HomeMy WebLinkAbout2012-0362.White.20-08-26 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#2012-0362; 2014-1733; 2016-1028; 2016-1029; 2016-2842
UNION#2012-0234-0049; 2014-0234-0290; 2016-0234-0142; 2016-0234-0143; 2017-0234-0031
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(White) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Ken Petryshen
Arbitrator
FOR THE UNION
Richard Blair
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Felix Lau and Maria-Kristina Ascenzi
Treasury Board Secretariat
Legal Services Branch
Co-Counsel
HEARING July 7, Nov. 10, Dec. 18, 2017, Jan. 4, Feb. 5,
March 19, 20, 26, April 5, 6, June 28, July 19,
Aug. 28, 29, Sept. 28, 2018, Jan. 16, Feb.1,
March 4, 22, June 21, July 26 and Sept.3,
2019.
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DECISION
[1] The grievance before me was filed on behalf of Ms. Z. White, a Correctional
Officer (“CO”). It challenges the termination of Ms. White’s employment with the
Ministry. Ms. White started her employment as a fixed term casual CO in December
2005 and she became a classified CO in July 2013. The majority of her time as a CO
was spent at the Maplehurst Correctional Complex (“Maplehurst”). Union counsel
described Ms. White as a young black female, with two children. At the time of her
termination, Ms. White had just over 11 years of seniority, was 33 years of age and did
not have any discipline on her record.
[2] The reasons the Employer relied on to discharge Ms. White are set out in a
letter to her from Superintendent M. Parisotto dated March 7, 2017. The decision to
terminate Ms. White’s employment was made after a Local Investigation (“LI”), a
Correctional Services Oversight and Investigations (“CSOI”) investigation and an
allegation meeting. The termination letter advised Ms. White that the following
allegations had been substantiated:
Allegation 1
You refused to cooperate with a Ministry of Correctional Services Act Section 22
investigation failing to provide documents regarding the extent of secondary
employment and failing to attend interviews on April 18, 2016, May 18, 2016,
May 31, 2016, and October 6, 2016.
Allegation 2
You began secondary employment as a Real Estate Agent on February 3, 2012
and at no time did you inform the employer or submit a Conflict of Interest (COI)
Declaration.
Allegation 3
You failed to disclose criminal charges against you to the employer in writing or
through a COI Declaration.
Allegation 4
On April 29, 2010, you failed to sign out on the Attendance Register or use time
credits when you attended and testified at Brampton Court for trial on a criminal
assault charge against you.
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Allegation 5
On April 21, 2009 you attended Family Court for personal reasons and wore your
uniform without authorization.
Allegation 6
On April 21, 2009 you failed to sign out on the Attendance Register or use time
credits when you attended Family Court in the morning for personal reasons and
when you attended the police station for personal reasons prior to the end of your
shift.
Allegation 7
You failed to submit an Occurrence Report or COI Declaration identifying that
your brother Marcus White was in custody at Maplehurst.
Allegation 8
When on scheduled duty and Ministry premises you attended/spent time working
on Real Estate courses through correspondence.
Allegation 9
You falsified attendance/sign in sheets signing in/out for times that did not reflect
your actual arrival or departure from duty.
Allegation 10
On September 19, 2013 and multiple other dates you left your assigned post and
the facility without authorization.
[3] In her grievance dated March 10, 2017, Ms. White claims that “the Employer
breached Articles 2, 3, 21 by dismissing me without just cause and for dismissing me
based on reprisal for filing a human rights grievance and case against the Employer
based on my family status and race.”
[4] This proceeding required twenty-one hearing days over more than two years.
The Employer called the following seven individuals to testify: Superintendent Parisotto;
Mr. C. Boorsma, Operational Manager (“OM”), Security Office; Inspector L. McVeigh, a
CSOI Inspector; OMs S. Currie, C. Tyrell and C. Harris; and, F. Dhami, Staff Services
Manager. The Union called Ms. White and CO M. Archer, a Union steward, to testify.
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The documentary material filed in this proceeding was extensive. Counsel made their
final submissions during the last three hearing days. In deciding the issues before me, I
have carefully reviewed the oral and documentary evidence and I have considered the
submissions of counsel.
[5] The Employer’s general position is that Ms. White had engaged in a pattern
of conduct contrary to Standing Orders and Employer policies. More particularly, the
Employer claims that Ms. White engaged in serious misconduct such as time theft, a
failure to disclose a criminal charge and a failure to cooperate with a Ministry of
Correctional Services Act (“MCSA”) Section 22 investigation, in addition to less serious
acts of misconduct. The Employer maintains that Ms. White’s actions demonstrate a
high level of dishonesty and untrustworthiness. The Employer noted that Ms. White
often alleged and continues to allege that she is the victim of harassment and
discrimination rather than taking responsibility for her misconduct. The Employer
argued that Ms. White’s culpable misconduct has irreparably damaged the employment
relationship and constitutes just cause for dismissal. In the alternative, in the event I
determine that it did not establish just cause for discharge, the Employer argued that an
award of damages is appropriate in the circumstances, as opposed to reinstatement.
[6] In support of the Employer’s position, counsel relied on the following
decisions: U.F.C.W., Local 401 v. Canada Safeway Ltd., 2011 CarswellAlta 1028
(Wallace); Re Murdoch and Deputy Head (Canada Border Services Agency) (2015),
253 L.A.C. (4th) 278 (CPSLREB); Re I.U.O.E., Local 904 (Young) and Atlantic Minerals
Ltd. (2017), 279 L.A.C. (4th) 361 (Clarke); Re University of British Columbia and
C.U.P.E., Local 2950 (2001), 96 L.A.C. (4th) 38 (Larson); Re Surrey (City) and CUPE,
Local 402 (B.(R.), 2012 CarswellBC 3403 (Brown); Re Kenroe Tools Corp. and United
Steelworkers (1990), 17 L.A.C. (4th) 416 (M. Picher); Marian Jones and Ministry of
Community Safety and Correctional Services (2013), PSGB No. P-20053536
(Leighton); Re Oliver and Canada (Customs & Revenue Agency (2003), 118 L.A.C. (4th)
414 (CPSSRB); Re University of Alberta and AASUA (Brent) (2018), 289 L.A.C. (4th) 1
(Sims); OPSEU (Lunario) and Ministry of Community Safety and Correctional Services,
2015 CanLII 604425 (ON GSB Luborsky); Re Johnson Matthey Ltd. and United
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Steelworkers of America, Local 9046 (Murray) (2004), 131 L.A.C. (4th) 249 (Slotnick);
Re Sarens Canada Inc. and TC, Local 362 (Hall) (2017), 280 L.A.C. (4th) 186 (Casey);
Ontario Liquor Board Employees Union (Massa) and Liquor Control Board of Ontario
(2000), GSB Nos. 2033/97, 384/98, 385/98 (Abramsky); PEGO (Shannon) and Ministry
of the Environment (2005), GSB No. 2002-2915 (Herlich); OPSEU (Bonacci) and
Ministry of the Solicitor General & Correctional Services (1997), GSB No. 1923/96
(Dissanayake); Re Osprey Care Inc. (The Hamlets at Penticton) and Hospital
Employees’ Union (2012), 223 L.A.C. (4th) 274 (Sanderson); Toronto Transit
Commission v. CUPE, Local 5089 (Smith), [2014] O.L.A.A. No. 486 (Sheehan); Zehrs
Markets Inc. v. UFCW, Local 175 (Trepanier), [2006] O.L.L.A. No. 418 (Etherington);
and, Re World Kitchen Canada (EHI) Inc. and USWA, Local 9045 (Barnes), [2007]
O.L.A.A. No. 464 (Roberts).
[7] The Union’s general position is that the Employer was not entitled to
discipline Ms. White and that she should be reinstated to a CO position and fully
compensated for her losses. The Union claims that discipline for some of the alleged
misconduct should be voided due to the Employer’s delay in imposing discipline. In
referencing prior investigations of Ms. White’s conduct, primarily focused on unfounded
allegations of associations with inmates/ex-inmates, the Union claims that the
investigations that led to her termination were based on mere suspicion and that the
Employer was searching for some basis for terminating her employment only because it
could not prove that she had maintained inappropriate relationships with inmates/ex-
inmates. The Union also submitted that even if there was a basis to discipline Ms.
White for some of the allegations, the termination of her employment was an excessive
response in the circumstances. Counsel for the Union submitted that the awarding of
damages instead of reinstatement was an extraordinary remedy that was not justified in
this case. In its opening statement, the Union advised that it would be seeking human
rights damages for Ms. White. However, the Union did not pursue this issue in its final
submissions.
[8] Union counsel referred me to the following decisions: OPSEU (Dannenberg)
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and Ministry of Correctional Services (1991), GSB No. 414/89 (Dissanayake); OPSEU
(Bonacci) and Ministry of the Solicitor General & Correctional Services, supra; OPSEU
(Sammy et al.) and Ministry of Correctional Services, 2002 CanLII 45769 (ON GSB
Harris); OPSEU (Giraudy et al.) and Ministry of Community Safety and Correctional
Services, 2009 CanLII 59465 (ON GSB Petryshen); Re Manitoba Pool Elevators
Brandon Stockyards and U.F.C.W., Local 832 (1993), 35 L.A.C. (4th) 276 (Peltz);
University of Ottawa and IUOE, Local 796-B, decision dated October 4, 1994 (Bendel);
OPSEU (Lunario) and Ministry of Community Safety and Correctional Services, supra;
OPSEU (Chabanova) and Ministry of Community and Social Services, 2011 CanLII
23159 (ON GSB Devins); OPSEU (Rodriques) and Ministry of Labour, 2007 CanLII
14614 (ON GSB Brown); A.U.P.E. v. Lethbridge Community College, [2004] 1 S.C.R.
727; Ontario Liquor Board Employees Union (Massa) and Liquor Control Board of
Ontario, supra; and Re Public Service Employee Relations Act, [1987] 1 S.C.R.313.
[9] Before reviewing the incidents of misconduct relied on by the Employer, it is
useful to provide the general context for these incidents. The LI by OM Boorsma and
the CSOI investigation by Inspector McVeigh are significant features of the general
context.
[10] The incident which led to the decision to conduct the LI occurred on
September 19, 2013. Ms. White was scheduled to work a 10-hour X8 shift which
started at 0745 and ended at 1815, and included a 30-minute unpaid lunch break. As
was her practice, Ms. White signed in on the relevant sign-in/out sheet and at the same
time she also signed out by writing in the time of 1815. This practice was contrary to
the Employer’s requirement that employees are to sign out at the completion of their
shift. OM Harris, General Duty Manager on that day, noticed that Ms. White and some
other COs had recorded a sign out time of 1815 when she checked the sign-in/out
sheets at about 4:00 p.m. OM Harris went looking for Ms. White and the other COs to
address the improper sign out, but she could not find Ms. White. OM Botham did not
receive a response from Ms. White on the same day after he attempted to contact her
after 4:00 p.m. for an assignment by paging her twice and by calling her on the radio.
He was advised by a staff member that she had left at 4:00 p.m. and that her leaving
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early was not uncommon. OMs. Harris and Botham completed Occurrence Reports
(“ORs”) detailing the absence of Ms. White. It was subsequently confirmed by OM
Boorsma that Ms. White had left the institution at 1604 on September 19, 2013.
[11] On the following day, OM Harris directed Ms. White to submit an OR to
explain her absence from 4:00 to 6:00 p.m. on September 19, 2013. In her OR dated
September 23, 2013, Ms. White explained her absence by indicating that she was out of
the institution on her lunch break. The Employer did not accept that her absence in
excess of two hours was because she was on a lunch break. The Employer also
concluded that Ms. White left the institution without permission. Given the information
provided in the ORs from OMs Harris and Botham, the Employer decided to investigate
whether there were similar incidents to the one that occurred on September 19, 2013.
Accordingly, it assigned OM Boorsma to conduct a LI into the actual hours worked by
Ms. White to determine whether she had been arriving late and leaving early for her
scheduled shifts. At about the same time, Superintendent Parisotto asked OM
McDonald, Security Manager, to prepare an Executive Summary setting out reportable
incidents involving Ms. White during her career with the Ministry. This document was
last updated by OM McDonald on July 6, 2014. The Union claims that the Executive
Summary is not entirely accurate. In my view, the Executive Summary only serves to
illustrate the information that the Employer had relating to Ms. White at relevant times.
[12] OM Boorsma’s investigation included an examination of 20 X8 shifts Ms.
White worked starting on August 2, 2013 and ending on September 24, 2013. Utilizing
Digital Video Recording, he was able to determine when Ms. White arrived at work and
when she left the institution at the completion of her work day. These specific times are
set out in Appendix “A” of his Local Investigation Report (“LIR”). The Union conceded
during OM Boorsma’s testimony that the start and finish times set out in Appendix “A”
are accurate. OM Boorsma determined that Ms. White should have worked 200 hours
during the 20 shifts, but in fact only worked 160.5 hours. Because she did not use
credits for the time not worked, he calculated that Ms. White was paid $1,354.02 for the
39.5 hours that she did not work. OM Boorsma concluded that if Ms. White had
determined that it was appropriate to leave early based on not having a lunch break,
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“there are only 2 scheduled shifts where she would have left close to the approximate
times (September 10 and 23, 2013).”
[13] OM Boorsma’s findings in the LIR are as follows:
Ms. White did leave early on 20 scheduled shifts in August and September of
2013.
Ms. White was late for 11 of the 20 scheduled shifts in August and September of
2013.
Ms. White did sign in and out at the commencement of her shift.
Ms. White was absent from the workplace without authority.
[14] Ms. White was on sick leave from September 26, 2013, until May 26, 2014.
OM Boorsma completed his LIR on October 26, 2013, and Superintendent Parisotto
completed Part C of the LIR on June 25, 2014, the same day he completed a memo
about Ms. White to D. Hatt, Director-Central Region. Having consulted Labour
Relations and the Legal Services Branch, Superintendent Parisotto was prepared to
move forward with an allegation meeting regarding the findings in the LIR. However,
given information relating to Ms. White’s association with inmates/ex-inmates and a
concern about whether she was collecting sick leave benefits while engaged in
employment as a real estate agent, Superintendent Parisotto suggested to Director Hatt
that a discussion should take place to determine whether a CSOI investigation was
warranted for these other issues. Following further discussion, Director Hatt requested
a Level 1 CSOI investigation. The Employer decided not to proceed at that time with an
allegation meeting to address the findings in the LIR because it preferred not to be in a
position where it could be conducting two allegation meetings involving Ms. White. It
therefore decided to proceed with the CSOI investigation and to see if any allegations
were forthcoming from that investigation and, if there were, to address the findings of
the LIR and any findings of the CSOI investigation in a single allegation meeting.
Superintendent Parisotto speculated that having two allegation meetings would likely
have led Ms. White to make further allegations of harassment and discriminatory
treatment.
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[15] On July 22, 2014, Inspector McVeigh was assigned to conduct the CSOI
investigation. The initial focus of his assignment was to discover whether Ms. White
had undeclared conflicts of interest with offender associations and whether she was
working as a real estate agent while on sick leave. Inspector McVeigh determined at a
fairly early stage of his investigation that he would not be able to substantiate that Ms.
White had undeclared offender associations and he dropped that line of inquiry.
However, he did discover other issues of concern while in search of background
information for his investigation. By letter dated September 18, 2015, over a year after
he had been assigned to the investigation, Inspector McVeigh notified Ms. White of the
investigation under Section 22 of the MCSA. He advised Ms. White in the letter that she
was required to attend an interview on September 24, 2015, in order to provide a
statement concerning a possible contravention of Ministry policy. He also advised her
that there might be other issues identified for discussion and that a failure to cooperate
with the investigation may give the Ministry just cause to discipline her up to and
including dismissal. Inspector McVeigh explained in his testimony that the delay in
setting up the interview with Ms. White was a result of other significant duties that he
was required to perform during the relevant period.
[16] The CSOI interview with Ms. White did take place on September 24, 2015,
with CO Archer in attendance. At the outset, Ms. White expressed her view that the
investigation was part of ongoing harassment against her based on race and her status
as a single parent. Inspector McVeigh raised a number of issues with Ms. White,
including questions about her activity as a real estate agent. Some of the matters he
asked her about had occurred many years earlier. At the end of the meeting, Inspector
McVeigh requested that Ms. White provide him with certain information about her work
as a real estate agent and Ms. White agreed to do so. The last entry of Inspector
McVeigh’s interview summary in his report reads as follows:
. CO White agreed to gather and forward information regarding her work
calendar (if it can be found), the courses, real estate registrations and
transactions by Tuesday, October 13, 2015. She would see if she could get a
statement from her broker.
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[17] Ms. White went off on sick leave shortly after the interview with Inspector
McVeigh and did not provide the real estate information she had agreed to provide
before the deadline. Inspector McVeigh sent Ms. White a number of follow-up letters
compelling her to provide the information he had requested at her interview. For
example, in a letter dated March 30, 2016, Inspector McVeigh directed Ms. White to
provide CSOI with a copy of the following items:
. Employment contract with sponsoring real estate agency.
. All T4s from all agencies worked for since obtaining license to practice.
. A complete and official listing of listings to date.
. A complete and official listing from the broker of dates of closing of all
properties sold since obtaining employment.
. A written statement as to whether you ever worked as a real estate agent during
sick leave.
Inspector McVeigh also reiterated the following warning in this and other letters directing
Ms. White to provide the requested information: “Failure to provide the information may
result in discipline up to and including dismissal.” Inspector McVeigh also scheduled
other interviews for Ms. White to attend. Ms. White did not provide CSOI with the
requested information, nor did she attend any other scheduled CSOI interviews.
[18] Ms. White started another extended sick leave on May 30, 2016, and she
did not return to work prior to the termination of her employment. With no further input
from Ms. White, Inspector McVeigh finalized his report. In his CSOI Report dated
December 20, 2016, Inspector McVeigh noted in the analysis section that he was
unable to determine whether Ms. White worked as a real estate agent while on sick
leave because she obstructed the investigation. He concluded that the evidence
supported the following findings:
1. CO White did not cooperate with a MCS Act Section 22 investigation when
she failed to provide documents supporting the extent of her secondary
employment and failed to attend interviews on April 18, 2016, May 18, 2016, May
31, 2016, and October 6, 2016.
2. CO White commenced secondary employment as a Real Estate Agent on
February 3, 2012. She did not submit a Conflict of Interest Declaration.
3. The investigation was unable to determine the extent of CO White’s
secondary employment related to her work schedule or sick leave due to her
failure to cooperate with the MCS Act Section 22 Investigation.
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4. CO White admitted to working on a Real Estate course through
correspondence while on Ministry time and premises.
5. CO White failed to disclose criminal charges to her employer in writing or
through a Conflict of Interest Declaration.
6. On April 21, 2009, CO White failed to sign out on the Attendance Register or
use time credits when she attended Family Court in the morning and when she
attended the police station prior to the end of her shift.
7. On April 21, 2009, CO White wore her uniform without authorization when she
attended Family Court for personal reasons.
8. On April 29, 2010, CO White failed to sign out on the Attendance Register or
use time credits when she attended and testified at Brampton Court for trial on
her criminal assault charge.
9. CO White failed to submit an Occurrence Report or COI Declaration
identifying her brother Marcus White had been in custody at Maplehurst.
[19] Superintendent Parisotto reviewed the CSOI Report soon after it was
released. He advised Ms. White in a letter dated January 24, 2017, of the ten
allegations made against her as described previously in paragraph 2 of this decision
and he also advised her that an allegation meeting was scheduled for January 30, 2017.
Allegations 9 and 10 relate to the incidents that were the subject of the LIR completed
on October 26, 2013, by OM Boorsma. The allegation letter for the first time provided
Ms. White with notice that she was subject to discipline for conduct that had occurred in
August and September of 2013. The remaining allegations arose out of the CSOI
Report prepared by Inspector McVeigh.
[20] The allegation meeting did occur on January 30, 2017. At the outset of the
meeting, the Union asked the Employer to provide it with all of the dates relevant to
allegations 9 and 10. The Employer refused with the result that this information was
only provided to the Union during the disclosure process in this proceeding.
Superintendent Parisotto determined that Ms. White and the Union did not provide
reasonable explanations to refute the allegations or to mitigate her conduct. After
further consultations, he concluded that Ms. White’s misconduct was very serious and
that the Employer could not trust her to fulfill her employment obligations in the future.
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He expressed the view in his testimony that the failure to cooperate with the MCSA
Section 22 investigation alone justified the termination of Ms. White’s employment.
Superintendent Parisotto strongly denied that his decision to discharge Ms. White was
influenced by the unproven allegations that Ms. White had undeclared associations with
inmates/ex-inmates.
[21] Ms. White claims that the CSOI investigation was simply another example of
harassment and discriminatory treatment she received at Maplehurst. In referring to the
workplace as toxic, Ms. White explained that there were a number of COs who spread
rumours about her at the workplace and other COs who did not enjoy working with her
because of the untrue allegations. Because of the rumours, Ms. White indicated that
she was the subject of a number of investigations for such things as bringing drugs into
the institution or for having an association with inmates/ex-inmates. There was not
much detail provided in the evidence about these investigations, but that evidence is
worth noting because Ms. White relied on the previous investigations as one of the
reasons for her not cooperating with the MCSA Section 22 investigation.
[22] In 2012, there were rumours circulating in the institution about Ms. White in
relation to inmate Turpin. Some of this information came from COs, but information also
came from other inmates and Turpin himself. Among other things, it was alleged that
Ms. White was passing Turpin chip bags containing drugs and that Turpin referred to
Ms. White as “her boyfriend”. During an interview, Turpin claimed that “Zuri White is
bringing him stuff”. It does not appear that the Employer pursued an investigation or
asked Ms. White about these matters in 2012. Inmate Turpin was transferred to
another institution in September of 2012 and was released in April of 2013.
[23] Soon after Turpin was released, another rumour began to circulate that Ms.
White was in a serious relationship with Turpin. The information was that Ms. White told
a female CO that she was in a serious relationship with Turpin after he had been
released. That CO apparently passed this information on to another female CO who in
turn passed the information on to a third female CO, who on the advice of her Union
steward decided to disclose what she had heard about Ms. White in an OR. As in the
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case of all ORs, the OR about Ms. White eventually came to the attention of
Superintendent Parisotto. He initiated a LI and he testified that he did so to ascertain
whether the information about Ms. White was factual, and if not, he wanted to get the
staff to stop spreading false rumours about Ms. White. The first and the second CO in
the rumour chain were asked to write an OR. The three COs were interviewed, as was
Ms. White. At Ms. White’s interview with Deputy Superintendent (“DS”) Marchegiano, it
was noted that the Employer was aware that there had been allegations or rumours in
the past about her association with inmates. Ms. White was directly asked if she was
seeing an ex-offender. She replied “No” and wrote an OR as directed confirming her
response. When the CO who allegedly initiated the information about Ms. White was
interviewed, she indicated that she did not know anything about Ms. White being
involved with an inmate. With the indication that the information about Ms. White was
not factual, the LI ended without any allegations made against her.
[24] Another investigation took place in August and September of 2013 that had
an impact on Ms. White. This investigation focused on another CO who, in the
presence of other COs, stated that Ms. White had been in Miami and was caught
smuggling cotton across the border. The racist undertones of the comment
considerably upset Ms. White. The Employer took this situation seriously and
addressed the matter by suspending the CO for twenty days and placing him at a
different institution. DS Gauthier met with Ms. White and CO Archer and informed them
of the results of the investigation.
[25] And then there was the Employer’s decision to again inquire into the issue
of Ms. White’s association with inmates/ex-inmates in the CSOI investigation. After
being contacted by an OPP Officer with Organized Crime Enforcement who inquired
about Ms. White, the Employer received the following information in October of 2013:
“information confirmed that CO White was in a non-reported association with a known
Security Threat Group (Bloods) member Nicholas Andre LEVEIN (Oct. 13, 1982) on
September 22, 2013 crossing at the Buffalo Peace Bridge.” Having surfaced after the
investigation involving ex-inmate Turpin, the Employer believed that it was necessary to
have this issue revisited as part of the CSOI investigation. As noted previously,
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Inspector McVeigh determined quite early in his investigation that he would pursue this
issue further. His findings in the CSOI Report do not reference the issue of Ms. White’s
association with inmates/ex-inmates and this issue was not a matter that was raised by
Mr. Parisotto in the allegation meeting with Ms. White on January 30, 2017.
[26] I will now turn to address each of the allegations the Employer relied on to
sustain the termination of Ms. White’s employment. I will deal first with the two
allegations which came from the LIR conducted by OM Boorsma. I will then address
the allegations flowing from CSOI Report in chronological order. As indicated
previously, Employer counsel conceded that some of the allegations were not that
serious in comparison to some of the other allegations. My approach in reviewing each
of the relevant incidents is not only to determine if the Employer had just cause to
discipline Ms. White, but also to determine whether the incident, in light of all of the
allegations, could support the conclusion that the Employer had just cause to terminate
Ms. White’s employment.
Allegations 9 and 10
[27] After reviewing 20 shifts in August and September of 2013, the Employer
claims that Ms. White falsified attendance/sign in sheets signing in/out for times that did
not reflect her actual arrival or departure from duty and that on September 19, 2013 and
multiple other dates she left her assigned post and the facility without authorization.
[28] For each of the 20 X8 shifts, Ms. White signed in at 0745 and at the same
time wrote in a sign out time of 1815. Although signing out at the same time a CO signs
in is contrary to Employer policy, I accept Ms. White’s testimony that she was trained to
sign in and out in this way and that this has been her practice for as long as she has
been a CO. Mr. Archer testified that he has been following the same practice for 22
years. They both indicated that this is the invariable practice of the majority of COs.
The occasional memo from the Employer reminding COs that they must sign in for the
time they arrive on duty and sign out for the actual time they leave duty would be
complied with for a brief period, but then the COs would revert back to the usual
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practice. When a CO records a sign out time of 1815 at the start of their shift, it is
presumably done with the knowledge that this is the time the CO expects his or her shift
to end. COs are aware that the time recorded on the sign in/out sheets is the basis
upon which they are paid. It is worth noting here that the Employer did not discipline
Ms. White because she signed out at the same time that she signed in for the 20 X8
shifts.
[29] There is no dispute that the following chart contained in the LIR accurately
sets out the start and finish times for the 20 X8 shift worked by Ms. White:
Date Worked Start time Finish Time
August 2, 2013 08:57 15:57
August 15, 2013 07:55 16:04
August 16, 2013 07:55 15:54
August 20, 2013 07:55 16:10
August 21, 2013 07:55 16:33
August 22, 2013 08:06 16:12
August 23, 2013 07:58 16:10
August 27, 2013 07:57 16:09
August 28, 2013 08:22 17:02
September 2, 2013 08:13 15:56
September 5, 2013 09:15 16:17
September 6, 2013 09:11 16:13
September 9, 2013 08:11 16:18
September 10, 2013 08:00 17:20
September 12, 2013 08:08 16:09
September 13, 2013 08:01 16:02
September 17, 2013 08:02 16:12
September 19, 2013 07:59 16:04
September 23, 2013 08:02 17:27
September 24, 2013 08:00 16:01
-16-
[30] Ms. White provided a number of explanations for why she could have left
before the completion of her shift on the above dates. She indicated that she often
worked through her breaks, including her lunch break, which meant that she could leave
early. She indicated that there were times when the work would be completed giving
her the option of leaving early. She also indicated that she had a family accommodation
to permit her to leave early so she could pick her child at daycare, which closed at 6:00
p.m. The daycare was about 15 minutes from the institution. Ms. White emphasized
that she never left work early without obtaining permission from a Manager.
[31] Did Ms. White leave the institution before the end of her shift on September
19, 2013, without permission? The evidence appears to suggest that it is more likely
than not that Ms. White did leave Maplehurst before the end of her shift without
permission on that day. This is the day that OM Harris could not locate Ms. White within
the institution after 4:00 p.m. Ms. White left Maplehurst on that day at 16:04 rather than
at 18:15, when her shift ended and the time she had signed out for. As the General
Duties Manager, Ms. Harris would usually be the person to give an employee
permission to leave early and she clearly did not give Ms. White such permission. Ms.
White believes that she got permission to leave from the Unit Manager, but she could
not recall who her Unit Manager was on that day. On September 20, 2013, in the
morning, Ms. Harris asked Ms. White to write an OR to explain her absence from 16:00
to 18:00 hours on the previous day. Shortly after this request was made, Ms. White
advised Ms. Harris that she was not feeling well, that she was going home and that she
would write her OR when she returned. The only explanation she gave in the OR she
completed on September 23, 2013, for being absent from the institution was that she
was out of the institution on her lunch break. When asked to justify a two hour absence,
one would have thought that she would have indicated in her OR that she had
permission to leave and who gave her the authorization to leave early. Her failure to
indicate that she had permission to leave early in these circumstances tends to conform
that she left early on September 19, 2013, without permission. This also puts in
question whether she had permission to leave the institution early on the other 19 shifts.
Even if Ms. White had worked through lunch on September 19, 2013, it is very difficult
to see how that would justify leaving about two hours before the end of her shift.
-17-
[32] To the extent that there may be some uncertainty as to whether Ms. White
left the institution with permission on the 20 X8 shifts, there is no uncertainty about
whether or not she falsified attendance sheets signing in/out for times that did not reflect
her actual arrival or departure from duty. As the chart set out in paragraph 28 discloses,
Ms. White did not ever sign in for the time she arrived and when she left Maplehurst at
the end of her work day. For the majority of the 20 days, she arrived at work after 0800
and left at around 1600, or shortly thereafter. And yet on each day Ms. White signed in
at 0745 and signed out for 1815 and was paid for ten hours of work. There was no
evidence as to how an employee would sign out in circumstances where the employee
had worked through lunch and paid rest periods. Nonetheless, I agree with counsel for
the Employer’s submission that it is a “fantastical notion” that Ms. White would be
justified in taking from 2 to 3+ hour breaks and still be entitled to be paid as if she had
worked a complete shift.
[33] To the extent that there may be some doubt about the recorded departure
times, there can be no doubt that she falsified her arrival times. On the morning of
September 23, 2013, Ms. White was asked to write a report by OM Millet to explain why
she was late for work on that day. In her OR, she wrote that she arrived at
approximately 0755 and that she was delayed “due to unforeseeable circumstances (i.e.
traffic).” The last paragraph of the OR reads as follows: “There are staff members here
that are just as tardy as me, if not more, yet, they’re not subject to the same
repercussions as I am. This workplace is a toxic environment that thrives on
favouritism. I am constantly being targeted, harassed, and intimidated by my fellow co-
workers and management. It needs to stop.” The chart indicates that Ms. White arrived
at work on September 23, 2013, at 0802, some 17 minutes late. There were three
occasions when Ms. White arrived at work over an hour late and still recorded an arrival
time of 0745. The falsification of these arrival times alone is evidence of dishonesty on
the part of Ms. White and substantiates the Employer’s claim that she willfully engaged
in time theft.
[34] The Union argued that any discipline imposed on Ms. White for allegations 9
and 10 should be deemed void because of delay. A review of the relevant cases
-18-
indicates that it is appropriate to consider the following factors when determining
whether delayed discipline should be deemed void: (1) the length of the delay; (2) the
reasons for the delay; and, (3) the prejudicial impact of the delay. Arbitrators have long
held that discipline should be imposed in a timely way and a failure by an employer to
adhere to this principle could lead to the voiding of the discipline. It is important to
consider the reasons for the delay because the delay may very well have been
reasonable in the circumstances, even if there was a significant delay in imposing
discipline. However, the presence of unreasonable delay, by itself, is not sufficient to
deem the discipline void. The most important factor for consideration is whether the
delay has been unfair or prejudicial to the grievor or the Union in that the delay has had
a detrimental impact on their ability to respond to the allegations. In assessing the
prejudicial impact, arbitrators will consider whether the allegation relates to a routine
work activity, which an employee may have some difficulty in recalling, or whether the
allegation relates to unusual or extraordinary events, which an employee is more likely
to recall. If the delay argument is made during final submissions, as it was in the instant
case, the arbitrator is in a position to assess whether there has been actual prejudice
without the necessity of deciding whether there has been inherent prejudice. Whether
excessive delay will void discipline will depend on the facts in each case.
[35] OM Boorsma initiated his investigation in September of 2013 and he
submitted his LIR on October 26, 2013. Once Ms. White returned from sick leave, the
Employer elected not to hold an allegation meeting with Ms. White. It elected to initiate
the CSOI investigation which was not completed until December of 2016. This is not a
case where an employee was aware that he or she might be disciplined for an incident,
but execution of the discipline was unduly delayed. Ms. White was unaware that she
might be disciplined for what occurred in August and September 2013 until she received
the allegation letter from Superintendent Parisotto dated January 24, 2017, in which
allegation 9 & 10 were referenced. A delay of over 2½ years is obviously excessive and
I am also satisfied that the delay was unreasonable in the circumstances. To wait until
Ms. White returned from sick leave was consistent with the Employer’s practice and
reasonable. However, in my view, it was unreasonable to defer the allegation meeting
until the CSOI investigation was completed in order to avoid two allegation meetings. I
-19-
appreciate that Inspector McVeigh had a number of important matters to deal with, but
the delay from July 22, 2014, when he started the investigation, until September 18,
2015, when he notified Ms. White of an interview date, was not reasonable. As noted in
OPSEU (Dannenberg), supra, the fact that the investigator had other investigations to
conduct was not a valid excuse for a 5-month delay. A better course for the Employer
to have followed in this instance would have been to advise Ms. White of the allegations
soon after she returned from sick leave and to have held an allegation meeting. The
Employer could have then taken the option of delaying the imposition of any discipline
until the completion of the CSOI investigation. This approach would have provided Ms.
White with notice of the allegations a lot earlier and provided the Employer with a
reasonable explanation for why it elected not to impose discipline at that time.
[36] The prejudicial effect of the delay is significant for allegation 10. Allegation
10 is about whether Ms. White left her post and the institution without permission on the
20 relevant shifts. This is a subject that concerns normal every day work events. Not
surprisingly, Ms. White could not recall what her assigned duties were for those shifts.
Although she was definite that she did not leave work on those days without permission,
she was unable to recall who her Unit Manager was on September 19, 2013, and on the
other dates. Given the excessive delay, Ms. White was put in a position where it would
have been very difficult to recall the kinds of matters necessary to convincingly support
her claim that she left those shifts with permission. It would therefore be unfair to permit
the Employer to discipline Ms. White for allegation 10 because of its delay in initiating
the discipline process. The same prejudicial effect is not present with allegation 9.
Allegation 9 is about whether Ms. White falsified sign in/out sheets in that she did not
record her actual arrival and departure times for the 20 shifts in question. Ms. White
and the Union were able to agree that the Digital Video Recording system accurately
captured her arrival and departure times. Although she could not recall the details of
why she arrived late and why she was able to leave early, these details are not relevant
to allegation 9. There was also no issue over the times that she recorded on the sign
in/out sheets. Recording times on the sign in/out sheets that are not accurate would fall
into the category of unusual events. In these circumstances, even with the Employer’s
excessive unreasonable delay in imposing discipline based on allegation 9, Ms. White
-20-
and the Union were not prejudiced in their ability to defend against this allegation.
There is no basis therefore for finding that the delayed response with respect to
allegation 9 precludes the Employer from relying on this allegation to support the
termination of Ms. White’s employment.
Allegation 7
[37] The first allegation that I will address flowing from the CSOI investigation is
allegation 7. In this allegation the Employer claims that Ms. White failed to submit an
OR or COI Declaration indicating that her brother Marcus White was in custody at
Maplehurst. The Employer does not rely heavily on this allegation and it is easy to see
why it takes this position. The incident occurred on April 15, 2007, when Ms. White was
off work on maternity leave. She attended with her mother at Maplehurst to visit her
brother who was in custody. She and her mother signed in and out on the Visitors’
Register. She advised OM Haydar, the General Duties Manager, why she was there
and was told that she would have permission to visit her brother through normal visiting
procedures, which she and her mother utilized. OM Haydar advised the on call
Superintendent about the incident and he completed an OR about the event that went to
the Superintendent at the time. Ms. White was not asked to document the incident
when she returned from maternity leave.
[38] There is an obligation in this type of circumstance on a CO to document the
fact that a relative is an inmate. In this instance, the fact that Ms. White did not
document the fact that her brother was an inmate is at best a technical breach of the
rules. She was certainly not hiding the fact that Marcus was her brother. Management
was clearly advised of the relevant circumstances even though Ms. White did not
document the incident. The Employer was aware that she did not document the matter
and it did not direct her to do so when she returned from maternity leave. I find that
there is no cause to discipline Ms. White in 2017 for the circumstances described in
allegation 7.
-21-
Allegations 3, 5 and 6
[39] These allegations relate to Ms. White’s attendance at Family Court on April
21, 2009. Allegation 6 is a time theft allegation in which the Employer claims Ms. White
failed to sign out or use time credits when she attended Family Court for personal
reasons and when she attended the police station prior to the end of her shift.
Allegation 5 claims that Ms. White wore her uniform when she attended Family Court on
April 21, 2009. And allegation 3 claims that Ms. White did not disclose a criminal
charge against her. Ms. White was criminally charged with assaulting Mr. R. Jackson
on April 21, 2009, for an incident which occurred earlier that day while they both
attended Family Court. Mr. Jackson is the father of Ms. White’s second child.
[40] On April 21, 2009, Ms. White was scheduled to work from 0645 to 1915 and
the sign in/out sheet indicates she signed in at 0645 and signed out for 1915. Ms.
White attended at Family Court on that day to address issues of child support and
access. She arrived at Family Court for the proceeding no later than 9:45 a.m. and
returned to work at approximately noon. She then left Maplehurst at about 6:00 p.m.
and went to a police station at the request of the police. It was during her attendance at
the police station that she was charged with assaulting Mr. Jackson. Prior to the
commencement of the Court proceeding earlier that day, Ms. White and Mr. Jackson
had an argument about his responsibilities to his son. Mr. Jackson claimed that Ms.
White physically assaulted him during the argument. During the previous two years,
Ms. White attended Family Court on a number of occasions to deal with family law
matters. OMs Harris and Tyrrell gave Ms. White permission to attend Family Court over
her lunch break. If her attendance at Family Court required more time, it was expected
that Ms. White would use credits to cover the hours of work she had missed. Ms. White
did not sign out when she left work to attend Family Court. In denying allegation 6, Ms.
White’s testified that she and other COs never sign out when leaving the institution on a
break. At one point she indicated that she did not have to use credits on this occasion
because she was off work using her breaks and later she agreed that these are the
types of circumstances where a CO should use credits. I accept Ms. White’s testimony
that she and other COs do not sign out/in when leaving the institution on breaks.
-22-
However, Ms. White was not absent from Maplehurst on April 21, 2009, on what could
be considered her normal breaks and she would have recognized that this was the
case. Because of the way she signed in/out, she received 12 hours pay for that shift.
Yet she was away from the institution attending to personal matters for at least 3 to 4
hours during her shift. This is clearly a case where Ms. White should have accurately
recorded her work hours or used credits to make up for the lost work time. Her failure to
do so amounts to willful time theft.
[41] The Standings Orders provide that the uniform shall not be worn when off
duty, except when traveling to and from work and where the Superintendent has given
approval in writing. Ms. White wore her uniform while at Family Court on April 21, 2009.
Superintendent Parisotto explained the reason for the Standing Order and indicated that
he would not have given Ms. White permission to wear her uniform at Court. Ms. White
testified that she did not think of the Standing Order when she wore her uniform to
Family Court. Ms. White indicated that she would not wear her uniform while off duty in
the future if she was reinstated. Ms. White certainly contravened the Standing Order as
alleged and she could be disciplined for this misconduct. However, I do not see this
particular offence as having much influence on the central question of whether the
Employer had just cause to dismiss Ms. White’s employment.
[42] The Standings Orders provide that an employee charged with or found
guilty of a criminal offence must notify the Superintendent without delay. The
notification shall include the nature of the offence, whether the offence occurred during
the course of employment with the Ministry and the dates of any future legal
proceedings. Once notified, the Superintendent could take a number of steps
depending on the circumstances. Ms. White did not comply with this Standing Order
when she was charged with assault on April 21, 2009. Indeed, she never disclosed the
criminal charge and it was only because Mr. McVeigh was very thorough in the CSOI
investigation that the criminal charge came to light. Ms. White testified that she did not
know she was required to disclose the criminal charge and then indicated that she
decided to keep it to herself because the workplace was toxic. She indicated that she
was not sure that the criminal charge would stay private if she disclosed it to
-23-
management and that it would be one more thing that some of her co-workers would
spread rumours about. Ms. White advised Mr. McVeigh during her interview that she
should have disclosed the criminal charge and apologized for not doing so. She
testified that if she was ever in the same position in the future that she would disclose
the criminal charge. As described previously, the criminal charge related to a personal,
non-Ministry event. Ms. White was acquitted at trial. The trial judge believed her
version of the event and not the version put forward by the prosecution witnesses.
[43] Ms. White’s failure to comply with the Standing Order and disclose the
criminal charge in writing to the Superintendent is a serious matter. Claiming to be
unaware of the Standing Order is not a defence. In any event, it is clear that Ms. White
was aware that she was required to disclose the criminal charge. I agree that she
should have complied with the Standing Order and that any concerns she may have
had about a toxic workplace did not justify her decision not to disclose the criminal
charge to the Superintendent.
Allegation 4
[44] In this allegation the Employer claims that on April 29, 2010, Ms. White
failed to sign out or use time credits when she attended her criminal trial at Brampton
Court to defend the assault charge. On that day Ms. White was scheduled to work from
0745 to 2015, and she signed in at 0745 and signed out for 2015. She did not sign out
to attend at Brampton Court and she did not use credits to cover her absence from
work. She was paid 12 hours for that day. Ms. White did receive permission from OM
Tyrrell to attend Court. However, OM Tyrrell understood that she was going to Family
Court again over her lunch break because Ms. White did not advise him that she was
going to Court to defend a criminal charge. Her criminal trial began in the afternoon and
it is unclear how long Ms. White was away from work attending the trial. What is clear
from the transcript is that the trial did take a significant amount of time. It included the
direct and cross-examination of three witnesses, closing arguments by counsel and the
judgment from the Court. When Inspector McVeigh advised Ms. White during her
interview of her work schedule for April 29, 2010, she told him that this must have been
-24-
a mistake because she was at Court on that day. During her cross-examination, Ms.
White testified that she did not think that the criminal trial would take a long time and
conceded that maybe she should have booked off for the day. When asked if she now
recognized that she should have booked off work for April 29, 2010, she responded
“Yes”. Her actions on April 29, 2010, is another example of Ms. White failing to record
her work hours accurately. In the circumstances, this failure amounts to another
instance of willful time theft.
Allegation 8
[45] The Employer claims in allegation 8 that Ms. White was working on real
estate courses while on duty and on Ministry premises. Superintendent Parisotto
testified that a CO is paid to work on work time and not paid to do personal tasks. Ms.
White agreed that in around 2010 and 2011 she would read real estate materials for her
courses in the rotunda area of the institution when she had no duties to perform.
Managers were aware that she was doing this and no one asked her to stop. Ms. White
testified that other COs also spent spend time reading in similar circumstances. Mr.
Archer confirmed that COs regularly would read various materials in the rotunda area
when they had no duties to perform. The Employer concedes that this is one of the less
serious allegations and I certainly agree with that assessment. The evidence supports
the conclusion that the Employer condoned the activity that forms the basis for
allegation 8. I am satisfied that there is no justifiable basis to discipline Ms. White for
reading real estate materials while on duty many years ago.
Allegation 2
[46] In this allegation the Employer claims that Ms. White began secondary
employment on February 3, 2012 as a real estate agent and did so without informing
the Employer or submitting a COI Declaration. The Employer takes the position that the
mere fact of engaging in secondary employment requires a Ministry employee to submit
a COI Declaration. Counsel for the Union devoted some time arguing that this
Employer position is not correct. After considering the relevant policy and Maplehurst’s
Standing Order on conflict of interest, it is not clear to me that secondary employment
-25-
by itself requires a Ministry employee to file a COI Declaration. Whether the nature of
the secondary employment is such that the employee’s private interests may be in
conflict with his/her public service responsibilities is a separate question.
[47] Ms. White asserts that she was not aware that she was obliged to file a COI
Declaration when she became a real estate agent. She also testified that no one in
management told her that she had such an obligation and that if she had been told that
she was required to submit a COI Declaration, she would have done so. I accept her
assertions on these matters as true. Soon after becoming registered as a real estate
agent, Ms. White placed her business card on the bulletin board in the sign in/out room
at Maplehurst. Managers were aware that Ms. White was working as a real estate
agent. The Executive Summary indicates that management confirmed in 2013 using
Google that Ms. White worked as a real estate agent. There certainly was no effort on
Ms. White’s part to hide her secondary employment. I appreciate that the onus is on an
employee to bring forward a COI situation. However, in these circumstances, I believe
there is some merit in Union counsel’s submission that there was some obligation on
the Employer to advise Ms. White to file a COI declaration if it felt that she was required
to do so, rather than waiting for a number of years and using this allegation as a basis
for discipline. In my view, the Employer has not established that it had just cause to
discipline Ms. White for not submitting a COI Declaration relating to secondary
employment as a real estate agent. In any event, even if her failure to file such a
Declaration was deserving of some discipline, such a failure would not carry significant
weight on the issue of whether the Employer had just cause to the terminate Ms.
White’s employment.
Allegation 1
[48] The Employer claims in this allegation that Ms. White failed to cooperate in
a MCSA Section 22 investigation by failing to provide documents relating to the extent
of her secondary employment and by failing to attend interviews on April 18, 2016, May
18, 2016, May 31, 2016 and October 6, 2016. As noted previously, Mr. Parisotto
believed that this misconduct alone justified the termination of Ms. White’s employment.
-26-
[49] Section 22(1) of the MCSA provides as follows:
22(1) The Ministry may designate any person as an inspector to make
such inspection or investigation as the Minister may require in connection
with the administration of this Act, and any person employed in the
Ministry who obstructs an inspection or investigation or withholds,
destroys, conceals or refuses to furnish any information or thing required
by an inspector for the purposes of the inspection or investigation may be
dismissed for cause from employment.
[50] This warning is also contained in the protocol attached to the CSOI
interview notices that were sent to Ms. White by Inspector McVeigh. Paragraph 4 of the
protocol provides as follows:
If the employee refuses or does not wish to make a statement or fails to
attend an interview when requested, the inspector has authority under the
Ministry of Correctional Services Act to insist that the employee provide
“any information or thing required by an inspector for the purposes of the
inspection or investigation”. The employee will be cautioned that the
failure to comply with the request of the inspector may give just cause to
discipline or dismiss the employee.
[51] As described earlier, Inspector McVeigh was assigned to conduct a CSOI
investigation with respect to Ms. White and he interviewed her on September 24, 2015.
Ms. White agreed at the conclusion of the interview to provide Inspector McVeigh with
certain materials, but she never did provide him with these materials. The information
of most interest to Inspector McVeigh was a listing of her real estate transactions during
the relevant period. Although Ms. White indicated more than once during her testimony
that she had answered Inspector McVeigh’s questions and did so honestly, the
information she had provided during the interview was not accurate in some instances
and was not very detailed. Given his mandate, Inspector McVeigh’s request for further
information and his efforts to schedule another interview to question Ms. White further
about additional information he had received after the interview were reasonable in the
circumstances.
[52] Allegation 1 sets out the dates when Ms. White failed to attend interviews
that had been scheduled by Inspector McVeigh. Apart from the date of May 18, 2016,
the other dates fell on days when Ms. White was off on sick leave. Ms. White was not
-27-
directed to attend an interview even though she was off on sick leave. I agree with the
Union that it is unlikely that the Employer expected that she would attend an interview
when she was off work on a leave due to illness. I appreciate that on May 26, 2016,
Ms. White signed for the receipt of the letter from Inspector McVeigh advising her of the
interview scheduled for May 31, 2016, and then went off on sick leave just prior to the
scheduled interview. Nonetheless, I am not prepared to conclude that Ms. White’s
failure to attend a CSOI interview when she was on sick leave is evidence of a failure to
cooperate with a MCSA Section 22 investigation. However, Ms. White was attending
work for a period of time before and on May 18, 2016.
[53] In a letter to Ms. White dated May 11, 2016, Inspector McVeigh again
compelled her to provide him with certain information upon receipt of the letter and
advised her that the next interview was scheduled for May 18, 2016. Inspector McVeigh
requested the assistance of Deputy Superintendent (“DS”) Marchegiano for the purpose
of delivering the letter to Ms. White. Following DS Marchegiano’s requests, OM Currie,
on May 12, 2016, and OMs Currie and Tyrrell, on May 13, 2013, attempted to deliver
the letter to Ms. White at Maplehurst. On both occasions, Ms. White refused to accept
the letter and advised the OMs that the letter should be sent to her lawyer. On May 13,
2016, with CO Archer present, OM Tyrrell told Ms. White that she had a meeting with
Inspector McVeigh on May 18, 2016, provided her with the details of the meeting and
told her that she was required to attend. After again refusing to accept the letter, Ms.
White became upset and she and CO Archer left the meeting. Ms. White testified that
she could not recall if she knew about the interview on May 18, 2016, when she left the
meeting with the OMs. CO Archer also testified that he could not recall OM Tyrrell
mentioning another interview with Inspector McVeigh. On May 18, 2016, the day of the
scheduled interview, DS Marchegiano had a meeting in his office with Ms. White and
CO Archer. DS Marchegiano asked Ms. White if she was attending the interview with
Inspector McVeigh scheduled for that day on Haines Road. Ms. White replied that she
was not aware of a meeting and that she was not attending. DS Marchegiano did not
specifically direct Ms. White to attend the meeting.
[54] Ms. White viewed the attempts by the OMs to deliver the letter to her as
-28-
another example of harassment and discriminatory treatment. She indicated that she
had never been asked to accept a letter from an OM in the past and she was being
singled out on May 12 and 13, 2016, for different treatment. It is common however for
an Inspector conducting a CSOI investigation to have someone at the institution deliver
correspondence to an employee. This was the first time Ms. White was a subject
employee in a CSOI investigation. I am satisfied that the attempts by OMs Currie and
Tyrrell to deliver the letter to Ms. White at the institution did not amount to harassment
or discriminatory treatment.
[55] I am also satisfied that on May 13, 2016, OM Tyrell advised Ms. White of
the interview scheduled for May 18, 2013, with Inspector McVeigh and that he told her
that she was required to attend. By the end of that meeting Ms. White would have been
aware that she was refusing to accept a letter compelling her to attend an interview with
Inspector McVeigh. This all occurred in the context of Ms. White having attended one
interview with Inspector McVeigh and having received a letter from him to attend an
interview scheduled for April 18, 2016. Ms. White was likely upset with the events of
May 13, 2013, because she appreciated that she was being required to attend another
interview with Inspector McVeigh. On May 18, 2013, Ms. White clearly decided not to
attend the CSOI interview scheduled for later that day and advised DS Marchegiano
accordingly. In light of theses circumstances, I find it more likely than not that Ms.
White’s refusal to accept the letter from OM Tyrrell and her refusal to attend the
interview scheduled for May 18, 2016, constituted non-cooperation with a MCSA
Section 22 investigation.
[56] It is clear that Ms. White did not provide the real estate documentation
pursuant to the direction she had received from Inspector McVeigh. Most importantly,
she did not provide Inspector McVeigh with her real estate listings and transactions so
that he could make a determination as to whether she was abusing sick leave before he
completed his investigation. Inspector McVeigh made an unsuccessful effort to secure
this information from the Real Estate Council of Ontario and from Ms. White’s Broker of
Record, Homelife/Vision Reality Inc. Ms. White did provide this information to Union
counsel at his request and the information was filed as Exhibits in this proceeding. She
-29-
had no difficulty in quickly securing the requested information which is contained in
Exhibits 12 and 13. During her cross-examination Ms. White indicated that she knew
that the information in Exhibits 12 and 13 was what Inspector McVeigh has asked her to
produce, that she could have given him that information at any time and that she chose
not to. The information disclosed that Ms. White was engaged in a real estate practice
to a limited degree and that she had been involved with two transactions while on sick
leave.
[57] Ms. White had a variety of responses to the question of why she did not
provide Inspector McVeigh with the information he had requested. She indicated that
her relationship with the Employer was strained due to the fact that she had been
continuously investigated, harassed and treated unfairly and she believed that the
Employer had no business in finding out what she was “making on the side”. She
explained that after her interview on September 24, 2015, she calmed down and came
to the conclusion that Inspector McVeigh’s requests were too intrusive and that she was
being treated unfairly, like in the previous investigations. She indicated that she would
have had no problem in providing the information if this was the first time she was being
investigated, but this was the sixth investigation and she just had had enough. She also
indicated that she simply did not know if she had a right to keep the information to
herself, although there was no indication that she sought advice on this question from
anyone, including the Union. When asked by Union counsel what she would do if she
was in the same position now, Ms. White indicated that she would provide the
information because she did not want to go through this again. During her cross-
examination, she reiterated that she could not comply with Mr. McVeigh’s request for
information when she was on sick leave. She indicated that she believed that the
Employer was harassing her by asking her to provide information about matters
unrelated to her work as a CO. She stated that the Ministry was precluded from looking
at whether there had been an abuse of sick leave and that it was within her rights not to
give the information to Inspector McVeigh. Ms. White also reiterated that the Ministry
was harassing her and discriminating against her by conducting the CSOI investigation.
Ms. White indicated that she did not think of providing the requested information to
Superintendent Parisotto at the allegation meeting.
-30-
[58] As noted previously, Inspector McVeigh’s direction to Ms. White to provide
him with specific information about her real estate listings and transactions for the
relevant period was a reasonable direction in the circumstances. He certainly gave Ms.
White every opportunity over a long period of time to comply with his direction. She
could have easily complied with his request, but she simply decided not to for a variety
reasons that are not acceptable. The MCSA compels Ms. White to not obstruct an
investigation be refusing to provide information required by an inspector and provides
that a failure to comply with such requests are serious enough that such conduct could
lead to dismissal. There is no doubt on the evidence that Ms. White failed to cooperate
and did obstruct the MCSA Section 22 investigation conducted by Inspector McVeigh by
not providing him with relevant information. Without this information, Inspector McVeigh
was unable to determine an important question in the investigation, namely whether Ms.
White had worked as a real estate agent while she was on sick leave.
[59] As part of the context for the LI and the CSOI investigation, I previously set
out the evidence about previous investigations relating to Ms. White and why she
believed that her workplace was toxic. I also noted Ms. White’s claim that the LI and the
CSOI investigation constitute examples of Employer harassment and discriminatory
treatment against her and the Union’s claim that the two investigations were unfair
because they were only undertaken by the Employer to find something on Ms. White
after it failed to establish that she had maintained an undeclared association with
inmates/ex-inmates over the years. In my view, the evidence does not support the
conclusion that the Employer engaged in harassment or discriminatory treatment
against Ms. White or that its decisions to conduct the LI and the CSOI investigation
were unfair or made in bad faith.
[60] I can appreciate that Ms. White would feel a sense of frustration at the
number of times the Employer had made enquiries about her conduct. However, the
Employer made the inquiries only because of troubling information that came to its
attention, whether it came from co-workers, inmates or from policing organizations. The
type of information it received about Ms. White from these varied sources would require
a responsible corrections employer to investigate. When an investigation disclosed that
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there was no basis to proceed further, the investigation came to an end. Even with the
CSOI investigation, Inspector McVeigh ceased pursuing the question of whether Ms.
White had undisclosed associations with inmates/ex-inmates when the evidence
pointed him in that direction. He did not raise this issue with her at her interview on
September 24, 2015.
[61] The Employer’s decision to conduct the LI was based only on the events
that occurred on September 19, 2013. The Employer was convinced that Ms. White left
work very early on that day without permission and it wanted to determine if this was a
single occurrence or a bigger problem. The Employer made the decision to conduct the
CSOI investigation after receiving some additional information about an inmate
association and with the knowledge that Ms. White was advertising her services as a
real estate agent and was off work on a lengthy period of sick leave. The decision to
pursue the CSOI investigation was made after it had received the LIR from OM
Boorsma which effectively found that Ms. White had left work on a number of occasions
without permission and that she had engaged in time theft. The Employer decisions to
pursue the LI and the CSOI investigation were based only on a reasonable belief that
Ms. White may have engaged in serious misconduct. Even though Ms. White perceived
the situation differently, the Employer’s actions in relation to her did not constitute
harassment or discriminatory treatment and the LI and the CSOI investigation in
particular represented an untainted exercise of management’s right to investigate
potential wrongdoing.
[62] In examining the Employer’s allegations of misconduct against Ms. White, I
have found, as set out above, that the Employer has established just cause to discipline
Ms. White for certain matters. The next question for determination is whether the
Employer had just cause to terminate Ms. White’s employment. After considering this
issue, I am satisfied that the Employer did have just cause to terminate Ms. White’s
employment. I am also satisfied that there is no justifiable basis for mitigating the
discharge. My reasons for these conclusions will focus on Ms. White’s acts of time
theft, her failure to disclose a criminal charge and her decision not to cooperate with a
MCSA Section 22 investigation.
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[63] I find it unnecessary to review the cases that I was referred to which
deal with the subject of time theft. The cases support the principle that time theft
constitutes dishonest behaviour and is particularly serious when the offending employee
is responsible for recording his or her own time worked. Time theft has been
characterized as fraud that strikes at the very heart of the employment relationship.
Gaining a relatively small amount from acts of time theft have justified discharge, even
where the employee admitted the theft and had significant seniority.
[64] Ms. White engaged in willful time theft on April 21, 2009, when she
participated in a proceeding in Family Court and on April 29, 2010, when she attended
Criminal Court to defend an assault charge. The times she recorded on the sign in/out
sheets on each of these days reflected that she was at work for the entire shift and she
was paid for working a complete shift, even though she was away from Maplehurst for
significant periods of time attending to personal matters. These events took place many
years ago, but the Employer only found out about them during the CSOI investigation.
Ms. White also engaged in time theft on certain days in August and September of 2013
that were the subject of the LIR. As noted previously, Ms. White’s writing in the start
time of her shift on the sign in/out sheets even when she was over an hour late on some
days are egregious examples of dishonestly receiving pay for time not worked. The fact
that Ms. White had a practice of signing in and out at the start of her work day is not an
explanation for falsely recording her hours of work. Indeed, Ms. White did not
acknowledge these acts of time theft, nor did she even attempt to explain why she
claimed pay for hours she did not work or cover with credits. Ms. White did not express
any remorse for her willful acts of time theft. These acts of time theft justify a significant
disciplinary response and, by themselves, could warrant the termination of her
employment.
[65] The failure to disclose a criminal charge in a corrections context is also
considered to be an act of dishonesty which can justify a significant disciplinary
response. In OPSEU (Lunario), supra, a fixed term employee with seven years of
seniority failed to disclose an impaired driving charge for about two years. On the eve
of pleading guilty, the CO informed management of the criminal charge as she
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requested a scheduling accommodation. She acknowledged her misconduct and was
very apologetic. In terminating the COs employment, the Employer relied solely on her
failure to disclose the criminal charge. Although acknowledging that the failure to
disclose a criminal charge was a serious breach of policy, the Union argued that
discharge was not just in the circumstances. The Board found that the CO “committed
an act of dishonesty by not disclosing her impaired driving charge in a timely manner,
which was compounded by every subsequent failure to inform the Employer of the
progress of her case through the criminal courts, contrary to the clear and reasonable
Employer policies and standing order on the matter.” After considering the relevant
factors, the Board substituted a 20-day suspension with compensation commencing on
the first day of the GSB hearing. There were two factors in particular that led the Board
to substitute a lesser penalty. The Arbitrator recognized that the criminal charge would
not have resulted in any discipline to the CO if it had been disclosed. As well, he found
it significant that the CO did ultimately come forward on her own, thereby demonstrating
her “fundamental integrity.”
[66] It is also quite likely that the disclosure of the criminal assault charge, which
arose out of a non-work related personal matter, would not have resulted in any
discipline for Ms. White. However, the similarity between the instant case and the
circumstances in OPSEU (Lunario), supra, end there. Ms. White did not come forward
voluntarily to disclose the criminal charge. On the eve of her criminal trial, she obtained
permission to attend Court on April 29, 2010, without disclosing the real purpose of her
absence. Ms. White did apologize for not complying with the Standing Order and
testified that she would immediately disclose a criminal charge if confronted with similar
circumstances in the future, if reinstated. An apology after the discovery of her failure to
disclose a criminal charge does not carry a lot of weight. If Ms. White had been
discharged only for her act of dishonesty in not disclosing the criminal charge, it is
unlikely that the result in OPSEU (Lunario), supra, would have been applied to her
situation. If she was fortunate enough to be reinstated, it is likely that a greater period
of suspension would have been imposed along with less compensation, if any. Of
course, the Employer discharged Ms. White for a number of reasons, not only because
she did not disclose a criminal charge. Given the seriousness of the offence, Ms.
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White’s failure to disclose the criminal charge is a significant factor in my decision to
uphold the termination of her employment.
[67] As noted previously, the MCSA requires a Ministry employee to cooperate
with an investigation. It provides that an employee who withholds or refuses to furnish
information required by an inspector may be dismissed for cause from employment. By
not attending the interview on May 18, 2016, and by not providing information about her
real estate listings and transactions, Ms. White committed the serious offence of not
complying with a statutory obligation to cooperate with the CSOI investigation. Because
of her failure to furnish information, the Ministry was unable to make a determination of
one of the issues which led to the investigation. Since the refusal to comply with an
inspector’s direction to furnish information can lead to such a result, it is obvious why
such a refusal amounts to a serious breach of trust that may result in dismissal. Given
the nature of this offence, it is unnecessary to determine whether Ms. White was guilty
of sick leave abuse, as argued by the Employer. After all, the Employer did not rely on
an abuse of sick leave as one of the reasons for the termination of Ms. White’s
employment. I do not find Ms. White’s statement that she would now provide the
information because she would not want to go through this experience again as helpful.
What would have been helpful is an acknowledgement that she should have provided
the relevant information to Inspector McVeigh in a timely manner, as she initially agreed
to do, and that she was sincerely sorry for not doing so.
[68] Similar to the other serious misconduct that I have addressed, I find it
unnecessary to decide whether Ms. White’s failure to cooperate with a MCSA Section
22 investigation by itself would justify the termination of her employment. In considering
all of Ms. White’s misconduct, I find that her failure to cooperate with a MCSA Section
22 investigation, the failure to disclose the criminal charge and her acts of time theft
during her employment provided the Employer with just cause to terminate Ms. White’s
employment.
[69] The Union’s position in this proceeding was simply that Ms. White did not
engage in the type of misconduct which gave the Employer just cause to terminate her
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employment. I have decided otherwise. Regarding mitigation, Ms. White’s discipline
free record and her seniority are not compelling factors in light of the kind of serious
misconduct she engaged in. Her dishonest behaviour involves a breach of trust that
makes the employment relationship irreparable. I appreciate that Ms. White has a
strong desire to return employment with the Ministry. However, there are no grounds in
this case for concluding that her discharge was excessive or that some other penalty
would have been appropriate in the circumstances.
[70] For the foregoing reasons, the grievance dated March 10, 2017, challenging
the termination of Ms. White’s employment, is hereby dismissed.
Dated at Toronto, Ontario this 26th day of August, 2020.
“Ken Petryshen”
______________________
Ken Petryshen, Arbitrator