the employee is an important element, the grievor's was not one of them. Matters of character and reputation, whether of the employer or. of the employee, must be hnked to the employment in question in order to justify an employer response. Both Counsel agreedthat the considerations identified' in~ the five numbered points set out-'in Millhaven Fibress and in the three questions set out in Huron'-Steel Products4, which appear in the passage quoted earlier from Gardiner #1, are relevant in determining whether an employer may discipline an employee for his or her off-duty- misconduct. Those points and questions illustrate, 'elaborate or restate the fundamental proposition that an employee's off-duty condUct must affect.the employer, the employer's business Or the employment relationship .in some substantive way before the employer can legitimately respond to it with discipline or discharge. Re Millhaven Fibres Ltd., Millhaven Works, and Oil, Chemical & Atomic Workers Int'l~ Union, Local 9.670 (1967), I(A) Union-Management Arbitration Cases 328 (Anderson). Re U.A. W., Loc. 195 and Huron Steel Products Co. Ltd. (1964), 15 L.A.C. 288 (Reville). It is not alleged that the grievor's conduct in the mall parking 10t on November 29, 199 ldirectly injured the employer, a fellow employee or anyone who deals with the employer. Mr. Morris's testimony about what Mr. Kalnins told him about what unnamed employees asked him is a wholly insufficient basis for any finding that the employer will have any real difficulties with other employees which can be linked directly to any actual misconduct by the grievor in the mall parking lot on NOvember 29, 1991. If it occurred, that misconc[uct cannot now result in the grievor's ...,.~'performing his job. incarceration·, so it will not physically prevent him A good part of the thrust of the employer's case, at least at the outset, was that the grievor's having committed a crime or crimes would affected his capacity to perform effectively as a CO. Much was made. of a CO's function as a role model, and of the influence CO's are said to have in the 'rehabilitation of criminals. This part Of the employer's case rests entirely on the evidence of Mr. Morris, who claimed to know from experience What effect CO'S have on inmates. He also claimed to know from experience how inmates react to a CO's being charged or convicted. His experience onthe latter point proved to be extremely limited and'largely unsupportive of.his opinions in that area. 'As, a result, we are not inclined to place much weight on his other evidence about the interaction of CO's and inmates. It might be said that even though Mr. Morris's claims to supportive experience are suspect, some of his points were nevertheless self-evident. The evidence befOre us lead us to be cautious about supposedly self-evident assumptions. The dissenting member in Gardiner ~1 thought it was self-eVident that the grievor's theft would become common knowledge and interfere with the employer's operations: . -26- It was accepted by th~ Court, and by this Board, that the grievor was guilty of theft with intent. If. this.fact is not already known throughout the Hamilton-Wentworth Detention Centre,.it will be, I suggest, within days of the release of this award. I fail to. see, therefore, how the actions of this employee will not seriously affect' his ability to pofform his duties satisfactorily or how his actions and their affect on other employees will not place difficulty in the way of the Ministry "ProPerly carrying out its function of efficiently managing its works and efficiently directing its work forces." The parties now have the advantage of hindsight on that point. There is no evidence before us that the grievor had any di~culty p ,erforming his job' after he returned to Hamilton-WentWorth Detention Centre, or that the rel~ase of the decision in Gardiner #1 had any effect in that regard.: This 'brings us to the first of several ways in which evidence about the employer's response to other employee's. misconduct is relevant to the issues in this case.' That 'evidence suggests that the employer Ministry has .a good deal of experience With retaining at work or returning to work CO's and persons of higher rank who were known or reputed to have committed a wide variety of offences, not just alcohol related driving offences. The employer did not put before us any evidence that the abilities.of those COs to function had been seriously affected. That omission suggests that the Ministry's experience does not support the notion that a CO'~ ability to function will be adversely affected by knowledge that he or she has committed a crime involving. theft or assaultive defiance of authority unconnected with'the workplace. Again, we are not inclined to suppose that something is so when evidence of broader experience than that of Mr. Morris might have been put before us on the point. We accepted as proof of the truth of their contents Mr. . Morris's admissions. concerning the Ministry'S continued employment of A. M. after he stood off police with a firearm. Although the admissions were technically hearsay, we considered them sufficiently reliable for the purposes of this proceeding, bearing in mind Mr~ Morris's position in the employer's management and the relative ease with .which the employer could have either contradic~d that testimony if it were untrue, or supplemented it if it were incomplete. In the absence of evidence that A. M. was disciplined, we find tliat he was not: We also accep.ted Roger Rolfe's testimony' that he, "A" and "B" were convicted of the crimes to which he referred in his testimony, that "B"'s was a second· or subsequent drinking and driving offence and that none of the three was disciplined. On the other hand, we have given no weight to the assertion, based solely on Mr. Rolfe's entirely second hand information, ·t.,hat F. D. continued to work as a superintendent or ·deputy superintendent after be~g·~onvicted and serving a jail sentence. In his closing argument, counsel for the employer focused on the effect on the employer's "reputation" of the charges arising out of the events of November 29, 1991, the previous charges and the grievor's one previous conviction. He.argued that the evidence of'Mr. Morris, together with Ms. Lebrecht's evidence about her reaction to the grievor's conduct, supported this argument about harm to the employer's reputation. He referred us to Gutierrez5 in support of the proposition that as a public institution involved in the criminal justice system, the employer has a genuine interest in whether Correctional Officers have misconducted themselves while off duty. The Gutierrez decision concerned a data entry clerk employed by the Ministry of the Attorney-General. She had been convicted of shoplifting on five occasions, the last two of them dUring the course of her employment with that Ministry. Although there had been no complaints about her work, the Ministry dismissed her when it learned of the convictions, taking the position that it was "inconsistent with the mission and public posture of the Ministry of the Attorney-General to have in its employ someone with. a current and continuing crinainal record" such as hers. There was some evidence GSB~ 419/80 (Roberts), reported as Re Gutierrez and The Crown In Right of Ontario (Ministry o[ the Attorney-General) (1981), 29 L.A.C,~(2d) 333. -28: that she was receiving psychiatric treatment, but there was no prognosis of a "cure.'' The grievor appeared not to acknowledge culpability with respect to at least some of the misconduct for which she had previously been cOnvicted. The grievor's work did not bring her into contact with'the public or the police, howeverl nor did it give her any op~portunity to commit similar offences. There was no evidence that she had engaged in any misconduct in the workplace, or that her misconduct away from the work-place had actually compromised the Ministry's image. The penal consequences of that misconduct had not-yet interfered with her abi!i'.t/y~:~t0 attend at work~ In those circumstances, while it accepted that the Ministry hada legitimate need "to be above reproach", 'the board found it "ditYicult to determine how the need of the MiniStry for integrity in the administration of the Courts would have required the dismissal of the grievor." It reinstated the grievor, but imposed a substantial penalty: her reinstatement nearly one year after dismissal was without back pay or accumulated service or benefits, was to probationary status fOr one year and was conditional on her seeking and receiving psychiatric treatment. The Board said this was "to bring home to the grievor the seriousness of her misconduct and the closeness· of this case". There was no suggestion in that case that the emPloyer Ministry's response to Ms.. Gutierrez had been inconsistent with its response to other employees' off-duty criminal misconduct. The dissent in Gardiner #1 quoted this part sentence from the Board's decision in Eriksen, 12/75 (Beatty) at p. 30: It is·simply so obvious·that those persons .who are charged with the care and custody of those who have transgressed the laws of this country must not only be above reproach and suspicion·but as well that they ,must be seen to be above reproach and suspicion ..... That decision was concerned with a breach of a firm Ministry rule against COs' entering into an off-duty relationship with an inmate or ex-inmate, or a friend or relative of either, without notifying the employer and receiVing'its apprOval. There. Was no suggest~on in the Eriksen case that the employer's response had been inconsistent with its response to other employees' off'duty misconduct. The stated purpose of the rule enforc~d in Eriksen was to prevent staff members being accused of conflict of interest or breach of security. It was not suggested to us that the alleged parking lot misconduct raised ~any concern about a potential con_flict _ is no analogy to~ '~'~ drawn between that alleged of interest or breach of security'. There ~ .~ ~ misconduct and the Case of E. D., whose employment as a CO at HWDC was terminated after she formed a relationship with an eX-inmate contrary to the aforementioned rule, and was apprehended as she wa~ted in his car while he was committing a break and enter.~ In the abstract, we accept that the Ministry o£ Correctional Services would have an interest in stoffing its Correctional institutions exclusively with persons whose conduct is and·remains beyond reproach at all times, both at work and off-duty. The evidence before us shows that,.in practice, this is not an interest the Ministry has protected diligently with respect to off-duty misconduct, except when the misconduct offended the rule enforced in Eriksen..This is the second way in which the employer's response to other employee's misconduct is relevant: it deflates the employer's "reputatiOn" argument, as it did in Gardiner #1. The third way in which the employer's response to other employee's misConduct is relevant has to do with the well-understood principle that like cases should, receive like treatment (see Brown and Beatty, Canadian Labour Arbitration (3d ed., Canada Law Book) at ¶7:4144). While the alleged parking lot misconduct here is not "the same as" the off-duty crimes of A.. M., Roger Rolfe, "A" and "B," it is hard to see how it is substant~o-lly worse than any of them. In the context of the employer's unexplained non-response to those four off-duty crimes,~ particUlarly A. M.'s assaultive defiance of' police authority,, the grievor's ~alleged assaultive defiance of civilian authority in the parking~lot at Eaton~s conld not possibly justify dismissal, even in light of his past reCord. These, then; were thereasons for our decision that the employer did not have just cause to dismiss the grievor.~ It' followed that' the, griever should be reinstated, and. we so ordered. There 'remains the question whether .S.f_ ~ lesser discipline should be substituted'in respect of the alleged parking lot misconduct. Again, we' think we should determine whether we would substitute any discipline for the_alleged misconduct if we~ were to find that it took place, before considering whether the misconduct did take place. Would we substitute any other discipline? Subsection 19(3) of the Crown EmplOYees Collective Bargaining Act provides ·that.· (3) Where the Grievance Settlement Board 'deiermines that a disciplinary penalty. or dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers !ust and reasonable in all the circumstances. As we noted earlier; union'counsel argued that' because the employer's representative had said in her opening that there was "not a question of progressive discipline," we should not consider substituting a lesser penalty if we found dismisSal excessive. While · the employer's representative did use the quoted Words during her opening, at another . point in the .same opening she said that the employer would rel~ on the dissent in Gardiner #1. The thrust of that dissent was that the griever's off-duty theft had warranted some penalty less than dismissal. We did not and do not take the employer's rePresentative to have said that a lesser penalty would not be sought: We do not . Consider that counsel who argued the case for the employer, was precluded from arguing in the alternative for a lesser penalty. Having given the matter careful consideration, we have concluded that if the gr~evor were. guilty of the alleged parking lot misconduct, we would not exercise our discretion under subsection 19(3) in the employer's favour to substitute a lesser penalty for the dismissal which we have found excessive. For all of the reasons already canvaSsed, any legitimate interest the employer had in responding to that alleged misconduct was severely attenuated. The alleged misconduct did not result 'in injury to anyone involved in or with the employer's 'q~usiness." The employer's concern about the possible effects of others' learning of the allegedmisc0nduct waS overblown. But for the employer's having pursued the matter in this £orum, the extent of the public's knowledge about the ~lleged Parking lot~ misconduct would be that the grievor was acqui'tted of the charge by.a judge after a trial on' the merits. It seems curious to pursue a finding that .he was guilty nevertheless, if the supposed concern is about what the public will think. The evidence of the employer's having failed to discipline other employees who confessed to or were found guilty of other off-duty crimes weighs Very heavily against any prospect of our 'substituting any discipline for the alleged parking lot misconduct even if we found the grievor guilty of it. The employer made no attempt in this hearing to'make sense for us .of its treatment of off-duty conduct by other CO's over time and across its various institutions. As a result, it would be very difficul~ for us to select any minor disciplinary penalty .which we could be confident was fair in the sense of being consistent with or roughly Proportional to the employer's treatment of other employees' off-duty .misconduct. In the state of the evidence before us, we could not be satisfied that any discipline Would be just and reasonable in reSponse to the alleged parking lot discipline. Accordingly~ for the purposes of this decision it is not necessary for us to determine whether the grievor did what he is accused of having done in the shopping mall parking lot outside the Eaton's store on November 29, 1991. Remedy We have already directed that the grievor be reinstated. We further direct that the reinstatement be without loss of seniority,, and that the employer compensate the grievor.for any loss wh.ich flows from its unjust dismissal of him in January 8, 1992. We remain, seised with any dispute concerning the implementation of or otherwise arising out of these directions. We also remain seised with the parties' dispute about whether the grievor is entitled to punitive damages, which theparties agreed to defer until after we had determined the propriety of the dismissal. Dated at Toronto this 15 ~:. day of Mar~h, 1994. Owen V. Gray, ViCe-Chair P. Klym, Member M..O'Toole, Member