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Home My WebLink About2014-4074.Paplinskie.18-02-28 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2014-4074; 2016-0531 UNION# 2014-5112-0268; 2016-0247-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Paplinskie) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Michael V. Watters Arbitrator FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Roslyn Baichoo Treasury Board Secretariat Legal Services Branch Senior Counsel HEARINGS May 24, May 30, June 14, June 15, July 13, December 20, 2017 -2- DECISION [1] The grievor’s employment as a Correctional Officer (CO) at the Brantford Jail was terminated effective March 11, 2016. The letter of termination of the same date, which was signed by the institution’s Superintendent, Ms. Lisa O’Brien, set out the following grounds for the Employer’s decision: “1) That on November 4, 2015, you did not make complete or accurate log book entries. 2) That on November 4, 2015, you did allow a special management inmate access to a general population unit. 3) That on November 4, 2015, you did fail to report that an inmate in your care was in possession of contraband. 4) That on December 10, 2015, you did hand an institutional security key to an inmate.” [2] A grievance contesting the termination was filed on April 8, 2016. The issue in this proceeding is whether the termination should be upheld or whether some lesser penalty should be substituted in its place. [3] The following witnesses presented evidence on behalf of the Employer: John Marshall - Since May, 2017, Mr. Marshall has been the Assistant Manager, Customized Training for Institutional Services at the Ontario Correctional Services College (OCSC). Prior to assuming this position, he was the Team Leader for the Correctional Officer Training and Assessment Program (COTA) at the OCSC. In the periods 2006-2008 and 2013- 2014, Mr. Marshall served as the Senior Staff Development Officer for the COTA Program. While working directly with the COTA Program, Mr. Marshall was responsible for the development and updating of the curriculum and for the effective delivery of training to new hires. Mr. Marshall, over the course of his career, has held a variety of positions at the Brantford Jail including Shift Supervisor, Scheduling Manager, Training Manager, Security Manager, Staff Services, Deputy Superintendent and Acting -3- Superintendent. He was not working there at the time of the events material to the instant grievance. Mr. Marshall has worked in the Ontario Public Service since 1993; Logan Ernst - Mr. Ernst worked as a CO at the Brantford Jail between March, 2014 and April, 2017. At the time of the incident involving the institutional security key, he was on a fixed-term contract. He subsequently became a full-time employee in September, 2016. As of the date of his evidence, Mr. Ernst was a cadet at the Ontario Police College; and Lisa O’Brien - Ms. O’Brien is currently the Deputy Director of Institutional Services for the Western Region. She served as the Superintendent of the Brantford Jail during the time-period relevant to this dispute. After consulting with others, Ms. O’Brien made the decision to terminate the grievor’s employment. Ms. O’Brien has previously worked as a CO, an Operations Manager and a Deputy Superintendent. Her career in Corrections spans some twenty-five (25) years. [4] The grievor was the sole witness called to present evidence on behalf of the Union. He is forty-three (43) years of age and graduated from High School in 1993. Thereafter, he was trained as a professional driver and worked for several companies as a truck driver between 2000 and 2008. After receiving training at the OCSC, the grievor commenced his correctional career in December, 2008 as a fixed-term CO at the Metro West Detention Centre. He became a permanent employee in 2010 and stayed at the aforementioned facility until its closure in 2014. The grievor then moved to the Toronto South Detention Centre. He subsequently transferred to the Brantford Jail in March, 2015. [5] The grievor has two (2) children: a son age sixteen (16) from a prior relationship and a daughter age ten (10) from his marriage. He is now separated from his wife. The grievor’s personal circumstances will be addressed in greater detail later. [6] The Brantford Jail was built in 1852 and was renovated in 1980 to add extra units. I was told during closing argument that the facility was recently closed. Previously, it -4- operated as a maximum security institution with a capacity to house between eighty (80) and one hundred (100) male inmates. The Brantford Jail had a significant number of indigenous inmates given its close proximity to the Six Nations Reserve. [7] For purposes of this Decision, I have anonymized the names of the inmates involved. It is also unnecessary to describe any of the following at length: the layout or floor plan of the areas relevant to this dispute; the nature of the security keys in the possession of CO Ernst and the grievor; and what areas of the Brantford Jail these keys would provide access to. [8] On November 4, 2015, the grievor worked the day shift with extended overtime and was assigned responsibility for Unit 3 and Unit 4, the latter being the Protective Custody Unit. It is undisputed that during the course of the shift, inmate A, an indigenous inmate, showed him a necklace that he had inside the cell in Unit 4. The necklace was made out of cloth or string removed from institutional bedding and had two (2) adult central incisor teeth sewn into it. Inmate A advised the grievor that the embedded teeth were those of a family member and that he had possessed them for a lengthy period of time. It is apparent on the facts that the grievor believed the necklace was a cultural artifact or heritage keepsake. It was his evidence that he did not then think there was anything wrong with inmate A having the necklace in his cell. The grievor, accordingly, did not take the necklace away from inmate A, nor did he immediately report the observation and exchange. [9] Ms. O’Brien advised that inmates are not generally permitted to retain items they bring into the institution, subject to limited exception such as glasses, dentures and prosthetics. Any items approved for inmate retention are logged onto the Personal -5- Property Declaration form kept in the Admitting and Discharge (A. and D.) office. Additionally, they are noted on the inmate’s unit notification card stored at the Officer Station for the assigned post. Ms. O’Brien further noted that any request by an indigenous inmate to retain a cultural artifact would be considered in consultation with the Chaplain or the Native Institutional Liaison Officer. She stated that if an inmate, such as inmate A, claimed an item to be a cultural or religious artifact, then the CO involved should follow- up to ensure it was logged onto the Personal Property Declaration form and/or the unit notification card. Additionally, she suggested that the CO could speak to the Sergeant on shift. Ms. O’Brien considered it material that the grievor, in this instance, failed to pursue any of these options. She noted that, on her review, the Personal Property Declaration form disclosed that inmate A was not approved to retain anything in his cell. Ms. O’Brien was asked whether, from her knowledge and experience, a necklace with teeth embedded into it would be authorized for inmate retention. I recorded her answer as, “I’ve never seen it in twenty-five years”. [10] Ms. O’Brien expressed the opinion that “some kind of flag should have gone up” when the grievor was shown the necklace, so as to impress upon him the need for appropriate follow-up. She observed that if such action had been taken, the grievor would likely have discovered on November 4, 2015 that the teeth, which formed part of the necklace, were not those of a family member but, instead, were those of inmate C, another inmate housed in Unit 4, who had earlier been the victim of a serious assault by inmate A. [11] As mentioned above, the grievor believed the necklace shown to him by inmate A was a cultural artifact or heritage keepsake. He maintained it was his experience that -6- indigenous inmates at the Brantford Jail were permitted to retain such items. He referenced a search of Unit 5 that occurred shortly after he started working at the institution. He recalled that during the search a dream catcher was found hanging from the bars in one (1) of the cells. It was the thrust of the grievor’s evidence that the Security Manager instructed him to leave it there rather than remove it, as to do the latter would cause more problems. The grievor further testified that, after being so directed, he checked the unit notification cards for the inmates in the cell and discovered that no personal items had been approved for retention. The grievor agreed that, in this instance, he did not engage in such a check and acknowledged that he should have done so. He also accepted the suggestion that a CO must be alert so as not to be “conned” by an inmate. [12] The grievor added that he also observed items such as bracelets, belts and jewellery boxes, all constructed from institutional bedding, in the cells. He stated that his practice was not to remove items of this nature based on the prior direction of the Security Manager and on the advice or suggestion from other staff. In cross-examination, the grievor agreed that he had never previously seen human teeth incorporated into any “inmate made item”. The grievor observed that the practice at Brantford Jail was at variance with what occurred at the Toronto South Detention Centre while he was employed there. He stated that at the latter site, similar items would routinely be removed. [13] The grievor advised Ms. O’Brien at the Allegation Meeting held on February 18, 2016 that Sergeants and other staff instructed him to leave items, such as those referenced above, in the cells of indigenous inmates. Ms. O’Brien could not recall that the grievor gave her the name of the Security Manager who allegedly provided him with -7- the early direction not to remove these items. She viewed what he told her as more of a “general statement” and believed that she would have recorded a name in her notes if one had been specifically mentioned. Ms. O’Brien acknowledged that she did not ask the grievor to provide any names. Ultimately, she characterized this aspect of the grievor’s response as an effort to minimize what had occurred. I note that the Security Manager, whose name was provided during the course of the grievor’s evidence, was not called by either party to testify. [14] In summary, Ms. O’Brien considered that the necklace with the embedded teeth constituted contraband which should have been taken from inmate A on November 4, 2015. In contrast, the grievor believed at that time that inmate A was entitled to retain the necklace in his cell in accordance with his understanding of the practice at the Brantford Jail. With the benefit of hindsight, the grievor acknowledged that he had made a mistake. In this regard, he commented as follows: “If I saw something that I felt was contraband, I’d write reports even if I was told by the Shift I.C. that it was allowable”. [15] Almost immediately after the grievor was shown the necklace, inmate A asked him if he could show the item to his uncle, inmate B, who was housed in Unit 3, the General Population Unit. When the grievor questioned inmate A as to why he wanted to do that, he replied that he wanted to show his uncle the teeth of a family member. The grievor in his evidence stated that inmate A told him that the teeth belonged to his late grandfather. In any event, the grievor next proceeded to escort inmate A to the grill area of Unit 3. He stressed that he had inmate A stand against the opposite wall so that he could not pass anything into the Unit. The grievor stated that while there, he positioned himself between inmate A and the grill to Unit 3. He recalled that there was a brief verbal exchange -8- between inmate A and inmate B and that he then escorted inmate A back to Unit 4. To be clear, inmate A was never allowed actual access into Unit 3. It would appear from a review of the Ground Floor Plan for the Brantford Jail that the distance between the two (2) Units was not great. [16] The grievor explained in cross-examination that he did not reject inmate A’s request, as he felt some “empathy” for him, as he wanted to show inmate B the necklace embedded with the teeth of his grandfather. In the grievor’s words, “I thought for a brief moment it would be okay”. He conceded that he took inmate A at his word to the effect inmate B was his uncle. He still did not know if that was true as of the date of his evidence. The grievor acknowledged that the movement in question was not “a walk past Unit 3”. Rather, it was a visit in which words were exchanged and the necklace was displayed. Based upon what he learned after the fact, the grievor agreed that inmate A was, in effect, “showing off a trophy” and that the inmate pulled one over on him. The grievor testified that he now realizes that he made a mistake and asserted that it would not happen again going forward. [17] Ms. O’Brien advised that inmate A was housed in Unit 4, the Protective Custody Unit, as he was a special management inmate. That category of inmate includes one who requests or requires protection from other inmates. They are housed separately from inmates in Unit 3, the General Population Unit. I was not told the specific reason for why inmate A was housed in Unit 4. Ms. O’Brien testified that special management inmates and general population inmates are not to mix. It was her evidence that the escort of inmate A to Unit 3 amounted to a violation of the Standing Orders of the Brantford Jail. The Standing Orders contain the following provisions: -9- “4.6 General Population: Refers to the group of inmates that do not require specific placement or special housing location for treatment such as segregation (e.g., medical isolation), protective custody, suicide watch or special needs units. 4.12 Protective Custody: The separation of an inmate from the general population where the inmate requests or requires protection from other inmates. These inmates are housed in a separate unit from those inmates housed in general population. 4.14 Special Management Inmate: An inmate who requires special care services, including physical, mental and social care (i.e., those whose behavior or potential behavior could be harmful to the inmate or others which may require minimal contact with other inmates). Examples of special management inmates: 4.14.6 an inmate requiring protective custody (e.g., known enemies in the institution, notorious or heinous offence, a known informant, crown witness etc.);” [18] Ms. O’Brien expressed concern that the escort enabled inmate A to show to other inmates in Unit 3 what amounted to “trophy teeth”. From her perspective, it allowed this inmate to alert the general population that he had committed a serious assault and to thereby enhance his status within the inmate hierarchy and culture. In Ms. O’Brien’s words, the grievor’s actions provided inmate A with the opportunity to obtain a form of “bragging rights”. She also claimed that the circumstances around the escort had the potential to undermine the inmates’ view of the grievor as a CO. Ms. O’Brien made the following observation on this point: “They would all know that what took place wasn’t right”. [19] Ms. O’Brien acknowledged that the grievor did not permit inmate A to enter Unit 3. She, nevertheless, maintained that the escort amounted to a real security concern. Ms. O’Brien advised that she had never experienced a similar situation where an inmate was escorted from Unit 4 to Unit 3 to show off an item. She distinguished the escort in issue from those occasions where Unit 4 inmates were escorted past Unit 3 in order to get to -10- the Exercise Yard, a visit, or to A and D. Ms. O’Brien emphasized that in the latter type of escort, inmates would not be permitted to stop at Unit 3 “to chat”. [20] Inmate C returned from Court on November 5, 2015 and was supposed to be taken back to Unit 4. While being escorted to that Unit, inmate C told the grievor that he could not return there. On returning to A. and D., inmate C told another CO that he had been assaulted on Unit 4 and that two (2) of his teeth had been knocked out. It was quickly determined that inmate A was the perpetrator of the assault. The grievor testified that he realized right away that inmate A had lied to him and that the teeth embedded in the necklace were not, in fact, those of his grandfather. He stated that he then knew he had made a mistake and that inmate A had “pulled the wool” over his eyes. The grievor indicated in his evidence that he was embarrassed that he had not “picked up” on the prior day that inmate C had been assaulted by inmate A in Unit 4. [21] Following the above revelation, the grievor and several other COs went to Unit 4 and escorted inmate A back to A. and D. where he was secured in an empty cell. At that juncture, Sergeant S. Bartolo was called to attend the area. In short order, the misconduct process was initiated and inmate A was transferred to the Elgin Middlesex Detention Centre later that day. [22] During his discussion with Sergeant Bartolo on November 5, 2015, the grievor informed him that he had seen the necklace on the prior day when working in Unit 4. In response to a question from the Sergeant, he explained why he had not taken the item away from inmate A at that time. Sergeant Bartolo’s Occurrence Report documenting the exchange records that the grievor “felt bad” and knew that he had “fucked up”. -11- [23] The grievor filed an Occurrence Report on November 5, 2015 about the events that had transpired that day. At the direction of Sergeant Bartolo, he also submitted a second Occurrence Report dated November 12, 2015 which documented his interactions with inmate A on November 4, 2015. Both of the aforementioned reports were somewhat lengthy and were prepared in a detailed fashion. In cross-examination, Ms. O’Brien agreed that, “once the alarm bells went off”, the grievor was candid about what had occurred. [24] Ms. O’Brien engaged in an independent review of the Log Book. Excerpts therefrom for the period Sunday, November 1 to Saturday, November 7, 2015 were filed as an exhibit in this proceeding. Ms. O’Brien observed that the grievor had not reported therein that he had been shown the necklace on November 4th and that he had escorted inmate A from Unit 4 to Unit 3. She referenced the following additional Log Book errors made by the grievor on that day: i) at 1328 hours, an inmate returning from Court was added to the wrong count. More specifically, he was improperly added to the Unit 4 count when, in fact, he was earlier taken from Unit 3 for the Court attendance. Ms. O’Brien noted that the inmate should have been added to the Unit 3 count upon his return. She observed that both of the unit counts were rendered incorrect as a consequence of this error; ii) at 1410 hours, inmate C returned from Court. He was improperly added to the Unit 3 count when, in fact, he was returned to Unit 4; iii) at 1718 hours, two (2) inmates returned to Unit 3 from the Laundry Room. The grievor improperly added them to the Unit 4 count; iv) at 1801 hours, the grievor logged an inmate out to A. and D. to use the phone. He did not indicate what Unit the inmate came out of and failed to adjust the unit count. At 1810 hours, the same inmate returned to the Unit without any adjustment to the count; and v) at 1811 hours, the grievor made a notation in the Log Book. The Unit 3 count was increased from six (6) to ten (10), while the Unit 4 count was decreased from eleven (11) to nine (9). This entry served to increase the total count by two (2) inmates, that is, from seventeen (17) to nineteen (19). Ms. O’Brien focused on the grievor’s failure to indicate how the increase came about. She -12- determined from her review that there were two (2) inmates who had earlier returned from the Laundry Room but were not logged in by the grievor. [25] I note that at the Allegation Meeting, Ms. O’Brien referred the grievor to an entry made at 0630 hours on November 4, 2015 that was deficient in a number of respects. Apparently, the grievor did not dispute the entry at the time. Ms. O’Brien attributed this error to the grievor when she made the decision to terminate his employment. She later determined however, when preparing for this proceeding, that the entry was not, in fact, made by the grievor. In her words, this mistake “would not have made a difference” in her ultimate decision to dismiss. [26] Ms. O’Brien in her evidence spoke to the need for accuracy and detail with respect to Log Book entries. She testified that COs need to track inmate movement and activity, as well as to document both the unit and total counts. Ms. O’Brien stressed that COs must know, at all times, how many inmates they are responsible for. She observed that this need would be particularly acute in the case of an institutional emergency, such as a fire. Lastly, Ms. O’Brien noted that Log Books are legal documents and must be complete and accurate if required for an investigative or adjudicative purpose. [27] During the course of Ms. O’Brien’s evidence reference was made to the Institutional Services Policy and Procedures Manual (ISPPM) relating to Institution Logs and to the Standing Orders at the Brantford Jail on this subject. The latter source provides the following instruction to COs as to the maintenance and completion of Log Books: “2.4 the shift name, date, and assigned staff shall be printed at the top of each log page; 2.5 each entry shall be legible and include the time, disposition, comments or activity, and the signature of the person making the entry; -13- 2.6 a running count of inmates shall be maintained; if an employee is responsible for two or more areas, the counts for each area shall be indicated separately; 2.7 all routine activities and important occurrences and observations shall be recorded. The latter shall be drawn to the attention of supervisory staff and any employees assuming responsibility for the area or activity; 2.8 the names of all persons visiting the area or activity and the reasons for the visit shall be recorded; 2.9 all inmate movement shall be recorded, including the reasons for the movement, the names if practicable, and the escorting employee(s)”; I note that section 2.6 above replicates the substance of section 6.3.11 of the ISPPM. [28] During cross-examination, Ms. O’Brien was directed to numerous entries in the Log Book made by other COs. Her evidence with respect to same may be summarized as follows: i) Ms. O’Brien agreed that for certain shifts, the COs did not number the columns so as to indicate which Units the count related to. She observed that it would be a best practice to note the specific Units at the top of the page, so as to be able to track the number of inmates and their movement to and from the separate Units; ii) On one (1) page of the Log Book, no columns were drawn to show the count for each Unit and the total count. Ms. O’Brien explained that the page in question represented a night shift; iii) Ms. O’Brien advised that in the event of a small scale movement of inmates, their names should be noted in the Log Book with respect to both their exit from and return to the Unit. She agreed that several of the entries identified were not compliant with this aspect of the policy; iv) Ms. O’Brien acknowledged that on one (1) date, the CO on shift did not provide for a running count of inmates by Unit. Instead, they simply created a column on the page to show the total count. She added that not all COs employ a separate column to record total count. Ms. O’Brien agreed that such an approach would be in accord with policy, as long as the CO could calculate the total count from the separate unit counts; and v) Ms. O’Brien conceded that COs were not consistent with respect to how they made entries in the Log Book. As a partial explanation, she noted that the number of columns in the Log Book and its internal format is not predetermined or provided to COs in a standard form. -14- [29] The grievor acknowledged his errors with respect to the entries made at 1328 hours and 1410 hours on November 4, 2015. He further agreed that he did not adjust the count at 1801 hours and at 1810 hours when the inmate went to A. and D. to use the phone. The grievor explained that he left the inmate on the Unit 3 count, as they continued to be supervised by the Unit 3 CO and because A. and D. personnel had left the institution by that time of the day. During the course of his evidence, the grievor accepted that his Log Book entries were not perfect and that they should have been more accurate and descriptive. He testified that he understood the importance of Log Books as an institutional record and the consequent need for a detailed account as to the number of inmates by Unit and their movement to and from identified locations. [30] On December 10, 2015, both CO Ernst and the grievor worked the day shift at the Brantford Jail. CO Ernst was assigned as the Unit 1 and Unit 2 Officer. In this capacity, he was responsible, inter alia, for the following: Reception, the Visiting area, the Kitchen, two (2) lower level single cells, the access way to A. and D., and the Laundry Room. The grievor was assigned as the Unit 3 and Unit 4 Officer. His responsibilities that shift included the Work Range, the Exercise Yard and the Yard Box. It is common ground that during the course of the shift, the grievor handed an institutional security key to inmate D and allowed him to briefly retain same. The evidence of CO Ernst and the grievor with respect to this occurrence is set out below. [31] On December 10, 2015, inmate D was the sole inmate working in the Laundry Room. During the shift CO Kyle Prince, who was stationed in the A. and D. area, contacted CO Ernst and informed him that inmate D should proceed to A. and D. to receive methadone under the institution’s Methadone Program. At the time of the radio -15- contact, CO Ernst was in the Staff Office. The grievor was then close by. It was CO Ernst’s evidence that the grievor volunteered to get inmate D from the Laundry Room and that he, accordingly, gave the grievor the key to access that location. On all accounts, the key to the Laundry Room was relatively large and was positioned on a key ring with several other smaller security keys attached thereto. CO Ernst described the transfer of the key as “a hand to hand exchange”. [32] As the grievor left to go to the Laundry Room, CO Ernst proceeded to the A. and D. doorway so as to be able to “pick and catch” inmate D as he approached that area. CO Ernst explained that he would have to stop the inmate from entering A. and D. until the Registered Nurse on duty was prepared to administer the medication. He also had to ensure that the hallway inside of A. and D., leading to the cells where the Methadone Program was administered, was free of other inmates. CO Ernst testified that shortly after he reached the doorway, the grievor yelled to alert him that he was sending inmate D around the corner from the Laundry Room and into the hallway leading to the A. and D. area. I was informed that the door to the Laundry Room was just around a corner from the aforementioned hallway and that the distance between such corner and the door to A. and D. was relatively short. CO Ernst estimated that the distance was approximately the length of the hearing room used on the initial day of this case. He further estimated that the distance between the Laundry Room door and the hallway was about one-third (1/3) of the length of the hearing room. CO Ernst noted that the grievor employed a “verbal escort” technique pursuant to which he directed inmate D where to go, namely the A. and D. doorway, and then proceeded to follow the inmate from behind until they reached that destination. It is apparent that CO Ernst did not see the grievor and inmate D exit the Laundry Room given the configuration of the area. -16- [33] CO Ernst did observe inmate D enter the hallway and start to walk towards him at the A. and D. door. He then instructed inmate D to stop at the door as another inmate, who was getting methadone, was not then secure in one (1) of the cells used for the Methadone Program. CO Ernst testified that this other inmate was standing close to a desk in the interior A. and D. hallway. It is clear that inmate D complied with the instruction given. It was CO Ernst’s evidence that inmate D next stated, “look what he gave me”. CO Ernst then noticed that the inmate was holding the key to the Laundry Room in his hand. He indicated that, at that juncture, inmate D was standing about a foot (1') away from him. CO Ernst asserted that the inmate was not holding the key to the Exercise Yard, as that key was not on a ring as was the key to the Laundry Room. CO Ernst stated that he was “shocked” when he discovered inmate D was in possession of an institutional security key. He recalled that, at this point, the grievor was just down the hallway near the entrance to the Staff Office. CO Ernst testified that as the grievor approached him, the grievor said it was “a joke” and started to laugh. He responded by telling the grievor that he did not appreciate being put in that position. [34] On the evidence, the grievor proceeded to the A. and D. doorway, where both CO Ernst and inmate D were positioned, and retrieved the key from the inmate. He then handed the key back to CO Ernst. CO Ernst reiterated that the key the grievor took from the inmate and returned to him was the same key he had earlier transferred to the grievor, namely, the key to the Laundry Room. He advised that during this exchange the grievor told him to “relax”. [35] CO Ernst testified that he did not see the grievor initially give the key to inmate D. On his recollection of events, the inmate was in possession of the key for “no longer than -17- ten seconds”. CO Ernst did not recall the presence of other inmates in the hall leading to the A. and D. access door at the time of this incident. It was his understanding that the grievor’s actions on December 10, 2015 did not comply with either Ministry Policy or the Standing Orders of the Brantford Jail relating to Key Control. [36] CO Ernst prepared an Occurrence Report on December 12, 2015 with respect to what had transpired two (2) days earlier. I accept that his delay in so doing largely resulted from his sense of unease about “writing up” or “ratting out” a colleague. On my reading, the content of CO Ernst’s Occurrence Report conforms with the viva voce evidence he gave in this proceeding. It is also consistent with what he later disclosed to Ms. O’Brien during their meeting of December 18, 2015. [37] The grievor testified that CO Ernst gave him all of his keys, including the key to the Laundry Room, on the shift in issue. It was his evidence that on exiting the Laundry Room with inmate D, he was “moving keys around” in his pocket and that a single key fell out and landed on the floor. The grievor testified that inmate D then made a comment about his inability to hang onto the keys to which he replied, “If you can do a better job, you hold onto it”. The grievor acknowledged that he proceeded to pick up the key and gave it to inmate D. [38] There is some inconsistency in the evidence as to where the grievor dropped the key. He initially testified that it was dropped near the door to the Laundry Room. Some uncertainty, however, was created by the grievor’s Occurrence Report of December 22, 2015 (reproduced below) which suggested the key may have been dropped in the hallway outside of A. and D. Additionally, Ms. O’Brien recorded that at the Allegation Meeting, the grievor told her that when he dropped the key “he was in front of the kitchen door, -18- right by A. and D. where Logan was standing”. When confronted in cross-examination as to which version of events was correct, the grievor responded by answering that the key was dropped and then given to inmate D in close proximity to the Laundry Room. I accept that answer as accurate. It is material that CO Ernst in his evidence did not claim that he saw the key drop. In my judgment, he would likely have made such an observation if the drop had occurred in the hallway near to either the A. and D. or Kitchen doors. [39] As is apparent, there is a conflict in the evidence as to which key was given to inmate D. The grievor initially testified that it was the Yard key. In cross-examination, however, he agreed to the following: the key he retrieved from inmate D was the same key he returned to CO Ernst; and the key he returned to CO Ernst was the very key CO Ernst had originally given to him. The grievor further acknowledged that CO Ernst would not have given him the Yard key, as that key was in his possession and control. Ultimately, I am persuaded that the grievor handed inmate D the key to the Laundry Room. This is entirely consistent with CO Ernst’s recollection of the incident. I note the grievor’s comment in examination in-chief on this subject: “I keep replaying it over and over in my head and the way I recall it was a single key. I could be mistaken…By no means am I calling Logan a liar”. [40] The grievor explained that in relation to this incident, he was “just joking around”. He added that giving inmate D a security key was “a poor decision at best” and that it did not take long for him to realize that “it wasn’t an intelligent thing to do”. Counsel for the Union asked the grievor why he would engage in such conduct. I recorded his response as follows: “There were a lot of distractions in my life, not that that makes it any better by any stretch…………………..I made a poor judgment call and I apologize -19- not only for what I did but for putting Logan, not to mention the rest of management, in a position like that.” The grievor further explained that he told CO Ernst to relax, as he was embarrassed about having given the key to inmate D. [41] The grievor maintained that he understands it is very important for inmates not to have access to institutional security keys. In his words, “they should never handle or even see a key for any period of time”. The grievor acknowledged that his actions violated what he was taught at the OCSC and that things could have gone “horribly wrong”. I recorded the following exchange between counsel for the Union and the grievor: Question - “Looking back at this, what goes through your mind when you realize you gave an inmate a key?” Answer “Besides a whole lot of embarrassment, feel guilty for putting Logan, as well as the rest of staff, in an awkward position, not to mention a whole lot of anger and frustration towards myself.” [42] The grievor believed that there were two (2) other inmates in the hallway during the period inmate D was in possession of the key. He was not sure where they were either coming from or going to. In cross-examination, the grievor conceded that it would be worse to hand a key to an inmate in the presence of other inmates. While it is unnecessary to reach a firm conclusion on this issue, I am more inclined to prefer CO Ernst’s evidence. Given the detail in his Occurrence Report, I consider it likely that he would have reported the presence of other inmates if they were actually there in the hall at the material time. In the final analysis, I think it more likely than not that the grievor was simply mistaken. [43] The grievor’s initial Occurrence Report with respect to this incident, which was submitted on December 22, 2015, reads: -20- “On December the 10th 2015 I was assigned to a T6 Shift (0545 hours to 1815 hours) working in The Brantford Jail working the 3/4 Post. I was responsible for doing yard on this post. While there were no Offenders in the yard area I was standing in the hallway outside of Admitting and Discharge with a group of Offenders. I handed the yard key to one of the Offenders and he handed it right back to me. There were no Offenders in the yard at the time.” In cross-examination, the grievor agreed that he handed the key to inmate D near the Laundry Room and that he took it back from him just outside of the A. and D. area. [44] Ms. O’Brien subsequently required the grievor to file an Addendum to the above Occurrence Report. She asked for clarification on the following matters: the name of the offender who received the key; and why the grievor elected to hand the inmate a security key. The grievor’s Addendum dated January 8, 2016 reads: “On Friday January 8th 2016 I was assigned to a T9 shift (0845 hours to 2115 hours) in the Brantford Jail working the Singles post, I was asked to write an addendum to a report from December 22nd 2015 regarding Security Keys. I handed the key to Offender …#…for the sole purpose of a practical joke. The security key that was handed to Offender … was for the yard area and at the time there were no offenders in the area.” (Inmate’s name and number deleted) In cross-examination, the grievor testified that he identified the Yard key in both reports, as he thought at the time that this was the key he handed to inmate D. He insisted that he was not trying to make it “less wrong” by referencing the Yard key. The grievor further acknowledged that both reports were short and not completed in as much detail, as were his Occurrence Reports surrounding the events of November 4th and November 5th, 2015. I recorded his explanation as follows: “Just out of simple embarrassment. I knew what I’d done wasn’t right and I kept it short and to the point.” -and- -21- “I’d already put Logan in an uncomfortable spot as it was and just left my report short. I wasn’t trying to hide anything and that is why I admitted in both reports that I’d handed inmate…a key.” [45] Ms. O’Brien first became aware of this incident on Saturday, December 12, 2015. On that date, Sergeant M. Lowe contacted her to advise that CO Ernst had informed him that the grievor had handed the key ring, with the Laundry Room key attached, to an inmate on December 10th. Ms. O’Brien then instructed Sergeant Lowe to direct CO Ernst to prepare an Occurrence Report on the matter. She received and reviewed this report on Monday, December 14, 2015. Ms. O’Brien also requested that Security Manager R. McGilvery interview inmate D to obtain his account of the events. The Security Manager’s Occurrence Report dated December 17, 2015 documented that inmate D agreed that he had been handed a key by the CO who released him from the Laundry. By email of December 22, 2015, Ms. O’Brien instructed the grievor to provide an Occurrence Report about the incident. As mentioned above, the grievor filed his initial report that same day. [46] Ms. O’Brien testified that she had serious concerns after reading the grievor’s Occurrence Report. She referenced the following in this regard: the grievor admitted to handing a key to an inmate; the report was very vague and did not provide a reason as to why he had done so; she felt that the grievor attempted to minimize his actions by saying there were no offenders in the Yard at the time; and the grievor’s “very short” report led her to think that the grievor believed the incident was not “a big deal”. As a consequence, Ms. O’Brien requested the Addendum as referenced and reproduced above. It was her evidence that on reading same, she still thought that the report was vague and that the grievor was trying to downplay the seriousness of the incident. Ms. O’Brien observed that in all of her prior positions, she had never been involved in, or seen, -22- a situation where a CO handed keys over to an inmate. The grievor was, ultimately, suspended with pay pending further investigation by letter dated February 5, 2016. [47] Mr. Marshall described the Employer’s mandate as “the provision of safety to the community through the care, custody and intervention in respect of individuals progressing through the Justice System”. In his opinion, key control falls squarely within this mandate, particularly as it relates to the custodial component. Mr. Marshall advised that new recruits are exposed to the Key Control provisions of the ISPPM during their OCSC training. Generally, these provisions provide the recruits with guidelines and instructions for the safe and effective handling of keys within a secure environment. Mr. Marshall noted that new COs are taught that keys are to be kept in their pockets, held in the palm of their hands, or placed in the key press. Additionally, they are instructed to not talk about key numbers, or what doors a key might open, in the presence of inmates. Simply stated, it was Mr. Marshall’s view that keys should not be exposed to inmates in any fashion. [48] During the course of his evidence, Mr. Marshall referenced the Standing Orders at the Brantford Jail relating to Key Control. These Orders contain the following provisions: “5.1 All employees shall observe the following key control practices: 5.1.1 keys shall be carried as inconspicuously as possible (e.g. in the pants pocket) and reference to key numbers and/or other identifying information shall be avoided within hearing of inmates and non-ministry personnel; 5.1.2 keys shall be exchanged hand-to-hand and never thrown or placed on a desk or other surface. An entry recording the transfer of keys shall be made on the “Key Control” form or in the appropriate log book;\ …………………………………………………………… -23- 5.1.3 no inmate shall be allowed to handle or examine a security key under any circumstances.” (emphasis mine) [49] Mr. Marshall testified that, based on his overall experience, he could not envisage a situation where handing a key, or keys, to an inmate would be proper. He stated that such a thing should never be done and that it would be contrary to both Ministry policy and the Standing Orders at the Brantford Jail. Mr. Marshall maintained that the handing of a key to an inmate would jeopardize the health and safety of both inmates and staff and would serve to undermine the security of the institution. He spoke of the potential for assaults or hostage taking and of the possibility of an impression being taken of a key. In his words, allowing inmates access to keys would “defeat the purpose of having locks”. Mr. Marshall noted that some keys may open more than one (1) lock and may, in fact, open locks at other institutions. [50] Mr. Marshall stated that there is no exception to the rule against handing a key to an inmate. He stressed that it would be inappropriate to engage in such conduct even if the inmate possessed the key for only a short period of time, or if the provision of the key was done as a joke. From his perspective, it would not matter which key was given to inmate D. Mr. Marshall advised that he would have the same concern if it was the Yard key which was given to inmate D, notwithstanding there may have been no other inmates in the Yard at the time. Ultimately, he viewed what occurred here as a major security violation, even though no one was injured by the transfer of the key. Mr. Marshall reiterated that “handing off of keys to inmates just isn’t done”. He observed that inmate D, himself, seemed to think that the grievor had engaged in improper behavior. Reference was made to CO Ernst’s Occurrence Report in which he reported that inmate D made the -24- following comment: “look at what he gave me”. I note, on this point, that inmate D also told Security Manager R. McGilvery that he thought it wrong for an inmate to be in possession of a security key. [51] Ms. O’Brien held an Allegation Meeting with the grievor on February 18, 2016. Ms. Kathy Lessel, the Deputy Superintendent, and Mr. Dan Wardell, the grievor’s Union Representative, were also in attendance. Ms. O’Brien’s notes of the meeting were filed as an exhibit in this proceeding. A review of the notes, together with Ms. O’Brien’s evidence, establishes that the grievor offered the following acknowledgements and explanations during the course of the Allegation Meeting: i) The grievor advised Ms. O’Brien that he understood his log book was not accurate and that he made several errors therein on November 4, 2015; ii) The grievor advised Ms. O’Brien that he believed the teeth sewn into the necklace belonged to the grandfather of inmate A and that the necklace was part of his religious heritage. As a consequence, he did not think that the presence of the item had to be reported. The grievor agreed that he did not engage in any follow- up to verify the necklace was properly retained by inmate A. He further advised Ms. O’Brien that he did not routinely remove ripped clothing or bedding from the units, as Sergeants and other staff had told him to just leave such items in the cells; iii) The grievor admitted that he escorted inmate A out of Unit 4 and took him to the hallway just outside of Unit 3. He advised Ms. O’Brien that he had the inmate stand back against the opposite wall and that the necklace was then shown to another inmate inside of Unit 3. The grievor reiterated that he believed inmate A’s statement that the teeth were those of his grandfather and represented “a cultural thing”; iv) The grievor admitted that he gave the Yard key to inmate D as “a joke”. As mentioned previously, it was at this meeting where the grievor informed Ms. O’Brien that he dropped the key “in front of the kitchen door, right by A. and D. where Logan was standing”. Ms. O’Brien’s notes document the following exchange with the grievor. -25- “I asked S.P. if he thought for any reason, joke or not, that there was anything at all acceptable about handing an inmate a security key. He said no, I know it’s not right. I know I put Logan in a bad position; to either look blindly away or ratting me out. It never should have happened. He added that he understood my position as well. I also asked S.P. at what point he realized that handing a security key to an inmate was wrong; only after Logan said something? S.P. responded that right after he handed the inmate the key, he knew it was wrong;” and v) The grievor advised Ms. O’Brien that he had a lot going on in his personal life at the time, including a marital separation and his daughter subsequently being taken out of the home by the Children’s Aid Society. Ms. O’Brien testified that she believed the grievor was remorseful during their exchange at the Allegation Meeting. [52] Ms. O’Brien decided to re-interview CO Ernst on February 19, 2016 because of certain discrepancies between his and the grievor’s account of the incident involving the key, including which key was in fact handed to inmate D. It was Ms. O’Brien’s evidence that CO Ernst again told her that the inmate was holding the key ring to which the Laundry Room key was attached. Ms. O’Brien was asked whether it mattered to her, as Superintendent, which key was handed to the inmate. I recorded her response as, “Absolutely not….An inmate should never have access to, especially holding onto, any institutional key regardless of what the key is used for”. I note that CO Ernst also informed Ms. O’Brien that he did not see the grievor drop any keys. [53] The grievor testified that he separated from his wife in August, 2015. At some point thereafter his daughter, who was then eight (8) years old, stopped attending school on a regular basis. This led the School Board to open a truancy file. It also resulted in the daughter being taken out of the parent’s care for a weekend in January, 2016. Following -26- Court proceedings immediately thereafter, she was placed with the grievor’s in-laws in Wiarton, Ontario for the period between January and August, 2016. In the latter month, the grievor’s daughter was returned to her mother’s care, subject to a Supervision Order from Family and Children’s Services. The grievor further advised that he declared bankruptcy in or around the timeframe material to this case. It was his evidence that he was distracted as a consequence of the aforementioned circumstances and that he experienced stress, anxiety and problems sleeping. The grievor stated that he was prescribed medication for anxiety and that he spoke with a psychiatrist on several occasions about the problems he was experiencing. Supporting medical documentation was not filed in this proceeding. [54] The grievor stressed he was not suggesting that he was not responsible for what occurred in November and December, 2015. He was asked how he would conduct himself, if faced with the same circumstances today. His response was: “A lot different. Would be more professional, follow guidelines and regulations and definitely wouldn’t be putting people in a position like that again where they had to make a decision as to ratting someone out”. The grievor advised that, while he and his wife are still separated, they are getting along better than before. He stated that he spends time with his daughter who remains in her mother’s care. I was informed that the grievor has satisfied his bankruptcy obligations and that he is awaiting a formal discharge. He also indicated that he is no longer on anxiety medication. [55] It is apparent from the evidence that Ms. O’Brien was aware of the grievor’s separation and the subsequent issues relating to his daughter. The grievor had also informed her that he was using the services of the Employee Assistance Program. There -27- is no doubt that Ms. O’Brien tried to accommodate the grievor’s situation, as best she could, through shift changes, scheduling and the grant of both time off without pay and compassionate-discretionary days off with pay. Ms. O’Brien testified that she took the grievor’s family situation into account as a mitigating factor when reaching the decision to terminate his employment. [56] The grievor testified that his period of employment at the Metro West Detention Centre and the Toronto South Detention Centre was discipline free. He did receive a three (3) day suspension on September 10, 2015, while working at the Brantford Jail, for leaving both his post and the institution on June 14, 2015 without the prior authorization of his Supervisor. The letter of discipline stated that the grievor’s actions on that day were contrary to the institution’s Standing Orders. Counsel for the Employer in opening argument observed that this discipline was not grieved. In response, counsel for the Union stated that the suspension was, in fact, grieved but not referred to arbitration. It is unnecessary to resolve this difference, as there is no question that the grievor was subjected to the discipline for the conduct complained of. [57] Ms. O’Brien advised that in the process of determining the appropriate disciplinary response, she consulted with personnel at the Regional Office and with staff in Employee Relations, Human Resources and the Legal Branch. It was her evidence that they all supported the decision to terminate the grievor’s employment. She testified that the decision was premised on several security breaches committed by the grievor. Ms. O’Brien identified the grievor’s failure to discern that the necklace, with the teeth sewn into it, was the product of a serious assault and his act of handing a security key to inmate D as especially serious. She maintained that, throughout, the grievor made a series of -28- “poor judgment calls” and that he did not recognize right from wrong, until it was pointed out to him. From her perspective, the grievor seemed to believe that his behavior was acceptable or, in the case of the key incident, was tolerable as a practical joke. Ms. O’Brien explained that, for these reasons, she felt it would be detrimental, even harmful, to maintain the grievor’s employment as a CO. It was her determination that the employer-employee relationship had been breached beyond repair. In the letter of termination dated March 11, 2016, Ms. O’Brien reviewed the four (4) allegations and then summarized the reason for the decision as follows: “I have taken into consideration all of the circumstances surrounding the substantiated allegations, the employer’s business interests, the mitigating factors you presented, and conducted a comprehensive review of your personnel file, including your employment history and length of service. The Ministry takes its responsibility of protecting and providing inmates with a safe, healthy and responsive environment seriously and therefore your misconduct is a significant concern to the Ministry. As a Correctional Officer, you are placed in a position of trust and are expected to fulfill your duties with integrity and honesty. You have an obligation at all times to uphold the highest level of professionalism and integrity as a Correctional Officer and as a Peace Officer in the Province of Ontario. You have not upheld your obligation under Ministry policies and procedures as well as the Ministry of Correctional Services Act. As such, you have compromised your employment relationship with the employer and fundamentally breached the significant trust instilled in you. As such, the employer/employee relationship has suffered irreparable damage. With due consideration to the aforementioned and given the very serious nature of your actions, you are hereby dismissed from employment pursuant to section 34 of the Public Service of Ontario Act, effective immediately.” [58] The grievor stressed that he would like to return to employment as a CO. He stated that he had always enjoyed the work and that it was “a great career”. I recorded the following exchange between the grievor and counsel for the Union: Question - “Why do you think you could be counted on if -29- returned to work? Answer - I feel I have learned from what I’ve done wrong and I still respect the job and the system and believe I could be trusted. I know I’ve made some mistakes that are inexcusable. In my mind, I’ve learned from the whole process. Question - What do you say to the Employer and Ms. O’Brien today? Answer - I apologize to everyone and especially to Logan. It has to be a rough spot for a young guy and a casual officer who just entered into the Ministry.” [59] The grievor testified that since his termination, he has worked as a truck driver for four (4) different employers. He advised that in his most recent position, he is paid $20.00 an hour and that such employment does not provide any health and welfare benefits. The grievor observed that the remuneration earned from all of these employers was less than he received as an employee of the Ministry of Community Safety and Correctional Services. [60] Counsel for the Employer argued that the grievor demonstrated poor judgment and failed to exercise common sense with respect to all of the circumstances relied on to support the termination. It was her submission that he did not meet the standard of conduct the Employer was entitled to expect from a CO. She cited the following passage from Stead et al. and Deputy Head (Correctional Service of Canada), 2012 CRTFP 87, 2012 PSLRB 87 (Steeves) in support of this overarching theme to her closing argument: “67 By way of general background, the authorities are clear that correctional officers are to be held to a higher standard of conduct than employees who do other work …………………….. ……………………………This is so because persons who join the corrections service know that more is expected of them by their employer than would be expected of employees in other occupations…………………….……” -30- [61] Counsel for the Employer acknowledged that indigenous inmates at the Brantford Jail were allowed to retain some cultural artifacts. She noted, however, that permission would only be granted after consultation with the Chaplain and/or the Native Institutional Liaison Officer and that, if permission to retain the necklace had been granted, it would have been logged as approved on the inmate’s unit notification card and Personal Property Declaration form. Counsel maintained that the grievor was derelict in his duty when he failed to check these sources of information or to speak with his Supervisor about the necklace. She suggested that “flags should have gone up” when the grievor was first shown the necklace. Counsel observed that the item in inmate A’s possession was not a dream catcher but, rather, a necklace with human teeth embedded into it. She referenced Ms. O’Brien’s evidence that she had never seen an inmate in possession of this type of item over her twenty-five (25) year career in Corrections. Additionally, counsel asserted that the grievor should have realized that the necklace was not a cultural artifact brought into the Brantford Jail by inmate A, given that it was made, in part, from institutional bedding. It was the thrust of her submission that the grievor, in all of the circumstances, should have known that the necklace was, in fact, contraband and that his failure to recognize this evidenced his lack of judgment, acuity and common sense. Counsel further referenced the grievor’s admission that he was “duped” by inmate A. She cited the Decision in OPSEU (Bellamy/Brown) and Ministry of Community Safety and Correctional Services (2011), GSB No. 2009-2053 et al. (Petryshen) for the very real risks which can materialize from the presence of contraband in a correctional institution. [62] Counsel similarly argued that the grievor displayed a lack of sound judgment and common sense when he decided to escort inmate A from Unit 4 (Protective Custody) to -31- Unit 3 (General Population). She submitted that no legitimate correctional purpose was served by this escort. Instead, it allowed inmate A to show inmates in the latter unit that he had committed a serious assault and had secured a “trophy” therefrom. Counsel added that the grievor, in effect, facilitated this inmate’s effort to obtain “bragging rights” and to enhance his status within the institution. She further highlighted Ms. O’Brien’s evidence that this form of unauthorized inmate movement created a significant security concern and that it could potentially serve to lessen the grievor’s authority over inmates under his care and control. [63] Counsel for the Employer noted that the grievor, admittedly, made incomplete and inaccurate log book entries. More specifically, on several occasions, he added inmates to the wrong unit counts with a consequential misalignment of the counts for the areas under his control. Counsel stressed the importance of maintaining an accurate unit count and of properly tracking the movement of inmates within the institution. She asserted that a CO has to know the precise number of inmates they are responsible for and that failure to accurately record information could prove disastrous in the event of an emergency. She further observed that log books serve as an important source of information within the institution and may from time to time be needed as documentary evidence in legal proceedings. Counsel recognized that Ms. O’Brien acknowledged that there were log book entries by other COs that were also not compliant with applicable policies. She advised that Ms. O’Brien did not review such entries at the time she discovered the grievor’s errors of November 4, 2015. Counsel submitted that, in any event, the non- compliance of other COs did not excuse the fact that the instant grievor’s log book entries were inaccurate in several respects. She cited the following passage from the Stead et al. decision in support of this aspect of her argument: -32- “68 Looking at the grievors’ conduct in this case, there can be little doubt that counting inmates is fundamental to the proper functioning of a correctional institution. Indeed, it would seem to be axiomatic that a correctional system cannot operate with any level of effectiveness without knowing that the population in its institutions is accounted for. The recording of this information is equally important. The most obvious example of the value of counts is to be able to deter or discover escapes. Another example, demonstrated by the facts in this case, is that counts will reveal if one cell is empty and another cell has too many inmates. Either circumstance is reason for concern and the combination of an empty cell and a cell with two inmates in a maximum-security institution only elevates the concern. The protection of the public depends in large part on basic procedures such as counts being in place and followed.” [64] Counsel for the Employer referenced the evidence of Mr. Marshall and Ms. O’Brien to the effect that it was entirely inappropriate, unacceptable, and contrary to both training and policy, for the grievor to hand an institutional security key to inmate D. In her submission, the grievor’s conduct in so doing “made a mockery of the mandate” of the Ministry of Community Safety and Correctional Services and “defied common sense in the context of Corrections”. Counsel noted Mr. Marshall’s opinion that the provision of such a key to an inmate defeated the purpose of having locks and was something that is just not done in a facility such as the Brantford Jail. She observed that Mr. Marshall considered what occurred on December 10, 2015 to represent a major security violation, even though inmate D was in possession of the key for only a very brief period of time. Counsel stressed that both Mr. Marshall and Ms. O’Brien testified that it was immaterial which key was actually given to the inmate. She argued that the mere hand-off of the key could have jeopardized the safety and security of CO Ernst, other staff and inmates. Counsel reiterated that the grievor’s behavior reflected a complete lack of common sense expected from a seasoned CO. She noted, in this regard, that his actions contravened the Standing Orders of the Brantford Jail relating to Key Control, as reproduced above. -33- [65] Counsel for the Employer considered it significant that the grievor did not file an Occurrence Report immediately after the events of December 10, 2015. In her estimation, he was required to do so as the senior CO on duty. Counsel alluded to the fact CO Ernst also failed to file a timely report and his reason for not doing so. It was her submission that CO Ernst’s delay cannot, in substance, serve as an excuse for the grievor’s admitted misconduct. [66] Counsel for the Employer referred to Ms. O’Brien’s critique of the grievor’s initial Occurrence Report of December 22, 2015 and his later Addendum of January 8, 2016. She argued that the grievor in both documents attempted to downplay or minimize his misconduct by insisting he gave the Yard key to inmate D and asserting that there were no inmates in the Yard at the time. Counsel further suggested that the grievor was deliberately vague in his reporting on the events of December 10th. I was asked to contrast the content of the above-mentioned Occurrence Reports with the considerably more detailed Occurrence Report of November 5, 2015. Counsel claimed that the two (2) later reports were vague and lacking significant detail because the grievor “knew he was in trouble”. [67] Counsel for the Employer noted that Ms. O’Brien was aware of what was going on in the grievor’s personal life and that she took it into consideration during her decision making process. On her analysis of the facts, the grievor did not take responsibility for his actions as quickly as he should have. It was counsel’s submission that the grievor’s personal circumstances and his ultimate expression of remorse should not be treated as “a get out of jail free card”. -34- [68] In the final analysis, this Arbitrator was asked to uphold the termination. Counsel argued that a reinstatement would send the “absolute wrong message” to correctional staff. Lastly, she argued that the Employer did not ignore its “practice of progressive discipline”, as claimed in the grievance. Counsel noted the presence of the three (3) day suspension on the grievor’s record. [69] The following additional authorities were provided to support the Employer’s position: WM Scott and Company Ltd. and Canadian Food and Allied Workers Union, Local P-162, Labour Relations Board of British Columbia, No. 46/76 (Weiler); AMR Ground Handling Services and National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 2213 (Toigo) (1998), unreported (Saltman); Canada Post Corporation and Canadian Union of Postal Workers (Milligan) (2005), unreported (Brown); McDonnell Douglas Canada Ltd. and United Plant Guard Workers of America, Local 1962 (Vanderwal) (1986), unreported (Weatherill); OPSEU (O’Hara) and Ministry of Correctional Services (1986), GSB No. 1596-84 (Verity); Government of the Province of British Columbia and B.C. Government and Service Employees’ Union (Jaye) (1997), unreported (Hope). [70] Counsel for the Union emphasized that the grievor, based on his past experience at the Brantford Jail, believed that indigenous inmates housed therein were permitted to retain objects in their cells if they seemed to reflect a cultural practice or heritage. It was his submission that this belief would encompass an item, such as the necklace in issue, which was fashioned within the institution. Counsel acknowledged that the grievor was duped by inmate A into thinking that the necklace had cultural significance and that it contained his grandfather’s teeth. He observed that this mistake led directly to two (2) -35- things: first, the grievor did not immediately take the necklace away from the inmate; and second, the grievor thought it would be appropriate for the inmate to show the necklace to another member of his family. Counsel agreed that, with the benefit of hindsight, the grievor should have recognized that this item ought not to have been in the inmate’s cell. From his perspective, the grievor exercised poor judgment at the time. He asserted that it was unlikely the grievor would make the same mistake again. [71] Counsel for the Union noted that it became apparent to the grievor on November 5, 2015 that inmate C had been assaulted and lost two (2) teeth while in Unit 4, and that he had been duped by inmate A on the prior day. It was his submission that the grievor was “forthcoming right away, once he realized what had happened”. Counsel referenced the following in this regard: the grievor then became actively involved to ensure the necklace was taken away from inmate A; he immediately acknowledged what had occurred on November 4th and apologized to Sergeant Bartolo; he prepared a detailed Occurrence Report on November 5th, which referred to the inmate showing him a necklace, with two (2) human teeth sewn into it, on the previous day; and he prepared a second Occurrence Report on November 12th, which outlined in significant detail the events of November 4th. Simply stated, counsel maintained that the grievor did not try to hide what he had done in relation to inmate A. [72] Counsel for the Union argued that the grievor’s escort of inmate A from Unit 4 to Unit 3 represented an error in judgment. He stressed, however, that the escort was “just a few steps down the hall”, and that the grievor had the inmate stand against the opposite wall in Unit 3 so that he could not pass anything into the Unit or to another offender. -36- Counsel reiterated that the grievor did not attempt to hide anything concerning this incident, as evidenced by his full and complete Occurrence Report of November 12, 2015. [73] Counsel for the Union noted the grievor’s acknowledgement that his log book entries were not perfect and should have contained more information. He argued, however, that Ms. O’Brien reviewed the grievor’s entries for November 4, 2015 in isolation and that a broader view of the log book would have disclosed that there was no uniformity in how it was completed by COs generally. In counsel’s words, there was “a variation in the form and content tolerated by the Employer”. He referred to the following to support this submission: i) the practice of putting columns on the pages of the log book differed between COs and dates, there being no specific requirement with respect to same. Counsel stated that it was left to the COs individually as to how to structure the log book; ii) there was inconsistency between COs as to whether they recorded the names of inmates sent to work and on their return; and iii) in a number of instances, unit counts were not logged and the only entry was for the total count. On counsel’s analysis, this would equate with a situation in which the grievor may have erred with respect to unit counts but was correct on the total count. He observed that the system in place did not reflect the Employer’s policy requiring separate counts for the units. Counsel, ultimately, argued that it was unfair to view the grievor’s entries out of context and to apply standards that were not reflected in the institutional practice. He maintained that the deficiencies in reporting, when considered alone, would not merit the imposition of significant discipline. Counsel asserted that the grievor understands that he must complete the log book in a more thorough and accurate manner going forward. [74] Counsel for the Union acknowledged that the grievor made a serious mistake when he handed a key to inmate D, and that such an action was unquestionably inappropriate -37- in a secure correctional setting. He agreed with counsel for the Employer that nothing turns on which key was handed to the inmate. More specifically, counsel advised that he was not suggesting the incident would be less serious if it was, in fact, the Yard key which was given to inmate D. He noted that the incident took place within a matter of seconds and that the keys were carried by the inmate for just a very short distance. Counsel suggested that these factors could have decreased the grievor’s ability to accurately recall the totality of the incident. In any event, he referenced the grievor’s statement that he was not calling CO Ernst a liar on this point of contention. [75] Counsel for the Union described the incident of December 10, 2015 as a “spur of the moment” event resulting from the grievor’s drop of the key and the inmate’s subsequent comment. He stated that, on the evidence, the grievor immediately recognized he had made a serious error. On his view of the facts, the grievor admitted to a major violation of policy in both his initial Occurrence Report of December 22, 2015 and his Addendum of January 8, 2016. In counsel’s words, the grievor did not try to “distance himself” from the misconduct. He further noted that the grievor expressed considerable remorse for his conduct at the Allegation Meeting with Ms. O’Brien. Counsel maintained that the grievor understands the importance of custody and control of institutional security keys and asserted that the grievor will not make a similar mistake in future. [76] Counsel for the Union acknowledged that the incidents involving the necklace, the escort and the security key constituted serious misconduct which merited significant discipline, short of termination. It was his submission that, in all of the circumstances, termination of the grievor’s employment was not a just and reasonable disciplinary -38- response. By way of remedy, counsel asked that the grievor be reinstated, together with some lesser disciplinary penalty. He rejected the Employer’s assertion that the employment relationship has been irreparably fractured in this instance. Counsel cited the following authorities in support of the Union’s remedial request: OPSEU (Adam) and Ministry of Community Safety and Correctional Services (2005), 137 L.A.C. (4th) 111 (Herlich); and OPSEU (Conry) and Ministry of Community Safety and Correctional Services, GSB No. 2014-2618 (Williamson). [77] Both of the above-referenced Decisions set out the factors that Arbitrators should consider when deciding whether or not to exercise the power to mitigate a disciplinary penalty. The following paragraph from Conry summarizes the approach to be taken to issues of this nature: “[32] In the instant case, the issue to be addressed is whether it is just and reasonable in all the circumstances pertaining to this matter to substitute a different penalty in place of Mr. Conry’s discharge. An important factor taken into account by arbitrators in considering matters where there has been serious misconduct is whether the employment relationship has or has not been irreparably damaged. In addressing this question a number of factors are typically taken into account. Some of these include the grievor’s past work record, consisting of both length of service and disciplinary record; whether or not the misconduct is an isolated occurrence; whether the grievor promptly owned up to his misconduct or lied to the employer during the investigation and lied at arbitration; whether the misconduct was a premeditated matter or occurred on the spur of the moment; whether or not there was provocation for the grievor’s behavior; whether the grievor has recognized the gravity of his misconduct and expressed remorse; whether it appears to be more likely than not that the grievor will not reoffend; and any particular personal undue hardship that would result from termination.” [78] Counsel for the Union in closing argument applied the above-cited factors to the circumstances existing in the present case. His submissions may be summarized as follows: i) The grievor has been a good employee over the course of his employment with the Ministry of Community Safety and Correctional Services. The only -39- discipline on his record, prior to the instant termination, is the three (3) day suspension imposed in September, 2015; ii) The grievor’s personal circumstances, as described in this Decision, while not offering a complete excuse for his behavior must be considered. Counsel argued that the several issues confronting the grievor caused him stress and anxiety, which in turn led him to be more distracted and less focused while at work in the time period material to this dispute. Put another way, these conditions contributed to the exercise of poor judgment. Counsel noted that Ms. O’Brien was aware of the grievor’s personal issues and had attempted to accommodate him with time off and changes to his schedule; iii) The grievor was quick to acknowledge his mistakes and was forthcoming about events in his several Occurrence Reports. He further expressed considerable remorse for his conduct at the Allegation Meeting with Ms. O’Brien. Counsel asserted that the grievor clearly recognized that he had made significant errors on the two (2) days in question; iv) The grievor has incurred a significant financial penalty arising from the termination. Since termination, he has worked as a truck driver at a substantially reduced wage. In counsel’s judgment, the grievor has limited employment opportunities outside of Corrections; and v) Counsel reiterated that, in his opinion, the relationship between the grievor and the Employer was not irretrievably breached. He argued that the grievor, if reinstated, would not likely reoffend. [79] Counsel for all of the above reasons asked that the grievor be reinstated to his former position as a CO. He noted that a reinstatement could not be to the Brantford Jail given its recent closure. Counsel asked that this Arbitrator remain seized on the issue of location. Lastly, he argued that a remedy could be fashioned which would sufficiently alert other employees that the type of conduct engaged in here was unacceptable and would not be tolerated from a CO. [80] The grievor was admittedly duped by inmate A into believing that the teeth sewn into the necklace were those of his late grandfather and that the necklace represented a cultural or religious artifact. As previously stated, the grievor explained that, based on his prior experience at the Brantford Jail, he believed that indigenous inmates were permitted to retain possession of these types of items. In my judgment, however, the necklace was -40- materially different from a dream catcher, as it had human teeth embedded into it. I accept that it was an unusual item and that “flags should have gone up” when the grievor was first shown the necklace. More specifically, I am satisfied that the grievor should then have reviewed the unit notification card and/or the Personal Property Declaration form to determine whether inmate A had been authorized to keep the necklace in his cell. Additionally, he could have spoken to the Sergeant on duty about the matter. Had the grievor opted to do any of these things, he would have discovered that the inmate was not authorized to retain the necklace in his cell. It is also very likely that it would soon have become apparent that the teeth were the product of an assault by inmate A on inmate C. I note, in passing, that if the grievor had engaged in immediate follow-up, it is unlikely that he would have subsequently acceded to inmate A’s request that he be permitted to show the necklace to inmate B in Unit 3. [81] It is abundantly clear that the grievor exercised poor judgment with respect to his handling of this incident. He admitted as much to Sergeant Bartolo during their exchange on November 5, 2015. The grievor, however, never denied the nature of his involvement with inmate A on November 4th. In this regard, I note the following: the grievor in his Occurrence Report of November 5, 2015 acknowledged that inmate A had shown him the necklace on the prior day; the grievor subsequently submitted a detailed Occurrence Report on November 12, 2015 concerning the events of November 4th; and he provided an explanation to Ms. O’Brien at the Allegation Meeting of February 18, 2016 for why he acted as he did. During the course of his evidence in this proceeding, the grievor agreed that, with the benefit of hindsight, he had made a mistake in allowing inmate A to retain the necklace and that he should have resorted to the type of follow-up discussed above. -41- [82] Without doubt, the grievor’s escort of inmate A from Unit 4 to just outside of Unit 3 on November 4, 2015 amounted to a violation of the Standing Orders of the Brantford Jail. I accept Ms. O’Brien’s evidence that special management and general population inmates are housed separately for good reason and are not supposed to mix. I can readily understand her concerns about the escort. I further agree that no legitimate institutional purpose was served by this escort. It appears likely that the inmate’s request reflected an intent, on his part, to show off his “trophy” and to thereby enhance his status within the institution. Clearly, the grievor provided inmate A with the opportunity to have a brief discussion with inmate B and to display the necklace to him and to any other inmates who might have been in the immediate area. While this escort should not have occurred, I note the following: inmate A was not granted actual access into Unit 3, as the grievor positioned him against the wall opposite to the grill; nothing was passed into Unit 3 by inmate A, as a consequence; and the escort itself was relatively short and did not occupy a significant period of time. [83] As was the case concerning the contraband, the grievor admitted at the hearing that he had been duped by inmate A. He further acknowledged that he had made a mistake and asserted that it would not happen again. In my judgment, the grievor’s decision to escort the inmate from Unit 4 to Unit 3 displayed a clear lack of good judgment and common sense. I recognize that the grievor was forthcoming on November 5, 2015 when he realized that inmate C had been assaulted while in Unit 4 and had lost two (2) teeth as a result. At that juncture, events became much clearer to the grievor. As mentioned above, the grievor provided a full and complete Occurrence Report on November 12, 2015 about this incident. He later provided a full explanation for his conduct at the Allegation Meeting. -42- [84] The grievor admitted that certain of his log book entries on November 4, 2015 were inaccurate and incomplete. He accepted that they should have been more precise and descriptive. I concur with Ms. O’Brien’s statement that there is a legitimate need for COs to provide accuracy and detail in their log book entries relating to the tracking of inmate movement and to documenting both the unit and total counts. Ms. O’Brien’s mistaken attribution of the 0630 hour entry to the grievor is not material, given the grievor’s acknowledgement that he did, in fact, make a number of other errors in the log book on that day. Removing the 0630 hour entry from the mix is inconsequential. As mentioned earlier, it is apparent that some of the entries made by other COs in the log book did not reflect a uniform and consistent practice and were, in some instances, contrary to applicable policy and the Standing Orders of the Brantford Jail. This is an issue that may merit the Employer’s attention. [85] I agree with the submission of counsel for the Union that the grievor’s log book entries, standing alone, would not support a termination. This was not a situation where the grievor failed to conduct a count and then subsequently falsified same, as occurred in Stead et al. In that instance, a four (4) day financial penalty was imposed by the Employer and sustained by the Adjudicator. [86] For the reasons set out at paragraph [39] of this Decision, I find that the grievor handed inmate D the key to the Laundry Room and not the Yard key. This same key, which was attached to a key ring, was subsequently retrieved by the grievor from the inmate and handed back to CO Ernst. [87] As noted, the grievor filed two (2) Occurrence Reports pertaining to this incident: an initial one on December 22, 2015 and a subsequent Addendum on January 8, 2016. Both -43- of these Occurrence Reports were short and lacking in detail. The grievor admitted in both reports that he handed a key to inmate D. He asserted therein, however, that it was the Yard key. He also indicated in both documents that there were no offenders in the Yard at the time. I am inclined to accept Ms. O’Brien’s opinion that this emphasis on the Yard key, together with the report of there being no inmates in the Yard, is consistent with an effort by the grievor to minimize the seriousness of his actions. I do note that the grievor, in his evidence, was prepared to accept that he may have handed the key to the Laundry Room to inmate D. He was reluctant to accuse CO Ernst of lying on the point. [88] It is apparent that the handing of an institutional security key to inmate D was contrary to the grievor’s prior training at the OCSC, the Employer’s policy relating to Key Control, and the Standing Orders of the Brantford Jail. The latter expressly provides that “no inmate shall be allowed to handle or examine a security key under any circumstances”. I accept Mr. Marshall’s evidence that handing a key to an inmate could jeopardize the health and safety of both staff and inmates and could potentially undermine the security of the institution in a number of respects. He stated that he could not envisage a situation where handing a key to an inmate would ever be proper. Both Mr. Marshall and Ms. O’Brien testified that, in this instance, it did not matter which key was given to inmate D and that the seriousness of the conduct was not dependent on whether it was the key to the Laundry Room or the Yard key. I note that counsel for the Union, in closing argument, accepted their assessment on this issue. I also have no reason to question Mr. Marshall’s statement that handing a key to an inmate would still be unacceptable even if the inmate possessed it for only a short period of time or if the provision of the key was done as a joke. -44- [89] Ultimately, there is no doubt that the handing of the Laundry Room key to inmate D was completely unacceptable and indefensible. It is telling that even inmate D seemed to sense that it was wrong for him to be in possession of the key. It is indeed fortunate that no harm resulted from the grievor’s actions. I note that the grievor acknowledged his wrong doing both at the Allegation Meeting and during the course of this proceeding. He testified that he now understands he made a poor and unintelligent decision at the time and maintained that he would not do so again going forward. After considering all of the evidence, I find that the grievor’s handing of the key to inmate D was likely a spur of the moment reaction, albeit an unacceptable one, to the inmate’s comment about the key being dropped. [90] I have concerns that poor judgment on the part of the grievor caused, or contributed to, his conduct on the two (2) days in issue. Clearly, on those days he did not meet the standard of conduct that the Employer is entitled to expect from a CO. The threshold question is whether the grievor is likely to exercise this same level of poor judgment in the future. If the answer is in the affirmative, it would provide support for the Employer’s submission that the employer-employee relationship has been irreparably breached and that, as a consequence, the termination should be upheld. In the alternative, if the grievor has truly learned from these incidents, and understands the need to engage in better decision making and to comply with applicable policies and procedures, then the possibility exists that a sound employment relationship can be restored through a reinstatement. In addressing this question, I have considered the factors set out in the Adam and Conry Decisions. My conclusions are as follows: i) I think it material that the grievor acknowledged his wrongdoing at the Allegation Meeting. Ms. O’Brien testified that she believed he exhibited -45- remorse at the time for what he had done. The grievor, similarly, acknowledged his misconduct throughout the course of his evidence at the hearing. This Arbitrator was left with the distinct impression that the grievor’s expression of remorse was honest and genuine and that he fully comprehends that what he did on November 4th and December 10th, 2015 was wrong on all counts. I have been persuaded that the grievor understands that, as a CO working in a secure institutional setting, he must exercise sound judgment and common sense and act in accord with all applicable policies and procedures. In the final analysis, I think it unlikely that he will reoffend. If he does, it is doubtful that arbitral discretion would again be exercised in his favour; ii) I have taken into account the marital, parental, financial and medical issues which confronted the grievor in the latter half of 2015. The combination of these problems may very well have contributed to the grievor being distracted and less focused while at work. To his credit, he did not assert that his personal circumstances served as a complete excuse for the behavior which led to his termination. I have also considered the fact that the issues the grievor was experiencing in 2015 have improved with the passage of time; iii) I have also taken into account that over his seven (7) years of employment with the Ministry of Community Safety and Correctional Services, the only discipline on record was the three (3) day suspension received at the Brantford Jail in September, 2015. There were no instances of discipline being imposed while the grievor worked at the Metro West Detention Centre and the Toronto South Detention Centre. On balance, the grievor had a generally good work record prior to November, 2015 over a considerable period of employment; and iv) As mentioned, I conclude that the handing of the key to inmate D was very likely akin to a spur of the moment reaction. I further determine that the incidents relating to both the necklace and the escort of inmate A resulted, in large part, from the grievor’s failure to do the necessary follow-up once he was shown the necklace. [91] After considering all of the evidence and argument, I have not been persuaded that the employer-employee relationship has been breached beyond repair. In all of the circumstances, I find that it is reasonable and appropriate to afford the grievor a further, and perhaps last, opportunity to demonstrate that he understands what is expected of a CO and to earn back the Employer’s trust. It is necessary, however, to impose a significant disciplinary sanction given the serious nature of the grievor’s misconduct. After considerable thought, I have decided to reinstate the grievor to his position as a CO without any compensation but with no loss of seniority. In place of the termination, I substitute a -46- suspension from the date of termination to the date of this Decision. This, in my view, represents a substantial disciplinary response. It should be sufficient to alert other COs that the type of conduct engaged in by this grievor is unacceptable and will not be tolerated. This substituted penalty mirrors that ordered in Conry. I observe that the Vice-Chair there commented as follows: “This is a substantial suspension that reflects the seriousness of the misconduct” (paragraph [44]). Lastly, I do not consider this to be the type of exceptional case which would merit an award of damages in-lieu of reinstatement. [92] I recognize that the grievor cannot be reinstated to a CO position at the Brantford Jail given its recent closure. It is left to the parties to determine the location of the new work site. I remain seized to address any issues relating to the implementation of this Decision. Dated at Toronto, Ontario this 28th day of February, 2018. “Michael V. Watters” __________________________ Michael V. Watters, Arbitrator