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HomeMy WebLinkAbout2003-0892.Adam.05-02-24 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-0892,2003-1202,2003-1203 UNION# 2003-0135-0014 2003-0135-0033 2003-0135-0034 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Adam) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Bram Herhch Vice-Chair FOR THE UNION Ed Holmes Ryder Wnght, Blair & Doyle LLP BarrIsters and SOlICItorS FOR THE EMPLOYER LIsa Compagnone Counsel Management Board Secretanat HEARING November 12, 2003 February 25 May 4 June 2, 3 10 & 11 July 7 October 5 November 5 and December 6 2004 2 DeCISIon On March 27 2003 an IncIdent took place whIch, ultImately resulted In the dIscharge of the gnevor Mark Adam, on June 10 2003 Three gnevances were filed on behalf of the gnevor Efforts at medIatIOn of the resultIng gnevances were unsuccessful and the formal arbItratIOn heanng In thIS matter commenced on November 12, 2003 and contInued for some 11 heanng dates, the last of whIch was In December 2004 Over the course of those heanng days we heard the eVIdence of SIX wItnesses (as well as that of a seventh whose eVIdence was stIpulated by the partIes) and receIved and marked 36 documents as exhIbIts In addItIOn, on one of the earlIer heanng days, we took a VIew of the Windsor JaIl and, In partIcular the sally port area where the relevant events occurred. I note, as well, that although three gnevances were ImtIally filed on behalf of the gnevor the umon IndIcated that It was proceedIng only wIth the dIscharge gnevance The other two gnevances are, therefore effectIvely wIthdrawn. The IncIdent whIch resulted In the dIscharge Involved the gnevor In CIrcumstances to be more fully descnbed shortly slappIng a fellow CorrectIOns Officer ("CO"), Jill CassIbo In the sally port of the Windsor JaIl Although I have called Ms CassIbo a "fellow CO" It should be noted that at the tIme of the events In questIOn the gnevor whIle retaInIng hIS home posItIOn of CO was an ActIng OperatIOnal Manager (and Indeed, but for a hIatus of 3 months assocIated wIth the umon stnke In the spnng of 2002, had been In that actIng OM16 posItIOn for a penod approachIng four years) As such, hIS dutIes would have Included supervIsory responsIbIlItIes In relatIOn to Ms CassIbo and other COs Murray Laird IS the Supenntendent of the ElgIn Middlesex DetentIOn Centre He had no pnor dealIngs wIth the gnevor and, apart from the "allegatIOn meetIng" held on May 30 2003 had never prevIOusly met the gnevor After an InVestIgatIOn (in whIch Mr Laird played no part) had been completed and a report (undated) had been prepared by the InVestIgatIng officer Andy Farkas, an Inspector wIth the CorrectIOnal InvestIgatIOn & Secunty Umt, the matter was assIgned to Mr Laird to reVIew and to determIne the employer's response After reVIeWIng vanous matenals and meetIng wIth hIm at the allegatIOn meetIng referred to earlIer Mr Laird deCIded to termInate the gnevor's employment. The grounds for the dIscharge were enumerated In the termInatIOn letter dIrected to the gnevor as follows 3 . On March 27 2003 you IntentIOnally struck a female correctIOnal officer who was under your dIrect supervIsIOn. . You vIOlated Mimstry polIcIes IncludIng, staff conduct as dIrected by the ADI, the WDHP polIcy and the Windsor JaIl StandIng Orders . You vIOlated the Statement of EthIcal PnncIples . You contravened Mimstry polIcy when, pnor to leavIng the InstItutIOn, you faIled to submIt an Occurrence Report or otherwIse report the IncIdent to the Supenntendent. The employer asserts that there was Just cause for the dIsmIssal whIch was Imposed solely on the basIs of the events of March 2003 The umon concedes that the gnevor's conduct was worthy of dIscIplIne but asserts that dIscharge IS sImply too harsh a penalty In the CIrcumstances of the case The employer In turn, submIts that In the event I am persuaded that dIscharge was too severe a penalty then the gnevor stIll ought not to be reInstated but should be awarded damages In lIeu. In the final alternatIve the employer urges that any reInstatement be subJect to terms IncludIng assIgnment to a locatIOn other than the Windsor JaIl There IS undoubtedly some Irony to be had In the fact that, despIte the amount of tIme, the number of wItnesses and exhIbIts reqUIred to complete these proceedIngs, both counsel, In theIr final argument, asserted that the essentIal facts of the case were not In dIspute By and large that IS true The eVIdence we heard falls, broadly speakIng, Into four categones 1 EVIdence from the three eyewItnesses called to testIfy about the events whIch culmInated In the gnevor slappIng Officer CassIbo 2 The denvatIve eVIdence I e not dIrect eVIdence about the altercatIOn Itself, but rather eVIdence about what the partIcIpants Said or wrote or otherwIse reported to others about the events In questIOn, 3 EVIdence of Dr W V McDermott, a clImcal psychologIst wIth partIcular expenence and expertIse In treatIng and asseSSIng clIents Involved In law enforcement; and. 4 EVIdence as to the manner In whIch the employer arnved at ItS decIsIOn to termInate the gnevor's employment. 4 I wIll reVIew each of these areas In turn. The events in the sally port My findIngs In relatIOn to the relevant events whIch took place In the sally port of the Windsor JaIl on March 27 2003 are based on the eVIdence of the three eyewItnesses who testIfied In these proceedIngs the gnevor CO CassIbo and another CO Jamsse Denhartogh. (Although the gnevor stands In a dIfferent posItIOn In these proceedIngs, I may contInue to refer to these three, collectIvely as the "eyewItnesses" ) As both counsel submItted, there IS lIttle In the way of dIspute as to the course of these events That IS not to suggest that there are not numerous mInor dIscrepancIes or omISSIOns In the compared eVIdence of the three eyewItnesses Indeed, the close and exactIng InterrogatIOn of wItnesses In thIS matter IS perhaps testament to both the greatest vIrtues and most unfortunate shortcomIngs of the adJudIcatIve process, one whIch can, at tImes, mIne the depths of wItnesses' accounts In an effort to expose truth and establIsh credIbIlIty but can, In other cases, merely demonstrate the partIcIpants' ImpressIve abIlItIes to construct seemIngly endless, If not always pertInent, mystenes all constructed on a foundatIOn composed of the frailty of human memory In any event, consIstent WIth counsels' final argument, few If any of the essentIal facts of thIS case are In dIspute The sally port area serves as a buffer an added secunty layer between the Inmate area of the Jail and ItS maIn outsIde entrance There are two doors wIthIn It the external door whIch leads to the maIn entrance the other the Internal door whIch leads to the Inmate area. Both doors open Inwards from theIr respectIve locatIOns Into the sally port. For ObVIOUS secunty reasons, only one of these doors can be unlocked at any gIven tIme The doors each lock when closed and can only be unlocked by the CO staffing the MaIn Entry Control (MEC) module That module, whIch IS adJacent to the sally port, Includes a WIndow from whIch the CO assIgned to the MEC module can VIew the InsIde of the sally port and control the unlockIng of eIther of the two doors There IS also a buzzer InsIde the sally port by whIch COs WIshIng to eXIt or enter the JaIl can sIgnal the MEC CO to unlock the reqUIred door OpposIte the MEC WIndow InsIde the sally port IS a gnll through whIch one can VIew another area wIthIn the JaIl Thus, If one were standIng InsIde the sally port facIng the external door the Internal door would be behInd, the 5 MEC WIndow to the nght and the gnll to the left. The InsIde of the sally port IS rectangular approxImately SIX by eIght feet. The sally port IS, of course, delIberately desIgned to create a bottleneck to further control movement Into and out of the Jail Because of thIS structural bottleneck, COs wIll frequently be reqUIred to Wait for bnef pen ods wIthIn (or even Just outsIde) the sally port untIl the traffic assocIated wIth the OpposIte unlocked door has subsIded, that door has been locked and the door for whIch they are WaitIng can then be unlocked. And whIle, Indeed, perhaps because, the day to day Job reqUIrements of persons workIng WI thIn correctIonal InStI tUtI ons such as the Windsor JaIl can hardly be expected to be replete wIth mIrth, It IS not dIfficult to ImagIne how exchanges and delays around entenng and eXItIng the sally port mIght provIde some welcome moments of levIty forced and artIficIal though they may be In one respect, the events In questIOn are a pathologIcal example of such carryIngs on. The pnncIpal partIcIpants (though, to a lesser extent, CO Denhartogh) all agreed that the mood whIch charactenzed the events In questIOn, almost to theIr unfortunate cUlmInatIOn, was one of Jocular free-spmted horseplay At approxImately 6 45AM on March 27 2003 the overnIght ShIft on whIch the gnevor and COs CassIbo and Denhartogh had been workIng was endIng. The gnevor on hIS way out of the Jail, made hIS way InsIde the sally port. The doors to the sally port remaIn unlocked untIl they are fully closed. It IS possIble to close the doors Incompletely so that the latch remaInS aJar Indeed, It appears that there IS a common practIce among COs to do so partIcularly In cIrcumstances, lIke at the end of the ShIft, when they are aWaitIng the arnval of other departIng COs Although there IS no dIrect eVIdence on the pOInt, I am satIsfied that IS what the gnevor must have done upon hIS entry Into the sally port. For when COs CassIbo and Denhartogh approached the sally port moments after the gnevor had entered It, the Internal door remaIned unlocked, "off the latch" At about the tIme or Just before (her eVIdence IS InCOnsIstent on the preCIse tImIng - a matter ultImately of lIttle relevance for our purposes) CO Denhartogh reached to push the door open to facIlItate entry Into the sally port, the gnevor responded by shuttIng the door lockIng out the two COs WhIle the gnevor had no partIcular recollectIOn of thIS actIOn, neIther dId he deny It and I am satIsfied, based on the eVIdence of the two COs, that thIS IS what happened. More Importantly I am satIsfied that all Involved responded to thIS In the spmt In whIch It was 6 Intended I e as a prank, a relatIvely harmless Instance of horseplay whIch set the tone for at least some of, the events whIch followed. The CO on duty at the MEC module then opted to unlock the Inner door (rather than the outer door to facIlItate the gnevor's eXIt) The two COs entered the sally port. However whether In an effort to contInue the horseplay and/or to facIlItate the entry of other COs expected to enter the sally port at the end of the ShIft, CO CassIbo faIled to fully close the Inner door behInd her There then followed some spmted banter between the gnevor and CO CassIbo about cloSIng the Inner door so that the gnevor could depart. The nature of that exchange IS consIstent WIth the eVIdence the two COs offered about theIr relatIOnshIp wIth the gnevor pnor to these events It was clear that, pnor to the IncIdent currently under reVIew they each had a good relatIOnshIp wIth the gnevor whom they respected. They both readIly acknowledged that hIS ultImate physIcal response to CO CassIbo was entIrely uncharactenstIc of the gnevor In any event, returmng to the events as they unfolded, It IS clear that CO CassIbo made remarks to the gnevor whIch, In a dIfferent context, mIght have suggested a lack of appropnate deference for hIS supervIsory posItIOn. I am not, and no one In these proceedIngs was, cntIcal of CO CassIbo's conduct In that regard. I make the observatIOn only to reflect that there must have been a sufficIent degree of comfort and famIlIanty In the relatIOnshIp between the two to permIt that kInd of spmted exchange - one whIch they both descnbed as lIttle more than Innocent verbal baitIng. As CO CassIbo was resIstIng cloSIng the Inner door the gnevor took It upon hImself to reach over her and closed It on hIS own. At thIS pOInt the outer door was unlocked by the MEC CO and the gnevor proceeded to open It. The gnevor was In front of the door (its handle to hIS nght on the nght hand sIde of the door) CO CassIbo was behInd the gnevor and slIghtly to hIS left; CO Denhartogh was perched agaInst the metal drawer adJ acent to the MEC WIndow facIng the gnll 7 The gnevor was holdIng a large lunchbox/cooler by Its strap handle In hIS left hand. He reached for grasped and pulled the door handle wIth hIS nght hand and then, to contInue the momentum of the opemng door moved hIS hand from the handle to the outsIde of the door the thumb on the InsIde of the door and hIS hand and fingers cupped around the sIde and outsIde of the door to contInue SWIngIng It open. As he was dOIng thIS, CO CassIbo stepped forward and kicked the door wIth sufficIent force that It slammed shut. The door IS a heavy metal structure several Inches thICk. There was no dIspute that senous damage could result to a hand caught between the door and the door Jamb (Indeed, there was undIsputed eVIdence before me that precIsely such an IncIdent resulted In a fractured finger -- although, perhaps Iromcally thIS occurred some months after the events here beIng revIewed.) Fortunately the gnevor was able to pull hIS hand out from between the door and the door Jamb before the door closed. Good fortune, however ceased to smIle at that pOInt. The gnevor's response was to turn to face CO CassIbo and slap her roundly squarely and forcefully wIth hIS open nght hand to the left sIde of her face Much has been made of the tImIng of these events and they have been subJect to an Intncate and exactIng scrutInY I am satIsfied that the length of tIme between the door havIng been kicked shut and the slap to CO CassIbo's face was, though ImpossIble to quantIfy wIth absolute preCISIon, mImmal Although the two events (the cloSIng of the door and the slap) were ObvIOusly not sImultaneous and It IS possIble to Insert an Interval of tIme between them, I am satIsfied that the gnevor's unfortunate, III advIsed and entIrely Inappropnate response was vIrtually Instantaneous In comIng to thIS conclusIOn I have consIdered the eVIdence of all three of the eyewItnesses the gnevor who IndIcated that he pulled hIS hand out of the door and ImmedIately turned and slapped CO CassIbo CO Denhartogh's account (in the InVestIgatIOn IntervIew statement) that "as soon as the door shut nothIng was said but Mark Just came up wIth hIS nght hand and smacked. Jill's face" and CO CassIbo's descnptIOn (also In her IntervIew statement) that "when the front door closed Mark ImmedIately turned around and smacked me across the face wIth hIS nght hand" 8 I wIll return to the questIOn of the relatIve tImIng of these events later In my decIsIOn, as It pertaInS not only to the questIOn of what actually transpIred but also to the questIOn of how candId the gnevor was In hIS vanous descnptIOns of the events It IS somewhat dIfficult, though fortunately not entIrely necessary for our present purposes, to paInt a preCIse pIcture of what occurred In the few seconds after the slap and dunng the bneftIme the gnevor and the two COs remaIned In the sally port. EssentIally It would appear that the gnevor expressed hIS concern and dIsmay about what he vIewed as hIS narrow escape from InJury CO CassIbo protested that thIS dId not constItute lIcense or JustIficatIOn for the slap In what mIght be descnbed as a cruel extensIOn of the bottleneck created by the sally port doors and theIr functIOmng, there then followed some lImIted negotIatIOns about who was to go where first. The gnevor sought to YIeld to permIt CO CassIbo to eXIt the sally port. She, however had no desIre to cross the gnevor's path to do so prefernng Instead to retreat back through the Inner door Into the Jail, all the whIle exhortIng the gnevor to leave UltImately It was the outsIde sally port door whIch was opened first and the gnevor left. Pnor to hIS departure, however he addressed a SUCCInct apology to CO CassIbo None of the three eyewItnesses completed occurrence reports, as each of them conceded they ought to have done, pnor to leavIng the Jail that mormng. The gnevor completed hIS occurrence report later that day on hIS return to work at approxImately 10 PM, CO Denhartogh completed her occurrence report some four hours later at approxImately 2 AM on March 28 2003 and CO CassIbo filed her occurrence report at approxImately 9 AM on that same day NeIther of the two COs was dIscIplIned for theIr faIlure to submIt a tImely occurrence report. It wIll be recalled that the gnevor's faIlure In that regard was one of the stated grounds for hIS termInatIOn. I pause to reflect on the gnevor's Intent In slappIng CO CassIbo The level of attentIOn whIch was devoted to thIS Issue not only In questIOmng by counsel, but also In Mr Laird's delIberatIOns and the manner In whIch Inspector Farkas conducted hIS InVestIgatIOn suggested that the facts of thIS case mIght make useful fodder for a legal textbook or a learned treatIse on Issues of IntentIOnalIty and perhaps even ItS cnmInallaw COUSIn, mens rea. I am satIsfied, 9 however that the Issue of Intent IS neIther so mystenous nor complIcated as to Impair arnvIng at an understandIng of how the events unfolded. (The questIOn of hoYf, the grievor chose to describe his actions IS a dIfferent one and wIll be dealt wIth separately) Levels of IntentIOn can easIly be descnbed as pOInts along a contInuum some of whose maIn markers (in IncreaSIng levels of IntentIOn) mIght be thought to be complete absence of Intent/accIdent, recklessness, sImple Intent and premedItatIOn. The gnevor's level of Intent IS not to be found at eIther extreme of the contInuum. His act was neIther premedItated nor accIdental NeIther do I belIeve nor dId anyone suggest, that hIS actIOns were merely reckless (a charactenzatIOn whIch mIght, however apply to CO CassIbo's kIckIng of the door) Of the four IdentIfied "markers" the gnevor's Intent would clearly be found closest to the sImple Intent marker However I am also satIsfied that on that contInuum the gnevor's level of Intent would be found closer to the end of the tern tory of recklessness than to the begInmng of that of premedItatIOn. In understandIng the level of the gnevor's formed IntentIOn, I have found one of hIS descnptIOns of the events to be partIcularly InstructIve He suggested that he dIdn't even know what had happened untIl after It happened. And whIle I do not accept thIS descnptIOn (whether or not It was "Intended" as such) as the lIteral truth, I do find value In ItS explIcatIve power The speed wIth whIch these events unfolded was such that there was sImply InSUfficIent tIme for the gnevor to have fully formed the IntentIOn and to have been fully self-conscIOus of ItS formatIOn as the events unfolded. It IS here, perhaps, that one of the conundrums of the gnevor's eVIdence ought to be bnefly addressed. The gnevor generally dIsplayed an InabIlIty to recall hIS state of mInd or IntentIOn In that moment between the external door havIng been shut and hIS slappIng CO Cassibo I generally accept that InabIlIty to recall as genuIne It IS to be dIstIngUIshed, however from the occaSIOns upon whIch the gnevor was asked to comment on hIS conduct, not by recallIng what transpIred, but by analyzIng In a somewhat more detached and obJectIve fashIOn what conclusIOns mIght be drawn about hIS Intent from the events whIch transpIred. Ignorance or lack of recollectIOn In the former context should not be seen as InCOnsIstent WIth the abIlIty to 10 form more defimtIve conclusIOns In the latter Put more concretely I see no necessary contradIctIOn between the gnevor denYIng a recollectIOn of a specIfic formed Intent to stnke CO Cassibo on the one hand, and hIS ultImate acknowledgment, based on an after the fact assessment of the events, that he must have Intended to stnke her SImIlarly neIther do I see any necessary contradIctIOn between hIS InabIlIty to recall feelIng angry at the tIme WIth the subsequent acknowledgment that he must have been angry ReturnIng to an assessment of the gnevor's level of Intent In stnkIng CO CassIbo I am satIsfied that gIven the pace wIth whIch events unfolded, they do not readIly permIt us to draw relIable conclusIOns about the soundness of the gnevor's exhibIted Judgment. Rather than an IndIcator of poor Judgment, I belIeve the gnevor's conduct was more IndIcatIve of poor Impulse control, the matter not havIng evolved to the level of formIng and ImplementIng a Judgment pnor to stnkIng CO CassIbo None of thIS changes the events whIch transpIred or the gravIty of the Impropnety the gnevor commItted. These Issues wIll, however be of some relevance In determInIng the appropnate penalty for the gnevor' s InfractIOn. The derivative evidence and the grievor's accounts It was clear from Mr Laird's eVIdence and from the submIssIOns of the employer that a sIgmficant factor In both the employer's determInatIOn to dIscharge the gnevor and ItS posItIOn supportIng that decIsIOn In these proceedIngs was the gnevor's asserted lack of candour In recountIng the events whIch transpIred. There IS some basIs for that concern, though, as wIll become eVIdent, I am not persuaded that the gnevor's asserted lack of candour was eIther as extensIve or as Important as the employer contends The dIfficulty wIth the gnevor' s accounts of events can be seen most sIgmficantly and dIrectly In the words he used In hIS very first account of events, hIS occurrence report, whIch Included the folloWIng 11 Officer CassIbo kicked the door closed. As a reactIOn, I ImmedIately pulled my hand back, narrowly mISSIng gettIng It caught In the door and qUIckly turned towards officer CassIbo As I turned my arms swung forward and my nght hand IncIdentally came Into contact wIth left sIde of officer CassIbo face I had no malIcIOus Intent to stnke Officer CassIbo nor was thIS done out of anger I Just reacted to what had happened. I would never IntentIOnally stnke anyone Although thIS IncIdent was a result of our horseplay and the contact made was umntentIOnal I deeply regret that It happened. [emphasIs added] The gnevor's account IS clearly Inaccurate Insofar as It suggests that the contact of the gnevor's hand wIth CO Cassibo's face was eIther IncIdental or umntentIOnal It was neIther As wIll be seen shortly subsequent to first acknowledgIng that the slap was neIther IncIdental nor umntentIOnal, and In an effort to explaIn the earlIer descnptIOns, the gnevor acknowledged that he had chosen hIS words poorly and that what he had meant to commumcate was hIS lack of premedItatIOn, not hIS lack of Intent or hIS suggestIOn that the physIcal contact was somehow accIdental I do not find that explanatIOn to be conVInCIng. Rather I am persuaded that the gnevor's ongInal chOIce of words was a deliberate one (wIth lIkely a greater degree of Intent than the slap Itself) desIgned to mImmIze the appearance of hIS culpabIlIty In the event. And that approach on the gnevor's part contInued Into (but not beyond) the ImtIal portIOn of the InVestIgatIOn phase The IncIdent occurred on March 27 2003 On Apnl 9 2003 Inspector Farkas, after havIng done the same wIth COs CassIbo and Denhartogh about a week earlIer conducted an IntervIew of the gnevor Although the prevIOUS IntervIews of the two COs lasted less than two hours each, the IntervIew of the gnevor commenced Just pnor to 7 OOPM and dId not conclude untIl after 1 OOAM the folloWIng mormng. Part of the reason for the protracted nature of the IntervIew was related to what was described as a computer glItch. Inspector Farkas was takIng detaIled notes of the IntervIew The first portIOn proceeded untIl a break about a half an hour after ItS start. Inspector Farkas' notes of that portIOn of the IntervIew were duly saved and recorded. The second portIOn of the IntervIew 12 resumed at about 8 15PM and all of the partIcIpants belIeved the IntervIew had been concluded and completed about two and one half hours later Unfortunately It appears that Inspector Farkas dIscovered at that pOInt that hIS notes of that portIOn of the IntervIew had not been saved and efforts to retneve them ultImately proved fruItless Thus, the IntervIew resumed agaIn at approxImately 11 45PM and contInued untIl ItS final conclusIOn sometIme after 1 OOAM. In thIS the thIrd and last segment of the IntervIew Inspector Farkas attempted to redo and recreate the questIOns posed and answers provIded dunng the second segment. Thus, Inspector Farkas' record of the IntervIew consIsts of notes of the first and thIrd segments but none of the second. In any event, It IS clear that there are some sIgmficant dIfferences In portIOns of the gnevor's account provIded In the first and the final segments of the IntervIew PortIOns of the gnevor's account In the first segment of the IntervIew clearly echo the contents of hIS occurrence report (whIch the gnevor had revIewed pnor to the IntervIew) Inspector Farkas' notes (whIch the gnevor sIgned and acknowledged as accurate In hIS testImony) IndIcate the gnevor saYIng Officer CassIbo then kicked the door shut. I ImmedIately pulled my hand back and In one motIOn I turned to face her and my arm swung across and I made IncIdental contact wIth the left sIde of her face I had no Intent whatsoever to stnke her Several hours later In the thIrd segment of the IntervIew the gnevor began to paInt somethIng of a dIfferent pIcture I reacted by ImtIally pullIng my hand away from the door out of harm's way I then In a reflexIve actIOn I turned to face the source of the threat, that beIng Cassibo and In dOIng so I struck her wIth my open nght hand I had no premedItatIOn to stnke her And when dIrectly asked by Inspector Farkas what he had meant by the use of the word "IncIdental" In hIS occurrence report, the gnevor replIed I used the wrong language when I was statIng that. What I meant to say was that I had no premedItated thought to stnke her It was a result of my reactIng 13 to the threat of the door beIng kicked on my hand and me tryIng to face the source of that threat. [Inspector Farkas then asks] Are you suggestIng the contact your hand made wIth CO Cassibo's face was accIdental In that It was a natural contInUatIOn of the movement of pullIng your out of harm's way? [The gnevor responds] No That was a mISInterpretatIOn of my language I reacted to the threat, whIch was CassIbo who I stIll consIdered a threat and I turned to face her her beIng the contInued threat and that IS when I struck her Clearly It was not an accIdent. There was Intent to hIt her but no real premedItatIOn In terms of havIng a lot of tIme to thInk about hIttIng her In response It was a splIt second and there wasn't a lot of tIme for me to premedItate to cause harm but there was some anger and the anger mamfested Itself by me stnkIng her Numerous theones mIght explaIn thIS evolutIOn In the gnevor's account of events Among those offered (both explIcItly and ImplIcItly) by the partIes were the gnevor sImply (at least ImtIally) prevancated In an effort to dImImsh the senousness of hIS conduct; the gnevor sImply chose poor language whIch was later clanfied, the gnevor was persuaded, or perhaps coerced, by the skIlful, or perhaps IntImIdatIng, IntervIew techmques ofInspector Farkas It IS not necessary for me to resolve all of the relatIve and absolute applIcabIlIty of these competIng (and not always necessanly mutually exclusIve) theones Suffice It to say that, In large measure, I accept the theory most adverse to the gnevor I e that hIS words were delIberately chosen In an effort to downplay the senousness of hIS mIsconduct. But I note first of all that thIS aspect of the gnevor's account relates to hIS descnptIOn of hIS mental state There IS no sIgmficant aspect of the events whIch the obJectIve observer would have seen as markedly dIfferent dependIng on the verSIOn advanced. Thus, whatever obfuscatIOn may have been the goal, the gnevor never mIsrepresented the actual events and, as the eVIdence also clearly dIscloses, acknowledged from the very outset that there would be consequences for hIm as a result of hIS conduct. He also tendered an apology at the earlIest opportumty and made a number of efforts (both on the day of the IncIdent and over the folloWIng week) through the umon presIdent, to tender a more formal apology and to pursue a possIble recOnCIliatIOn, efforts whIch CO CassIbo rebuffed, as she was entItled to do But most Important of all on thIS pOInt, I am satIsfied that whatever dIstortIOn coloured the gnevor's pnor verSIOn of events (and I am also satIsfied that deceptIOn lIkely Included some 14 degree of self-deceptIOn), from no later than the end of the InVestIgatIOn IntervIew In the early hours of Apnl 10 2003 the gnevor proffered a true and accurate portrayal of the events In questIOn. WhIle It would clearly have been preferable for the gnevor's candour to have emerged ummpeded at some earlIer pOInt In the two weeks between the IncIdent and the InVestIgatIOn IntervIew the fact remaInS that the gnevor took an early opportumty to correct hIS less than entIrely forthnght account of events and the employer was thus In posseSSIOn of the gnevor's more accurate and truthful account for some two months pnor to ItS decIsIOn to termInate hIS employment. In arnvIng at thIS concluSIOn, I have not lost sIght of the fact that the employer asserted that there was a perhaps more sIgmficant and endunng aspect to the gnevor's lack of candour The employer pOInted not only to the language used by the gnevor as Just dIscussed but also to what It asserts was a "pause" by the gnevor In the moment(s) between the door havIng been kicked and the slap As I have already IndIcated, I have found that the length of tIme between those two events was mImmal However because thIS submIssIOn occupIed a place of some promInence In both Mr Laird's eVIdence about the basIs for hIS decIsIOn and the employer's final submIssIOns In the case, I wIll consIder It a lIttle more fully There IS nothIng In any of the three occurrence reports about any such "pause" It first emerged In CO Denhartogh's IntervIew statement. In each of the IntervIews Inspector Farkas permItted the subJect to provIde hIm a full oral narratIve report of the events pnor to pOSIng more specIfic questIOns It was dunng the latter phase that the Issue of a "pause" surfaced. In the spots where one mIght otherwIse have expected CO Denhartogh to report the pause she had prevIOusly IndIcated [in her occurrence report] Once the door shut, I seen ActIng OperatIOnal Manager Adam turn to hIS left and stnke Officer CassIbo [in the narratIve portIOn of her IntervIew statement] As soon as the door shut nothIng was said but Mark Just came up wIth hIS nght hand and smacked Jill's face 15 Later In the IntervIew however In response to a query from the Inspector as to whether the gnevor's slap mIght have been accIdental, umntentIOnal or IncIdental, CO Denhartogh offered the folloWIng None of the above Absolutely not. The door had closed and there was a short pause where he dropped hIS chIn down lIke he was mad and thInkIng then he turned and struck her really hard. SImIlarly In her eVIdence In chIef CO Denhartogh dId not ImtIally describe any pause, but sImply reported the shuttIng of the door the gnevor turmng and the slap But when asked how long an Interval there was between the closed door and the slap she IndIcated It "Just happened momentanly" " he paused for one second" And when asked what she observed In the pause, she descnbed her own thoughts and concluded "but my thoughts dIdn't have tIme to be spoken cause he turned and hIt her so qUIck" ThIS IS the eVIdentIary foundatIOn for the "pause" I should note, however that CO Denhartogh's eVIdence about precIsely when the pause occurred was not conSIstent. The above selectIOn from the IntervIew report suggests It happened prior to the gnevor turmng and slappIng CO CassIbo But In cross-eXamInatIOn, when It was suggested to her that she could not have seen the gnevor's face clearly whIle he was facIng the outer door CO Denhartogh reVIsed her account to locate the "pause" as havIng occurred after the gnevor turned to face CassIbo but pnor to the slap There IS nothIng In any of CO CassIbo's eVIdence (i e her occurrence report, IntervIew statement or oral eVIdence before me) to suggest any such pause SImIlarly but for a sIngle word uttered vIrtually at the conclUSIOn of hIS protracted IntervIew there IS nothIng else In any of the gnevor's eVIdence whIch IS conSIstent WIth any sIgmficant "pause" Two observatIOns are In order FIrst, I have not and do not find It necessary to make any negatIve credIbIlIty findIngs In relatIOn to the eVIdence of the three eyeWItnesses' accounts of the events In questIOn. I accept that each of them made theIr best efforts to gIve theIr eVIdence In as candId a fashIOn as possIble wIth a genuIne desIre to tell the truth, as they perceIved It. DespIte that, I must note that It was the eVIdence of CO Denhartogh whIch most often came Into conflIct WIth that of others, generally on pOInts of lIttle ultImate relevance (e g. whether the gnevor 16 opened the door wIth hIS left or nght hand, whether the gnevor was carryIng hIS lunchbox/cooler whether the atmosphere InsIde the sally port was convIvIal nght up to the slap whether It was the gnevor or CO CassIbo who last closed the Inner sally port door whether CO Denhartogh spoke InsIde the sally port after the slap and before the gnevor' s departure, to lIst but a few IncIdents) AgaIn, I do not suggest that there was any effort to mIslead the Board or to otherwIse taIlor her eVIdence, rather I belIeve these dIscrepancIes are the product of lIttle more than a umversal human frailty - Imperfect memory I am also concerned that the process of InVestIgatIOn and adJudIcatIOn may have Imposed unreasonable expectatIOns on the eyewItnesses The central event In questIOn was lIttle more than a moment In tIme Yet the wItnesses have been subJected to extensIve InVestIgatIOns (WIth IntervIews lastIng many hours), eXamInatIOns and cross-eXamInatIOns whose transcnpts mIght fill volumes It IS lIttle wonder that they have produced dIscrepancIes In descnptIOn, even where the essentIal facts are not In dIspute And a chIef techmque used by all to further theIr Inqumes was to ask the wItness to freeze a moment In tIme, to put the vIdeo on "pause" and subJect the Image to Intncate detaIled questIOmng before askIng what happened next. ThIS approach IS an InVItatIOn for the conflatIOn of recollectIOns I am remInded of the hIgh school mathematIcs teacher's paradox - InVItIng students to stand four feet away from and to walk, In each of a senes of steps, halfway to the door wIth each succeSSIve step The motIOn can be repeated an Infimte number of tImes wIthout ever reachIng the destInatIOn so close to hand. SImIlarly there IS room for an Infimte number of Intervals or "pauses" wIthIn even a bnef moment of tIme Unfortunately I am not persuaded that thIS IS necessanly the most effectIve or relIable way to attempt to reconstruct those Infimte components to arnve at a clear pIcture of the deconstructed events Much of the gnevor's response In cross-eXamInatIOn pOInts to thIS very dIfficulty (perhaps once agaIn hIghlIghtIng the dIstInctIOn between actual recollectIOn and an after the fact analYSIS of a past event) When asked about hIS acknowledgement of a "pause" In the InVestIgatIOn IntervIew the gnevor conceded that when tryIng to break It down for the InVestIgator when breakIng events down "frame by frame It comes across as a pause" but also clearly asserted that hIS reactIOn was ImmedIate that he pulled hIS hand from the door and ImmedIately slapped CO CassIbo In summary the eVIdence of a "pause" ongInates In CO Denhartogh's IntervIew statement, although she seems to have radIcally reVIsed the nature of ItS tImIng later In her 17 eVIdence There IS support for the eXIstence of a pause In a sIngle word uttered by the gnevor close to the conclusIOn of hIS protracted InVestIgatIOn IntervIew That utterance IS completely InCOnsIstent WIth all of the gnevor's other eVIdence Indeed, the lImIted and elusIve eVIdence of any "pause" IS InCOnsIstent WIth all of the occurrence reports and all of the other eVIdence of all of the eyewItnesses It IS for these reasons that I have concluded that there was no meamngful pause In the events, no sIgmficant hesItatIOn by the gnevor between the tIme the door was kicked shut and hIS slap of CO Cassibo WhIle no claim was advanced or could be supported before me that It was wIthout Intent, the gnevor clearly acted or rather reacted In a reflexIve fashIOn wIthout forethought. Evidence of Dr McDermott Dr W V McDermott IS a clImcal psychologIst who treated the gnevor dunng five one- hour seSSIOns over a penod of three months subsequent to the gnevor's dIscharge from employment. His credentIals are most ImpressIve Of partIcular relevance for these proceedIngs IS the fact that hIS clIentele tends to be compnsed chIefly of law enforcement personnel and theIr famIlIes He has consulted for numerous local, provIncIal and federal law enforcement agencIes, IncludIng some pnor work done for the Windsor JaIl He IS thus possessed of an understandIng of the roles and responsIbIlItIes of COs and IS famIlIar wIth the corporate culture of the InstItutIOn. Dr McDermott has been called upon many tImes to assess the sUItabIlIty of candIdates for IntegratIOn Into and, more Importantly for our purposes, re-IntegratIOn Into or repatnatIOn to a polIce or correctIOns envIronment. He testIfied that hIS 30 years of expenence and hIS hIgh success rate (in terms of both posItIve and negatIve recommendatIOns) have enhanced hIS own confidence In the relIabIlIty of hIS own predIctIOns He offered an entIrely unambIguous and largely unchallenged VIew of the gnevor's posItIve chances for successful repatnatIOn Into the correctIOns envIronment. That assessment was based, In large measure, on an evaluatIOn of the gnevor's response to hIS cIrcumstances Dr McDermott testIfied that the gnevor exhIbIted genuIne shame and 18 remorse In relatIOn to hIS havIng struck CO CassIbo Dr McDermott accepted those sentIments as authentIc In part because the gnevor demonstrated no InClInatIOn towards demal or blamIng of others for hIS mIsfortune, a tendency he has wItnessed frequently In other patIents He predIcted an exceedIngly low probabIlIty of the gnevor beIng Involved In any future sImIlar IncIdent. He found the gnevor to be trustworthy relIable and chastened by the IncIdent. The basis for the employer's decision Murray Laird testIfied as to hIS delIberatIOns and the factors he consIdered In determInIng to termInate the gnevor' s employment. It wIll be recalled that the dIscharge was effected on the basIs of the folloWIng stated grounds . On March 27 2003 you IntentIOnally struck a female correctIOnal officer who was under your dIrect supervIsIOn. . You vIOlated Mimstry polIcIes IncludIng, staff conduct as dIrected by the ADI, the WDHP polIcy and the Windsor JaIl StandIng Orders . You vIOlated the Statement of EthIcal PnncIples . You contravened Mimstry polIcy when, pnor to leavIng the InstItutIOn, you faIled to submIt an Occurrence Report or otherwIse report the IncIdent to the Supenntendent. FIrst, Mr Laird IndIcated that had the gnevor's only transgressIOn been hIS faIlure to file a tImely occurrence report, he certaInly would not have been dIscharged on that basIs alone, Indeed, he lIkely would not have been dIscIplIned at all (in that regard I note once agaIn that neIther of the other two eyewItnesses was dIscIplIned for that partIcular InfractIOn) In relatIOn to the three remaInIng grounds, Mr Laird IndIcated that It was clearly the first that domInated hIS decIsIOn and that ground alone would have been sufficIent In hIS mInd to JustIfy the dIscharge 19 In VIew of that, I do not find It necessary to pursue In any great detaIl the nature of the second and thIrd artIculated grounds I accept the soundness ofMr Laird's assessment of the first ground beIng the pnncIpal one, gIven that both the second and thIrd are, In large measure, sImply restatements of the first. They represent perhaps dIfferent ways of charactenzIng the gnevor' conduct as unacceptable But however many dIfferent ways It may be descnbed as such frankly adds lIttle to the clear and undemable Impropnety of the gnevor's conduct. In that regard, I also note that the contents of many of the polIcIes referred to are merely restatements of the same pnncIples and concerns whIch would lead to the conclusIOn (even wIthout any formal polIcIes addressIng the pOInt) that the gnevor's conduct was unacceptable I wIll, however make one comment In relatIOn to the InVOcatIOn of the Workplace DISCnmInatIOn and Harassment PreventIOn ("WDHP") PolIcy It IS not necessary for me to decIde the formal breadth of that polIcy and, In partIcular whether It IS restncted to addressIng conduct whIch IS contrary to the provIsIOns of the Human Rights Code It undoubtedly captures such conduct and perhaps more But the eVIdence before me IS clear - and Indeed Mr Laird candIdly conceded the pOInt - the gnevor' s conduct was not a functIOn of CO CassIbo's gender ThIS was not a case of sexual harassment or dISCnmInatIOn whIch mIght, on that basIs, have been caught by the WDHP polIcy or by the Human Rights Code or other legIslatIve provIsIOns of general applIcatIOn. ReturnIng then to Mr Laird's delIberatIOns, It IS clear that a sIgmficant factor In hIS mInd was hIS assessment of the gnevor's credIbIlIty and, In partIcular hIS conclusIOn that the gnevor was less than honest at the allegatIOn meetIng held on May 30 2003 I have already IndIcated why I find that conclusIOn to have been Incorrect. Mr Laird based hIS conclusIOn on what he descnbed as dIffenng verSIOns wIth respect to "pause/hesItatIOn" proffered by the gnevor - that there was no hesItatIOn mentIOned In the occurrence report, that It was then acknowledged In the InVestIgatIOn IntervIew and finally demed agaIn at the allegatIOn meetIng. I have already determIned that there was no such pause Mr Laird's conclusIOns about the gnevor's lack of candour In thIS regard are based vIrtually exclusIvely on the latter's one word utterance at the InVestIgatIOn IntervIew There IS, of course no InCOnsIstency on thIS pOInt between the verSIOn offered In the occurrence report and the 20 allegatIOn meetIng. And to seIze on a sIngle word dIvorced from the context of the entIre protracted InVestIgatIOn IntervIew IS sImply not an appropnate basIs to found the conclusIOn of dIshonesty on the gnevor's part. I have however clearly IndIcated that the gnevor's ImtIal verSIOns of events (in hIS occurrence report and at the start of the InVestIgatIOn IntervIew) were less than entIrely accurate or candId But, as I have also concluded earlIer by the end of the InVestIgatIOn IntervIew (some two months pnor to the dIscharge and certaInly well In advance of the allegatIOn meetIng) the gnevor had provIded a full and candId verSIOn of the events as they transpIred and hIS role In them It IS for these reasons that I have concluded that the gnevor's lack of candour was neIther as protracted nor as sIgmficant as the employer concluded. There are other aspects ofMr Laird's conclusIOns whIch I find dIfficult to square wIth the eVIdence before me Mr Laird concluded that the gnevor faIled to demonstrate any remorse The eVIdence, however suggests the contrary The gnevor apologIzed almost ImmedIately and subsequently took advantage of every opportumty to express hIS remorse It IS unclear to me on what basIs Mr Laird chose to dIscount or Ignore those expreSSIOns The gnevor also made efforts, through the umon presIdent, to meet wIth and offer a more formal apology to CO CassIbo Based on those events and on the gnevor's demeanour whIle repeatIng those sentIments In hIS eVIdence, I am satIsfied that these expreSSIOns were genUIne I note as well that conclusIOn IS consIstent WIth Dr McDermott's conclusIOns about the authentIcIty of the gnevor's expressed feelIngs of shame and remorse I am also at paInS to understand what accounts for the sceptIcIsm ofMr Laird (and others) In relatIOn to the way In whIch the gnevor opened the external sally port door Although Mr Laird later qualIfied the statement, he suggested he belIeved the gnevor's hand was on not in the door at the relevant tIme and that a "normal person" would not put hIS hand "In the door" to open It. I have already descnbed the mechamcs of how the gnevor opened the door - he dId It In a fashIOn whIch stnkes me as perfectly natural - partIcularly for someone whose other hand was occupIed, holdIng hIS lunchbox/cooler Nor as I have already concluded, IS It apparent to me (as 21 Mr Laird suggested) that the mechamcs of the movements necessItated a pause or any sIgmficant hesItatIOn on the gnevor's part. FInally on these mIscellaneous pOInts, I am also troubled to some extent by the factors Mr Laird chose not to consIder He had never seen and took no opportumty to peruse the sally port and, In partIcular the door In questIOn to assIst hIm In hIS assessment of the gnevor's verSIOn of events SImIlarly I am also somewhat troubled that the employer took no steps to seek the Input of any managenal representatIve to comment on the gnevor's employment hIStOry and character And whIle thIS IS not a cntIcal pOInt (Mr Laird dId reVIew the gnevor's personnel file), the employer would have undoubtedly been a better posItIOn to assess the appropnate employment fate of the gnevor had It been possessed of the authontatIve first-hand type of InfOrmatIOn one of many supervIsors would have had about the qualIty of the gnevor's contnbutIOn to the enterpnse There IS one further aspect ofMr Laird's assessment whIch must be noted and to whIch I shall return later In determInIng the prospect of the gnevor's contInuIng employment, Mr Laird IndIcated that he had concerns about the gnevor's abIlIty to satIsfy hIS employment oblIgatIOns In partIcular he expressed the VIew that the gnevor's conduct was InCOnsIstent WIth the employer's abIlIty to trust hIm to perform some of the basIc reqUIrements of the CO posItIOn to be able to exerCIse sound qUIck Judgment, to use the mImmal reasonable amount of force dIctated In dIfficult cIrcumstances, I e to exercIse good Judgment and to ensure that any use of force was reasonable and not exceSSIve In the CIrcumstances He also suggested that to have perceIved a fellow CO as a threat demonstrated that the gnevor's Judgment was askew As a result, he questIOned whether or the gnevor would be able to command the trust reqUIred from hIS co-workers The grievor's employment history As of the date of the IncIdent, the gnevor had been a CO for over twelve years His accomplIshments dunng that penod of tIme are legIOn. Among them, he was a member and team leader of the InstItutIOnal CnsIs InterventIOn Team (ICIT) a traIned escort officer a certIfied AMS traIner a member of the Mimstry' s ceremomal umt, had completed a professIOnal 22 development program related to the handlIng of mentally III offenders and, shortly before the IncIdent, was to commence traInIng to become a "use of force Instructor" His file dIscloses at least SIX separate occasIOns upon whIch hIS performance was determIned to be worthy of the wntten commendatIOns prepared by managenal representatIves, most often by the (then) Supenntendent of the Windsor JaIl, Donna Cornwall As I have already detaIled, the gnevor's performance was ObvIOusly sufficIently ImpreSSIve to permIt the employer to repose the reqUIsIte trust In hIm to assIgn hIm the supervIsory posItIOn of ActIng OM 16 for a penod of some four years Even the sIngular negatIve notatIOn on hIS file speaks to posItIve qualItIes relevant to the present proceedIngs In September 2000 the gnevor receIved a dIscIplInary letter of repnmand In relatIOn to an error he had made In reVIeWIng an Inmate file Although dIscIplIne was Imposed, the employer was satIsfied that thIS was an Isolated IncIdent and the Supenntendent felt compelled to remark on the gnevor's "honesty and acceptance of responsIbIlIty admISSIOn of error" qualItIes whIch, I belIeve, the gnevor has by and large demonstrated before me (I note, of course, that the employer dId not seek to rely on thIS dISCIplIne to support the termInatIOn.) The gnevor has never preVIOusly been Involved In or been the subJect of any InVestIgatIOn pertaInIng to any alleged Improper use of force Decision The Issues before me are relatIvely straightforward I need not determIne whether the gnevor's conduct was worthy of dIscIplIne he and the umon concede that pOInt. I must determIne, however whether In all the cIrcumstances, the penalty Imposed was appropnate If so the gnevance must be dIsmIssed. If not, I must then determIne what the appropnate penalty ought to be and, In that context, I must also consIder the employer's submIsSIOns that the gnevor be provIded WIth a remedIal alternatIve to reInstatement or as a final alternatIve, that If he IS to be reInstated It be subJect to certaIn condItIOns And Just as the Issues are relatIvely straightforward, there IS SImIlarly no controversy between the partIes as to the legal context In whIch these Issues are to be resolved. EssentIally 23 whIle the partIes dIsagree as to the ultImate appropnate dISposItIOn of the matter neIther of them questIOns my JunsdIctIOn or authonty to do any or all of the thIngs they have urged me to do The partIes filed numerous authontIes In support of theIr respectIve posItIOns As there are no pure legal Issues In dIspute and as the cases are all capable of beIng more or less readIly dIstIngUIshed on the basIs of theIr partIcular facts, I have found the caselaw to be of great assIstance In settIng the general parameters of my InqUIry but, otherwIse, of lIttle dIrect specIfic applIcatIOn. I wIll, however refer to one of the cases submItted SInce It IS frequently cIted as provIdIng a (non-exhaustIve) taxonomy of the factors arbItrators should take Into consIderatIOn when decIdIng whether or not to exerCIse the power to mItIgate a dIscIplInary penalty They are lIsted In ArbItrator RevIlle's decIsIOn In Re United Steehwrkers of America, Local 3257 and the Steel Equipment Co Ltd (1964), 14 L AC 356 at p 357 et seq 1 The prevIOus good record of the gnevor 2 The long servIce of the gnevor 3 Whether or not the offence was an Isolated IncIdent In the employment hIStOry of the gnevor 4 ProvocatIOn 5 Whether the offence was commItted on the spur of the moment as a result of a momentary aberratIOn, due to strong emotIOnal Impulses, or whether the offence was premedItated 6 Whether the penalty Imposed has created a specIal economIC hardshIp for the gnevor In lIght of hIS partIcular cIrcumstances 7 EVIdence that the company rules of conduct, eIther unwntten or posted, have not been umformly enforced, thus constItutIng a form of dISCnmInatIOn 8 CIrcumstances negatIVIng Intent, e g. lIkelIhood that the gnevor mIsunderstood the nature or Intent of an order gIven to hIm, and as a result dIsobeyed It 9 The senousness of the offence In terms of company polIcy and company oblIgatIOns 24 10 Any other CIrcumstances whIch the board should properly take Into consIderatIOn, e g. (a) the faIlure of the gnevor to apologIze and settle the matter after beIng gIven an opportumty to do so It may be useful to bnefly reVIew the applIcatIOn of these consIderatIOns to the case at hand. It IS clear however that the vast maJonty of them (although, In fairness and perhaps not unlIke the multIple grounds for dIscharge, many of these consIderatIOns duplIcate each other In the CIrcumstances of our case) mIlItate In the gnevor's favour and only one clearly pOInts In the OpposIte dIrectIOn. The only pnor dIscIplIne on the gnevor's record IS a mInor sanctIOn upon whIch the employer places no relIance I have already detaIled how even In dIscIplImng the gnevor the employer chose to praise hIm The gnevor has a sIgmficant amount of servIce to hIS credIt. There IS no questIOn that thIS IncIdent IS an Isolated one In the gnevor's employment hIStOry The umon was exceedIngly careful not to descnbe CO CassIbo's conduct as amountIng to provocatIOn. That cautIOn In relatIOn to another one of ItS members IS at least understandable If not warranted. And there IS no doubt that CO CassIbo IS the chIef vIctIm In the pIece At the same tIme, however her conduct, whIle In no way even begInmng to approach the Impropnety of the gnevor's, was not entIrely neutral The umon asserted that despIte a lack of formal provocatIOn, one could see CO CassIbo's conduct as a "stImulus" to help to understand the nature of the gnevor's response Frankly I am InclIned to be slIghtly less chantable In relatIOn to CO CassIbo's conduct. The employer suggested that the gnevor' s conduct crossed the lIne from horseplay Into more senous conduct. There can be no dISputIng that. But the employer also suggested that CO CassIbo's conduct - her kIckIng of the door - was a mere extensIOn of the horseplay whIch had preceded that actIOn. It was, but wIth potentIally much more senous consequences CO CassIbo's forceful kIck of the door In CIrcumstances where InJury could result was more than mere horseplay I do not mean to suggest that there was any Intent to cause InJury on her part - there clearly was not - but her conduct was reckless In the CIrcumstances and, I belIeve, was worthy of some mInor dIscIplIne In those cIrcumstances, whether or not her conduct ought properly to be charactenzed as 25 provocatIOn, I see It as proVIdIng a context for the assessment of the gnevor's response The sItuatIOn IS perhaps best summed up In the exchange between the two ImmedIately after the slap reported generally as a vanatIOn on he said "You almost got my fingers caught In the door" she said "That doesn't mean you can hIt me" The gnevor's offence was not premedItated. Rather It was commItted on the spur of the moment, a momentary aberratIOn related to a strong emotIOnal Impulse I accept that he genuInely felt physIcally threatened (even though CO Cassibo had no correspondIng delIberate Intent to InJure) and belIeved that he had narrowly escaped InJury I also accept that there was some obJectIve baSIS (agaIn, even despIte CO CassIbo's lack of Intent to InJure) for that feelIng and belIef There was eVIdence, whIch I have not detailed here to suggest there was clearly an economIC Impact as a result of the dIscharge Whether or not that amounts to "specIal economIC hardshIp" thIS factor certaInly does not weIgh agaInst the gnevor I have detaIled some of the eVIdence whIch suggests dIfferentIal treatment In two respects The gnevor' s dIscharge was based, In small part, on hIS faIlure to prepare a tImely occurrence report, an IdentIcal offence whIch went undIscIplIned In the other two partIcIpants However In VIew ofMr Laird's eVIdence on thIS pOInt, I do not attach much sIgmficance to thIS More Important, IS the employer's faIlure to Impose any dIscIplIne at all on CO CassIbo for her part In the events I do not mean to suggest that the level of appropnate dIscIplIne for CO Cassibo's conduct would have been remotely close to the level of dIscIplIne the gnevor's conduct warranted, but the faIlure to Impose any dIscIplIne at all suggests to me a type of Inappropnate dIfferentIal treatment. I have had much to say already about the gnevor's Intent His conduct, though ObVIOusly not premedItated, was clearly IntentIOnal His reactIOn, however was more In the nature of a reflexIve reactIOn, a poor one Indeed. The one factor whIch clearly mIlItates agaInst the exerCIse of dIscretIOn to modIfy the penalty IS the senousness of the offence I wIll return to thIS pOInt. 26 I am satIsfied that the gnevor apologIzed promptly and made further repeated efforts to formalIze that process There IS but a sIngle factor whIch provIdes some pause to my delIberatIOns, whether In respect of the exerCIse of my dIscretIOn to alter the penalty or In relatIOn to the employer's alternatIve submIssIOn that, even If the Imposed penalty IS determIned to be too severe, the gnevor ought not to be reInstated. That IS the senousness of the gnevor's conduct. For the employer that Issue translates Into ItS submIssIOns that the gnevor's conduct eIther warrants dIscharge or alternatIvely should be seen as elImInatIng the real possIbIlIty of reInstatement. The employer's posItIOn IS premIsed on the umque nature of the correctIOns envIronment and exactIng demands of the posItIOn of CO COs operate In a hostIle envIronment and have to Insure order wIthIn the InstItutIOn. TheIr dutIes Include the control and dIscIplIne of Inmates In order to protect other Inmates and fellow staff from physIcal harm They can be called upon to control rebellIous and dIsturbed Inmates In CIrcumstances where the use of reasonable and appropnate force may be reqUIred. The employer must be able to trust that ItS employees wIll exerCIse appropnate Judgement - sometImes to be formulated In a splIt second - to use a reasonable amount of force, and no more, In the CIrcumstances SImIlarly fellow employees must trust that the appropnate Judgement wIll be used In CIrcumstances where they may be In need of "back up" It IS not surpnSIng that the gnevor's conduct may have gIven nse to these types of concerns I am satIsfied, however that these concerns are InSUfficIent to warrant sustaInIng the gnevor's dIscharge or to otherwIse preclude hIS reInstatement to employment. I come to that conclusIOn for a number of reasons First, In assessIng the nature of the gnevor's conduct, It IS not entIrely apparent to me that It necessanly reflects on hIS abIlIty to properly dIscharge hIS employment oblIgatIOns In that regard, I am not persuaded that the employer's assertIOn that the gnevor's response to hIS co-worker should necessanly be taken as an IndIcator of hIS lIkely or possIble future response to an 27 Inmate In that context, I note that the IncIdent In questIOn transpIred at the end of a ShIft removed from the Inmate area of the InstItutIOn and whIle the gnevor was leavIng the JaIl ThIS was not a more tYPIcal work CIrcumstance where the gnevor was or needed to be prepared to at a moment's notIce, deal wIth an unruly Inmate In that respect, the CIrcumstances may be generally more comparable to those cases referred to by the umon outsIde the correctIOns context than to those cases cIted by the employer whIch related dIrectly to the care and control of Inmates More Importantly however whIle the gnevor' s conduct may legItImately have gIven the employer some pause, there are sImply too many other IndIcators whIch serve to reduce those concerns The gnevor's long hIStOry of stellar performance, the absence of any remotely comparable type of IncIdent over a penod of a dozen years coupled wIth my conclusIOn that hIS remorse and efforts to apologIze all suggest that any sImIlar reoccurrence IS not lIkely I am also Impressed by the acknowledgement of both COs CassIbo and Denhartogh that, at least pnor to the IncIdent, they each had sIgmficant regard and respect for the gnevor and both acknowledged the uncharactenstIc qualIty of the gnevor's conduct on that day Finally I am buttressed In my conclusIOn by the assessment of Dr McDermott, a seasoned health care professIOnal wIth partIcularly relevant expertIse, of the gnevor's posItIve chances for successful "repatnatIOn" The gnevor commItted an extremely senous transgressIOn for whIch he must suffer sIgmficant consequences I am not persuaded, however that thIS error warrants the end of an otherwIse promISIng career The gnevor has demonstrated, over a sIgmficant penod of tIme, a clear abIlIty to make a valuable contributIOn to the enterpnse He should be afforded the opportumty to demonstrate hIS contInuIng abIlIty to do so I am satIsfied, In the cIrcumstances, that a suspenSIOn of one month IS the appropnate penalty for the gnevor's transgressIOn. ThIS modIfied penalty wIll be condItIOnal upon the gnevor completIng hIS efforts to proffer a full apology to CO CassIbo He IS to prepare a wntten apology acceptIng responsIbIlIty for hIS actIOns, to be delIvered to her He may seek whatever assIstance he feels appropnate In draftIng the apology Further but only If CO CassIbo consents, he IS to delIver thIS apology personally In a meetIng whIch the employer and the umon wIll no doubt facIlItate 28 (perhaps even, should the partIcIpants consent, WIth the partIcIpatIOn of an acceptable thIrd party) In order to begIn to repair that relatIOnshIp I have not Ignored the concerns expressed by CO Cassibo regardIng workIng wIth the gnevor In the future As of the date of provIdIng her testImony to the Board, CO CassIbo had yet to return to her posItIOn at the Windsor JaIl, she was workIng, apparently on a temporary basIs, In a dIfferent posItIOn and locatIOn wIthIn the Mimstry It may be, however that she has now or wIll, at some near future pOInt, return to her posItIOn at the Windsor JaIl In contemplatIOn of that possIbIlIty I dIrect that, subJect to CO CassIbo's abIlIty to Waive or termInate thIS reqUIrement, the gnevor and CO Cassibo not be scheduled to work together on the same ShIft for a penod of one year from the date of the gnevor's reInstatement. To the extent that thIS reqUIrement generates any Inconvemence or dIsadvantage, that Inconvemence or dIsadvantage IS to be borne by the gnevor It IS my hope that both the gnevor and CO CassIbo wIll make every reasonable effort to rebUIld theIr relatIOnshIp and to recapture the fnendly and productIve dealIngs they prevIOusly had. But I make no dIrectIOn In relatIOn to CO CassIbo In that regard. SubJect to the foregoIng and to the extent set out, the gnevance IS allowed. The gnevor's dIscharge IS to be replaced wIth a one-month suspenSIOn. He IS to be reInstated to hIS home posItIOn WIth compensatIOn (subJect to the suspenSIOn and to the usual lImItatIOns regardIng mItIgatIOn) wIthout loss of semonty or benefits I shall remaIn seIzed wIth respect to any Issues ansIng from the ImplementatIOn of my award. Dated at Toronto thIS 24th day of February 2005 "~.~J4 ~L~~~~l: .~ -. Bram HerlIch Vice-Chair