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HomeMy WebLinkAbout2019-0352.McConnell.22-06-07 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-0352 UNION# 2019-5112-0054 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McConnell) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Esther Song Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel HEARING October 22, 2020, February 19, March 12, May 20, November 5, 2021, February 15, March 21, April 28, 2022 -2- DECISION [1] This is a discharge grievance. [2] The Grievor’s employment was terminated by letter dated April 24, 2019. The grounds for termination were as follows: 1. You failed to notify the Superintendent that you had been criminally charged on January 23, 2018 with Fail to Comply Recognizance; and 2. You failed to provide (or failed to provide in a timely manner) the Superintendent in writing with requisite information about your criminal charges including but not limited to: details about the nature of the charge and/or offence, bail conditions, and the schedule of any future legal proceedings in the matter. [3] The parties agreed to some facts and filed Declarations which served as the evidence in chief with respect to others. Notwithstanding the extensive cross examination which followed, the material facts are not in dispute unless otherwise stated. [4] The events giving rise to the discharge were as follows. [5] The Grievor was employed as a Correctional Officer at the Toronto South Detention Centre (“TSDC”). He commenced employment on December 7, 2015 as a fixed term contract employee. Subsequently, his fixed term contract was renewed several times. There was no break in his employment until the date of his termination. As of the date of his termination, however, he was still considered a fixed term employee and as such had no seniority under the collective agreement. [6] On January 21, 2018 the Grievor was arrested by Toronto Police Services (“TPS”) on domestic assault charges. He was held overnight for a bail hearing on January 22, 2018. He was released on January 22, 2018 with conditions. On January 23, 2018, the Grievor was re-arrested for breach of those conditions. On January 24, 2018 the Grievor was released on his own recognizance. He subsequently had several court appearances before the charges were withdrawn on December 3, 2018. [7] The Grievor relocated to Sault Ste. Marie immediately following his charges. Between that time and the termination of his employment on April 24, 2019 he did not work at TSDC. -3- [8] There is no dispute the Grievor never, prior to its withdrawal, advised the Superintendent of TSDC (or anyone else in a supervisory position with the Employer) that he had been criminally charged on January 23, 2018 with failure to comply with the recognizance under which he had earlier been released. The first ground relied upon by the Employer is thus made out. The Grievor explained his failure to do so was a product of the stress he was under at the time and apologized for this error. I will consider the credibility of his explanation and the sincerity of his apology below. [9] The position advanced on behalf of the Grievor with respect to the second ground is more challenging. The Grievor appeared to insist that he did not know that he had to provide some of the information, or that he had provided the requisite information, but that if he did not it was because of an error, or he was stressed, or requests for further information were not made or were insufficiently clear or that he relied upon the advice of legal counsel. In short, the Grievor attempted to ride an assortment of horses at once, all galloping off in different directions. [10] At the outset, it is useful to note that the Ministry’s policies, in particular the Ontario Correctional Services Code of Conduct and Professionalism (“COCAP”), clearly oblige correctional employees to report criminal charges to the superintendent of the relevant institution and provide certain other information. For obvious reasons, this obligation exists without the necessity of any request on the part of the Employer. Further, COCAP makes it clear that breach of these obligations may result in discipline up to and including dismissal. The Ministry requires this information in order to determine what action is appropriate. COCAP states in relevant part: Employees Charged With or Convicted of Criminal Offences 1.0 Purpose This policy establishes guidelines when employees are charged with or convicted of a criminal offence. 2.0 Staff Affected This policy applies to all institutional employees of Ontario Correctional Services. …. 5.0 Responsibilities 5.1 The superintendent ensures compliance with this policy. 5.2 The regional director consults with the applicable advisors (e.g. Human Resources (HR), Centre for Employee Relations or Legal Services) to ensure that any decision made is consistent with Correctional Services policy and practice. 5.3 The employee, when charged with or convicted of a criminal offence, must notify the respective superintendent in writing. -4- 6.0 Procedures 6.1 The employee, when charged with or convicted of a criminal offence, must notify the superintendent in writing within 24 to 48 hours and minimally provide the following initial information: 6.1.1 the nature of the charge and/or offence: if bail conditions are imposed, the employee will provide these conditions to the employer. 6.1.2. whether the offence occurred in the course of employment with Correctional Services; and 6.1.3 the schedule of any future legal proceedings in the matter. 6.2 Failure to notify is a breach of ministry policy and may result in discipline up to and including dismissal. 6.3. As soon as possible after receiving notice that an employee has been charged with or convicted of a criminal offence, the superintendent will complete an Employee/Other Information Report which will be forwarded simultaneously to the Information Management Unit (IMU) and the respective regional director. 6.4. Based on a preliminary evaluation of the information provided by an employee regarding being charged with or convicted of a criminal offence, the superintendent, in consultation with the regional director, HR and the applicable advisors, may decide to suspend the employee with or without pay pending an investigation, in accordance with the provisions of the Public Service of Ontario Act, 2006 (PSOA). 6.5 The superintendent will advise the employee in writing of the terms and reasons for a suspension pending investigation, and similarly inform the employee of any change in or renewal of the terms. 6.6 In consultation with the regional director, HR and applicable advisors, the superintendent will then conduct a full review of all available information concerning the employee's charge(s) and employment record, including any information provided by the Correctional Services Oversight and Investigations, in order to decide on the most appropriate course of action to be taken with the employee. While decisions for each case must be considered/determined on its own merits, the following courses of action are available to superintendents: 6.6.1 no action; 6.6.2 job reassignment within the parameters of the collective agreement and/or the PSOA; or 6.6.3 disciplinary action, up to and including dismissal. …. 6.10 Although the ministry's investigation is independent from the police investigation, court actions or results may become valuable information for consideration by the employee's manager. -5- 6.11 The Employee/Other Information Report will be updated to capture court proceeding dates and outcome and sent to IMU and the appropriate regional office. [Emphasis supplied.] [11] There was a disturbing assertion in the evidence of the Grievor that COCAP did not apply to him while employed as a correctional officer. According to the Grievor, it applied to him only while he was a recruit at the Ontario Correctional Services College, but not once he graduated. I have no hesitation in rejecting this evidence. COCAP on its face states it applies to “all institutional employees of Ontario Correctional Services.” The evidence of the Employer’s witnesses confirmed this to be the case. It would be surprising if it were otherwise. [12] The Grievor also seemed to suggest that he didn’t know the requirements of COCAP. New hires to TSDC are provided with a week to review all applicable policies before they are allowed to work on the floor of the institution. The Grievor’s training records establish that he was afforded this week. However, in his Declaration, the Grievor stated: 177. At no point was I supervised when reviewing the materials. Trainers did not oversee or monitor our review of the materials. I was not tested on the materials. I did not memorize the materials. 178. It was a huge volume of documents. 179. The Employer’s expectation that I understood was that we would review it briefly but the main focus of our training was shadowing others on the job. 180. I do not recall that we were given 5 full days to review the TSDC’s Standing Orders during my institution training. [13] I have no hesitation in preferring the Employer’s evidence that the full five days of training were provided and that trainers were available to answer any questions during the training. In any event, the Grievor’s suggestion that he needs to be supervised, overseen or monitored while reviewing policies is deeply troubling given that the Employer must be able to trust correctional officers to perform their duties without such oversight. [14] The Union spent some time eliciting evidence and arguing that while COCAP referred to specified information as that which must be “minimally provided”, some of the Employer’s witnesses referred to that information as what must be “at least” provided. This was a distinction without a difference that the Union or its witnesses could articulate. -6- [15] The Union also spent some time attempting to establish that the information requested from the Grievor exceeded that described in COCAP. I would note again that COCAP refers to information which must be “minimally provided”. In any event, apart from his reporting obligations under COCAP, the Grievor was required to respond to reasonable directives from members of management to provide information. While the Union did not really challenge the relevance of the information sought from the Grievor by the Employer, it is nonetheless useful to set out the portion of Deputy Superintendent (“DS”) Robertson’s Declaration explaining the purpose for which that information was sought: 38. The purpose of obtaining and relaying this information in this manner is to ensure the safety and integrity of the institution, the staff, and the inmates. Specifically, to the extent the criminal charges and/or the bail conditions affect the Grievor’s ability to remain in the workplace, to take on certain assignments, or to attend appropriate training sessions, this information is required to ensure the safety and integrity of all who come in contact with the institution. 39. In the instant matter, if TSDC had known who the victim was, TSDC would have been able to consider whether there was any intersection between the victim, the Grievor, and TSDC such that the Grievor could not be returned to work at TSDC. Further, and in any event, because the criminal charges involved an assault, he would most likely have been assigned to a post that did not involve direct inmate contact. 40. In addition, the institution determines whether an individual should be assigned to attend all scheduled court dates to ensure the institution’s information and any restrictions remain valid and appropriate. 41. In the instant matter, if TSDC had known about the court dates (including date, time, and location) and given the nature of the offences (domestic assault), it is more probable than not that TSDC would have assigned an individual to attend the scheduled court dates. Because the Grievor failed to advise TSDC of the date, time, and location of any court dates, TSDC was unable to address its institutional obligations. 42. Without the required information as set out above, TSDC was unable to return the Grievor to any role at TSDC or to any role at any other Provincial correctional institution. [16] It is useful to review in chronological order the information provided by the Grievor to the Employer and the requests which were made for information. One document relevant to this is an “Employee/Other Information Report” created in relation to the Grievor. [17] When supervisory employees at TSDC are advised that a staff member has been arrested, they record information received or obtained on an “Employee/Other Information Report”. I will refer to the Employee/Other Information Report created in relation to the Grievor as the “EOIR”. The Union did not take issue with the -7- Employer’s assertion that this EOIR constitutes a business record. In any event, I find this EOIR is reliable, admissible evidence. I note, however, that some of the information recorded in the EOIR is itself second hand, or hearsay. This is a factor I will consider, as necessary, in determining the weight to be given to any particular entry. [18] The “Initial Report” on the EOIR is dated January 22, 2018 and was made by Acting Sergeant Melody Jones. A/Sgt. Jones recorded that she was informed by a TPS Court Services Officer that the Grievor had been arrested by TPS 55 Division on “domestic related charges”. A/Sgt. Jones recorded that she called TPS 55 Division and spoke with a detective who confirmed the Grievor had been arrested on January 21, 2018 on domestic related charges and indicated he was held overnight for a bail hearing on January 22, 2018. [19] In accordance with the procedure set out in COCAP, the Regional Director was advised that a correctional officer, specifically the Grievor, had been arrested on domestic related charges. The Regional Director’s office initiated an investigation by Correctional Services Oversight and Investigations (“CSOI”), referencing the Grievor’s failure to report the above information and the fact that he had not provided an occurrence report in relation to the incident. [20] The Grievor testified that when he was arrested his mobile phone was broken and he did not have an opportunity to call his Employer while in detention. On January 22, 2018, immediately after being released following his bail hearing, he called the General Duty Manager’s office (“GDM’s office”) at TSDC and, he claimed, spoke with Staff Sergeant Black. According to the Grievor’s Declaration, he told S/Sgt. Black that: 20. … I was charged with three charges of assault and was detained overnight at Toronto Police Services. I also told him that I was out on my own recognizance and I would be getting things sorted out. 21. In response, S/Sgt. Black told me that he already knew this as the TPS had contacted the institution already. He told me that the Employer would contact me if they required any more information. [21] There is no entry on the EOIR in relation to this January 22, 2018 conversation, or any entry made on January 22 or 23, 2018, other than the one by A/Sgt. Jones described above. The EOIR contains four “Update Reports” on January 24, 2018, all entered by Staff Sergeant Copeland, with respect to attempts to locate and contact the Grievor after he failed to report for his shift on January 23, 2018. In the course of these efforts, S/Sgt. Copeland was advised that the Grievor was re- -8- arrested on the night of January 23, 2018 for failure to comply with conditions of his bail and had been sent back to court on these new charges. S/Sgt. Copeland contacted the court officer and requested that if the Grievor was remanded into custody, he not be brought to the TSDC as he was an employee of the institution. [22] S/Sgt. Black’s first and only entries on this EOIR are its last two entries, both of which are dated January 25, 2018. S/Sgt. Black’s first entry reads: Officer McConnell contacted the shift office to advise that he was out on his own recognizance with a $3000 surety. It is an agreed fact that S/Sgt. Black and the Grievor spoke directly at this time. [23] S/Sgt. Black’s second entry reads: CO McConnell contacted Deputy [Superintendent] Baumen [sic]. He stated that he has been released on a PTA [Promise to Appear] and that his next court date is Feb. 23rd but that he does not need to attend and his lawyer can attend on his behalf. His current conditions are to have no contact with his spouse and not to attend his previous residence where she lives. He does not currently have the funds to remain in Toronto and is taking a Leave of Absence (effective ASAP) and moving home to Sault Ste. Marie to live with his mother. He said that [redacted] he doesn’t plan to return to Toronto. CO McConnell has been asked to keep Deputy [Superintendent] Charles apprised of any new information as soon as possible. In his Declaration the Grievor denied that DS Bauman told him to keep DS Charles apprised of any new information. [24] The Employer also tendered as an exhibit an email thread dated March 6, 2019 between the assigned CSOI Inspector and S/Sgt. Black. In the email thread, the Inspector advises that the Grievor had stated he had spoken to S/Sgt. Black on January 22 or 23, 2018 and asks if S/Sgt. Black can confirm. S/Sgt. Black responded: “I actually spoke to Mr. McConnell on January 25th. The institution was originally contacted on January 22nd.” I admitted the email thread over the objection of the Union. In doing so, I noted that the email was sent over a year after the event in question and that presumably S/Sgt. Black’s statement was based on nothing more than his review of the EOIR made at the time of the event. I also noted that, if the Union insisted, the Employer would either need to call S/Sgt. Black as a witness or explain its failure to do so. -9- [25] The Union took the position that S/Sgt. Black needed to be called as a witness. S/Sgt. Black was not called as a witness. The Union asks that I draw an adverse inference from the Employer’s failure to do so. The Employer argues no adverse inference should be drawn, noting that DS Harries-Jones (now known as DS Jones-Charles) had testified that S/Sgt. Black was absent from work due to a workplace related injury/illness, was participating in a course of treatment and that his participation in the hearing would be detrimental to his health. The Employer asserted the medical evidence it has with respect to S/Sgt. Black’s inability to attend the hearing comes from his WSIB file. Accordingly, the Employer is precluded by the Workplace Safety and Insurance Act (“WSIA”) from disclosing it. The Union argues the evidence with respect to S/Sgt. Black’s inability to attend is hearsay. It notes no medical evidence was tendered in support of this claim. The WSIB file was not the only possible source of such evidence. Nothing precluded the Employer from obtaining medical evidence directly from S/Sgt. Black or his doctor [26] The Employer provided a reasonable explanation for S/Sgt. Black’s inability to attend. Whether good labour relations and a more efficient arbitration hearing process would have been better served had the Union simply accepted that explanation without further proof is a matter I leave for another day. Instead, I will address the Union’s arguments. [27] I agree with the Union that the Employer could have obtained medical evidence with respect to S/Sgt. Black’s ability to attend from sources other than his WSIB file. I also agree that the evidence which was offered was hearsay. An arbitrator, however, has the ability to accept hearsay evidence. In this instance, I do so for the following reasons. First, as discussed further below, S/Sgt. Black’s evidence is not of any real significance to the determination of any issue in dispute in this case. Second, the Union does not dispute the explanation offered by the Employer. It does not, for example, suggest some competing explanation for S/Sgt. Black’s absence. Rather it simply requires the Employer to prove its explanation. For this purpose, given the limited role, if any, S/Sgt. Black’s evidence might have played, I accept and rely upon the hearsay evidence tendered by the Employer as establishing a valid explanation for failing to call S/Sgt. Black. [28] An adverse inference is not made at large. Rather it is made in relation to specific factual disputes. There are two events in which S/Sgt. Black is referenced in the parties’ submissions. The first is in relation to the conversation which the Grievor alleges he had with S/Sgt. Black on January 22, 2018. In the absence of S/Sgt. -10- Black, I place no weight on his statement recorded in the March 6, 2019 email that he did not speak to the Grievor on January 22, 2018 but rather first spoke to him on January 25, 2018. As stated above, it appears to me that statement, made over a year after the fact, was likely based on nothing more than S/Sgt. Black’s review of the EOIR. That is, it adds nothing to the EOIR. While I draw no adverse inference from the failure to call S/Sgt. Black, the absence of his evidence means the only evidence with respect to whether or not a conversation took place between the Grievor and S/Sgt. Black on January 22, 2018 is on the one hand the direct evidence of the Grievor that it did and on the other the absence of an entry in the EOIR indicating such a conversation took place. It is possible to infer from the absence of an entry in the EOIR that no conversation took place, however the basis for such an inference is slight. This leaves the Grievor’s evidence that the conversation did take place. On the Grievor’s evidence, S/Sgt. Black told him that the Employer would contact him if it required further information. However, there is no dispute that the Employer subsequently contacted him and requested further information. At issue is the Grievor’s responses to those requests. Thus, whether or not S/Sgt. Black told the Grievor on January 22, 2018 that the Employer would contact him if it required further information is of limited, if any, relevance to the issues before me. [29] The second factual dispute relates to the first “Update Report” made by S/Sgt. Black in the EOIR on January 25, 2018. In that Update Report, S/Sgt. Black records what DS Bauman allegedly told the Grievor on that date. S/Sgt. Black’s evidence with respect to what DS Bauman told him he told the Grievor would be hearsay. Transcribing hearsay evidence into a business record does not render it non-hearsay evidence. Further, DS Bauman gave direct evidence in essence confirming that he made the statement recorded by S/Sgt. Black in the EOIR. In the result, S/Sgt. Black’s evidence on that point is completely unnecessary and there is no adverse inference to be drawn. [30] DS Bauman’s evidence was when he spoke to the Grievor on January 25, 2018, the Grievor provided him with “minimum information” with respect to his criminal charges: that he had been released on a PTA, that his current bail conditions required no contact with his spouse and that his next court date was February, 23, 2018. The Grievor also advised DS Bauman that he was moving to Sault Ste. Marie. DS Bauman requested the Grievor provide an Occurrence Report detailing the following information: a. The reason for him being AWOL on January 23, 2018 and for any other shifts for which he was AWOL. b. All information about his Criminal charge. -11- c. All information about the court proceedings relating to his Criminal charge. d. All information about his Bail conditions. e. All information as to why he did not report his arrest to the employer within 24 to 48 hours of being arrested. DS Bauman also directed the Grievor to keep DS Sean Charles appraised of any new information with respect to his criminal charges. [31] The Grievor denies DS Bauman requested he provide such an Occurrence Report. I prefer the evidence of DS Bauman for the following reasons. First, I have been involved in hundreds of cases involving the Ministry and take “judicial notice” of the fact that directions to correctional officers to provide occurrence reports in relation to possible infractions of Ministry rules or policies are the norm if not the rule. The request is thus inherently plausible. Second, as of the time of the conversation, DS Bauman was in receipt of an email dated January 23, 2018 from DS Sean Charles to Staff Sergeants and other managerial employees at TSDC indicating that the Grievor must be directed to write an Occurrence Report providing this information on his next shift in the workplace. [32] The Grievor also denies that DS Bauman directed him to keep DS Charles apprised on any new information with respect to is criminal charges. Once again I prefer the evidence of DS Bauman. DS Charles was the Deputy Superintendent then with responsibility for the Grievor’s file. The contemporaneous note made in the EOIR by S/Sgt. Black is consistent with DS Bauman’s recollection. The Grievor conceded that in all other respects, that note was correct. In any event, as discussed further below, there were repeated further directions to the Grievor to provide updated information. [33] The Grievor testified he spoke with Al Riley, a Vice President of the Union Local at TSDC, on January 26, 2018 who advised him to contact a lawyer and to write to the Superintendent of TSDC, Michael Wasylyk, and explain that he was criminally charged and needed to speak with legal counsel. In cross-examination the Grievor testified he took the weekend to write the letter in part because he wanted to speak with legal counsel first. [34] The Grievor sent a letter to Supt. Wasylyk dated January 29, 2018 which stated: I am writing this letter to inform you that on January 22nd, 2018 I was charged with assault. I briefly spoke to Deputy Bauman about this confidential matter on January 25th. Due to this alleged assault I am unable to attend my residence. With no friends or family in the GTA area with whom I could stay with until the matter in question is resolved I had no other option but to return home to Sault Ste. Marie. -12- This alleged assault combined with having no support In the GTA area has caused an enormous amount of stress in my life and placed a large burden on me financially. I have been employed at the Toronto South Detention Center since December, 2015. [Redacted.] Any further communications please go through my support person Mr. Riley. The letter does not provide information about the bail conditions. It does not disclose the subsequent arrest and charge of breach of those bail conditions. It does not contain information about upcoming court dates. In cross examination, the Grievor confirmed that he had a copy of his bail papers at that time. [35] In his Declaration, the Grievor states he now realizes that he “made some mistakes”. In particular he did not inform his Employer about the subsequent charge of breach of his bail conditions. He states that this was unintentional; that he focused on the assault charges at the time and was not clear headed. This explanation would be more compelling but for the Grievor’s denial that COCAP applied to him; his denial that he had been requested to provide an Occurrence Report detailing specified information; his denial that he had been requested to keep the Employer updated with new information; and his subsequent failure, described below, to respond to repeated written requests to provide this information. [36] By letter dated January 31, 2018, DS Sarah Harries-Jones wrote to the Grievor with respect to his absence from the workplace. That letter commenced: You have provided information to the Employer that you have been criminally charged and you have indicated that you have returned home to Sault Ste. Marie. As you are aware, employees charged with criminal offences are required to provide information about the charge, bail conditions and schedule of any future legal proceedings. Please provide in writing further information about your charge, including but not limited to the date and details of the alleged incident and a list of all scheduled court dates. Please also provide a copy of your bail order/conditions. You are required to provide this information to the Employer by no later than 4pm on Monday, February 5, 2018. [Emphasis in original.] I note this letter specifically requests the Grievor provide a copy of his bail order/conditions. The letter went on to note the Grievor had requested two personal emergency leave days. It attached a Leave of Absence request form and an Occurrence Report form. -13- [37] On February 1, 2018 the Grievor submitted the Leave of Absence request form and an Occurrence Report. The Occurrence Report, however, contained none of the information requested by the Employer. Rather it related only to the Leave of Absence request, stating: Sir, On February 01, 2018 approximately 1000 hours in Sault Ste. Marie, Ontario. I am writing this report in regards to the two days of paid personal leave under Bill 148 of the Employment Standards Act. Respectfully submitted, CO2 McConnell The Grievor’s use of the Occurrence Report in this manner, rather than to provide the information requested with respect to “the charge, bail conditions and schedule of any future legal proceedings”, was disingenuous. The Grievor also failed, once again, to provide a copy of his bail/order conditions as directed [38] Around this time the Grievor also applied for medical leave. The details of that request were not before me. A medical note from his doctor filed as an exhibit was redacted. The Grievor’s Declaration, however, indicates he “was feeling very unwell due to stress and anxiety”. [39] The Grievor’s Declaration indicates that “when I finally got my head around DS Harries-Jones’ letter”, he emailed her back on February 4, 2018 as follows: The letter that was sent January 29, 2018 states the charge. While I continue to seek legal advice through opseu and counsel I have been advised to disclose that I did not require bail. My next schedule [sic] legal proceeding is February 23, 2018. Please include my union representative in any future correspondence. [40] The Grievor’s statement that the letter he sent on January 29, 2018 “states the charge” is disingenuous. In that letter to Supt. Wasylyk, he stated he had been charged with assault. In fact, he faced multiple counts of assault. More significantly, he also faced a subsequent charge of breaching the terms of his recognizance which he never disclosed to the Employer. [41] The Grievor’s statement that he had been “advised to disclose that I did not require bail” was, to use a term supplied by Employer counsel, at best economical with the truth. The Grievor was released on his own recognizance with a $3,000 surety. This is a form of bail. Assuming he was “advised to disclose that he did not require bail”, the Grievor knew that this was not true. -14- [42] The Grievor’s evidence was that he “thought that telling the Employer about my charge being assault was enough for them to understand what that meant.” He also stated in responding in this manner he was following the advice of his legal counsel to tell his Employer that he didn’t require bail and provide the date of his next legal proceeding. He stated he thought his email was “clear and sufficient”. [43] The Grievor’s evidence contained several references to relying on the advice of his criminal counsel. No issue is taken in this case that the Grievor was legally obliged to provide the information requested by the Employer, notwithstanding whatever advice he received from counsel. The issue in this case is whether the Grievor’s failure to do so was a good faith product of his reliance on that advice. If so, there is an argument that good faith, albeit mistaken, reliance should be taken into account in assessing the degree to which he was insubordinate and the likelihood that he would engage in similar behaviour in the future. I find it most useful to consider whether the Grievor’s claim that his actions were the result of good faith reliance on legal advice in the context of all of the evidence. I will thus return to this claim below. [44] By email dated February 12, 2018, to the Grievor, DS Harries-Jones referenced her previous letter of January 31, 2018 and indicated she was following up on the outstanding information requested by the Employer. She asked for the location, courtroom and time of the Grievor’s February 23, 2018 court date. She also asked for the nature and details of the alleged incident before the Court. The Grievor did not respond. [45] In his Declaration, the Grievor indicated that he did not think he was required to share with his Employer the details of the courtroom, location and time of his February 23, 2018 court date. For the reasons stated above, I disagree. The Grievor also stated he had relied upon the advice of his criminal counsel, a claim to which I will return below. In any event, even if the Grievor was relying upon the advice of criminal counsel, that does not excuse his failure to respond at all to DS Harries-Jones. [46] With respect to the Employer’s request for the nature and details of the incident, the Grievor’s evidence was that he thought the information which he had provided was sufficient. This is disingenuous. At best, on the Grievor’s evidence, he had disclosed to the Employer that he had been arrested on three charges of assault. He had not disclosed the identity of the person he had allegedly assaulted or any other details of the assault, as requested in DS Harries-Jones January 31, 2018 -15- letter. More importantly, he had not disclosed at all the fact of the subsequent arrest and charge for breach of the terms of his recognizance. [47] It is an agreed fact that the Grievor had court dates on April 6 and April 13, 2018. He did not advise the Employer of these dates. [48] A meeting was held on April 30, 2018 by teleconference to discuss certain issues with the Grievor. Participating in the call were the Grievor, Mr. Riley, Ron Johnson (a Staff Representative with the Union), DS Harries-Jones and DS Robertson. DS Robertson and DS Harries-Jones evidence was that during the call the Grievor was expressly advised that he was to provide a copy of his bail papers and information with respect to his next court dates. The Grievor denied that there was any discussion related to the criminal matters during that call. Mr. Riley gave no evidence on this point. Mr. Johnson was not called as a witness by the Union. No explanation was provided by the Union for its failure to do so. His evidence was relevant to this and other factual issues, as discussed further below. As requested by the Employer, I draw an adverse inference from the Union’s failure to call Mr. Johnson as a witness with respect to factual issues on which he could have given relevant evidence, including what was said during this call. I infer that his evidence would not have supported the Union’s claim that criminal matters were not discussed during this call. [49] I also note in this respect that immediately following the meeting, DS Harries- Jones sent an email to the Grievor, copying DS Robertson and Mr. Johnson, which stated: As indicated in our teleconference today here is the Staff Services Confidential fax number. [Redacted] Please forward the information requested in the letter of January 31, 2018. Thank you. It is an agreed fact that in this email DS Harries-Jones was referencing her letter of January 31, 2018 set out above. This email is strongly consistent with the evidence of DS Robertson and DS Harries-Jones that information with respect to the criminal matters was discussed during the April 30, 2018 call. [50] I conclude that during the meeting of April 30, 2018 the Grievor was expressly advised that he was to provide a copy of his bail papers and information with -16- respect to his next court dates. The Grievor’s denials that this was the case are disingenuous. In any event, the email sent immediately following the meeting to the Grievor by DS Harries-Jones directed him to provide this information. He did not do so. [51] The Grievor stated he relied upon the advice of his criminal counsel, a Mr. Gould, in responding to DS Harries-Jones April 30, 2018 email. By email sent on May 3, 2018, the Grievor forwarded to the Employer a copy of a letter dated May 3, 2018 from his criminal counsel. The text of that letter is as follows: I am Mr. McConnell's legal counsel. My client is currently facing allegations in the. Ontario Court of Justice in Toronto. The matter returns to court on the 4th of May 2018. At that time, we will be setting the matter down for trial, as my client vigorously denies the allegations. My client is presently bound by several conditions set out in a recognizance of bail. These conditions are minimal. He is not to have any contact with the named complainant, nor is he allowed to attend her address. Additionally, for the duration of his legal matter, my client is prohibited from possessing any weapon as defined by the Criminal Code of Canada ("the Code'') unless the weapon is for employment purposes. He is also prohibited from applying for any registration certificate, authorization or license for any weapon as defined by the Code. For privacy reasons, I am not-prepared to provide a copy of his release documentation at this time. This is to protect the identity of the complainant, whose address and legal name are contained in the documents. I trust this is satisfactory. Should you have any further questions I may be reached at the numbers above. Thank you for your kind consideration in this matter. [Emphasis in original.] [52] It is clear on its face that this letter did not provide the Employer with the information which it had requested and to which it was entitled. [53] On June 6, 2018 the Grievor received an email dated June 6, 2018 from Mr. Johnson which forwarded him an email of the same date from DS Robertson in which she said in relation to the Grievor’s case, “I still require the bail papers”. The Employer did not receive from the Grievor his bail papers as a result. The Grievor’s evidence was that he did not respond because he was relying on the advice of his criminal counsel. [54] On November 15, 2018, the Grievor received an email dated November 15, 2018 from Mr. Johnson which stated in relevant part: -17- I just met with [DS Robertson] today. I will give you more in depth details hopefully tomorrow. You have not sent the Employer details from your bail hearing which I believe was sometime in May. As a peace officer it is required. [55] The Grievor’s response to this email was to send Mr. Johnson copies of his January 29, 2018 email to Supt. Wasylyk and his criminal counsel’s letter of May 4, 2018. As he conceded in cross-examination, this did not constitute new information. [56] During the period after April 30 and December 5, 2018, the Grievor had court dates on September 7 and 21, and December 3, 2018. Notwithstanding the repeated requests by his Employer, he did not advise it in advance of the dates, times or locations of these court hearings. [57] On December 6, 2018, the Grievor sent an email to Mr. Johnson, with a copy to Mr. Riley and Supt. Wasylyk, stating that all charges had been withdrawn by the Crown. Attached to this email was a letter dated December 3, 2018 from his criminal counsel. The text of that letter is as follows: I am Mr. McConnell's legal counsel. My client was previously charged with three counts of assault and one count of failing to comply with his recognizance of bail. Today all of those charges were withdrawn at the request of the Crown. This was due to no reasonable prospect of conviction. While he was on a recognizance of bail, Mr. McConnell was subject to some restrictions against him possessing weapons. There were some exceptions to these restrictions, but I will not set them out in detail here. Since his charges have now been dealt with, Mr. McConnell is no longer under any court orders, this includes his former recognizance of bail. I trust this is satisfactory. Should you have any further questions, I may be reached at the numbers above. Thank you for your kind consideration of this matter. [58] This letter was the first time that Mr. McConnell, or someone acting on his behalf, had communicated to the Employer the number of counts of assault with which he had been charged or that he had been charged with failing to comply with recognizance of bail. As noted by counsel for the Employer, it still did not know the details of the assault or the name of the person assaulted. Both were relevant to the Employer’s ability to assess whether it would be appropriate to continue to employ the Grievor at TSDC. [59] DS Robertson was unaware of the Grievor’s December 6, 2018 email to Supt. Wasylyk. She sent the Grievor a letter dated December 18, 2018, by email, giving a “final direction” that by December 21, 2018 he provide her with sufficient -18- information about his charges, “including but not limited to the date and details of the alleged incident and assault, a copy of the bail order/conditions and a list of all scheduled court dates.” Her letter noted the Employer required the information in order to determine appropriate actions with respect to his employment status prior to his return to the workplace. It concluded: “The Employer also reserves the right to continue its investigation into this matter and take any disciplinary or other action as appropriate.” [60] The Grievor’s response was to forward DS Robertson’s email to Mr. Johnson, Mr. Riley and Supt. Wasylyk, and to Dan Sidsworth, a Grievance Officer with the Union. He did not communicate directly with DS Robertson. [61] In his Declaration, the Grievor described his reaction to DS Robertson’s letter of December 18, 2018, as follows: 96. When I read DS Robertson’s letter, I was really confused and my anxiety grew, along with my frustration. I notified S/Sgt.Black within 24 to 48 hours of being charged and told him about the nature of the charge. He said that he knew all of the details already and that I didn’t have to do anything else. 97. I was even more frustrated because I thought that Mr. Gould answered all of their questions and I ensured that there was an open line of communication between Mr. Gould and the Employer should the Employer have any more questions. I thought that if the Employer had any more questions about this matter, they could talk to Mr. Gould. What’s more, I relied on my lawyer’s advice to tell the Employer the appropriate information, from his advice. 98. My head started to spin and my heart started to race. The Employer was springing this on me after months of not asking me any follow up questions or giving me any indication that the information that Mr. Gould and I had provided was insufficient. 99. It was even more upsetting to me that the Employer was writing that the information that I had thus provided was insufficient because I was sure that I did provide all of the information that they asked for. I told him about the nature of the charge. I was charged with assault. I told them about my bail conditions through Mr. Gould’s letter. Mr. Gould and I told them about the dates of the legal proceedings. I thought that I did all that I was required to do. 100. I did not know why the Employer kept harassing me for the same information over and over again, when I thought that I had provided it all to them. They never told me what was wrong with the information that I had already provided. [62] This answer is disingenuous in several respects. First, according to the Grievor’s earlier statement, S/Sgt. Black did not tell him that he “didn’t have to do anything else”. Rather, according to the Grievor, S/Sgt. Black told him “that the Employer would contact me if they required any more information.” The Employer, in the -19- person of first DS Harries-Jones and then the person of DS Robertson (both of whom, to state the obvious, outrank S/Sgt. Black) had done so. Second, the Employer, in the person of DS Robertson, was not “springing this” on him “after months of not asking … any follow up questions or giving … any indication that the information provided was insufficient”. Mr. Johnson’s emails of June 6 and November 15, 2018 to the Grievor indicated that DS Robertson continued to be of the view that the Grievor had not provided sufficient information. Third, the Grievor did not tell the Employer about the “nature” of all of the charges he faced. He never disclosed, prior to its withdrawal, that he faced a charge for breach of recognizance. Fourth, his minimum obligation under COCAP was not limited to advising the Employer of the “nature” of the charges he faced. Rather, COCAP provides: 6.1 The employee, when charged with or convicted of a criminal offence, must notify the superintendent in writing within 24 to 48 hours and minimally provide the following initial information: 6.1.1 the nature of the charge and/or offence: if bail conditions are imposed, the employee will provide these conditions to the employer. 6.1.2. whether the offence occurred in the course of employment with Correctional Services; and 6.1.3 the schedule of any future legal proceedings in the matter. The Grievor failed to comply fully with the underlined obligations. Fifth, the Employer’s repeated requests for additional information were not for the “nature of the charge”. Rather they were detailed and specific requests for information which he never provided. [63] DS Robertson was forwarded a copy of the Grievor’s email to Supt. Wasylyk. By letter dated January 30, 2019 to the Grievor, she referenced his email to Supt. Wasylyk and directed the Grievor to provide her with “supporting documentation confirming the withdrawal of your criminal charges” as well as any and all previously requested information concerning his charges.” She noted the Employer reserved the right to continue its investigation and to take appropriate disciplinary action. [64] The Grievor responded by email dated January 30, 2019. He stated: As requested attached is the letter you have requested. Mr. Wasylyk was notified by email January 30, 2018 [sic]. I also forwarded a letter for my legal council [sic] May 3rd 2018. -20- Attached to this email was a copy of the December 3, 2018 letter from the Grievor’s criminal counsel which he had previously provided to Supt. Wasylyk. [65] As observed by DS Robertson in her Declaration, the Grievor had failed to: a. fully disclose the nature of the charges and/or offences; b. provide a copy of the bail conditions to TSDC; c. provide a schedule of any future legal proceedings; or d. provide a copy of legal documentation substantiating the criminal charges had been withdrawn. [66] In his Declaration, the Grievor stated he thought that the letter from his criminal counsel was “sufficient to keep the Employer updated”. He also stated: I honestly thought that I had clicked [sic] off everything on DS Robertson’s letter and that I had fulfilled my obligations. [67] In the face of the repeated, specific requests for information from the Employer, and in particular DS Robertson, the Grievor’s assertion simply beggars belief. In cross-examination, the Grievor conceded that these statements in his Declaration were not true. The Employer argues that the Grievor’s response to this and other communications from DS Robertson was dismissive and cavalier. I agree that is a fair characterization. [68] On March 14, 2019, DS Robertson received a copy of the CSOI investigation report. That report sets out evidence reviewed by the Inspector, including interviews of various witnesses and information obtained by the Inspector from the Canadian Police Information Centre (CPIC), the Integrated Court Offences Network (ICON) and the Offender Tracking Information System (OTIS). The Investigator’s findings were: 1. The Grievor failed to inform the Superintendent of his being criminally charged on January 23, 2018. 2. The Grievor failed to provide the Superintendent with his future court proceedings. 3. The criminal charges were withdrawn on December 3, 2018. [69] By email dated March 25, 2019, DS Robertson gave notice to the Grievor of the allegations for which he was ultimately discharged and advised that a meeting was scheduled on April 2, 2019 to enable him to respond to those allegations. The meeting was initially scheduled to take place face-to-face at TSDC. DS Robertson’s evidence that it was changed at the request of the Union to take place -21- by means of teleconference because the Grievor had no means of getting to Toronto from Sault Ste. Marie was unchallenged. [70] During the April 2, 2019 allegation meeting, the Grievor maintained that he had called S/Sgt. Black on January 22, 2018. He also referenced the letter he sent to Supt. Wasylyk on January 29, 2018. He agreed that he did not set out his bail conditions, stating it must have been an error. He noted that he had sent a letter from his criminal lawyer and that his lawyer had invited the Employer to contact him if they required anything further. He also stated he thought the information he had provided was sufficient. DS Robertson advised the Grievor that she did not deal with lawyers. She also stated that the information he had provided was not sufficient, and that he had been notified of that. The Grievor was asked if he had anything to add in relation to the allegations. He did not provide any further information. [71] In her Declaration, DS Robertson stated: 87. Generally, I found the Grievor to be arrogant, entitled, and demanding. He interrupted me several times during the call. He was not remorseful and stated it was “above my pay grade” and that he was “just going by what my lawyer says”. He appeared to believe that the situation was fully resolved when the charges were withdrawn. 88. The Grievor’s lack of remorse, his insufficient explanation for his failure to comply with the Employer’s instructions, his failure to acknowledge his duties and responsibilities according to the Criminal Offences Policy, and his demonstrable unwillingness to comply with express instructions from TSDC was both troubling and concerning. In cross-examination, DS Robertson agreed that because the allegation meeting took the form of a conference-call, she was unable to observe the Grievor’s body language. [72] In his Declaration, the Grievor stated he was “shocked” by DS Robertson’s statement during the meeting that she did not deal with lawyers, stating if he had known that he would not have kept sending letters from his lawyer. He also stated it seemed “absurd to me that they wouldn’t tell me that before.” He stated he “started to feel like the cards were stacked against me.” He confirmed that he told DS Robertson during the meeting that he thought the information he had provided was sufficient and that she responded that he had been notified that it was not. He stated: -22- I became even more confused and tried to think back to the past. I never thought that they thought that my letters and emails were insufficient. I thought that the Employer was just asking for the same information, which they already had. It may be that the Grievor thought that during the allegation meeting. However, as already noted, he conceded in cross-examination that DS Robertson and others had sent repeated communications to him making it clear that the information he had provided was not, in the Employer’s view, sufficient. [73] In any event, the Grievor’s stance during the allegation meeting, if not openly defiant, at best demonstrated he was incapable of accepting that he had done anything wrong. He did not acknowledge any wrongdoing (other than his failure to provide his bail conditions, which he characterized as “an error”). He did not apologize or express any remorse. [74] DS Robertson’s evidence was that in consultation with the Region, the Superintendent and the Employee Relations Advisor she reached the conclusion that discharge was the only possible outcome. She outlined the factors which were considered. She concluded: 98. I confirm and attest that the fact the Grievor’s charges were withdrawn is not relevant to the question to discharge. In my view termination was the only outcome that was warranted in light of the Grievor’s conduct and behaviour. a. The Grievor’s blatant disregard for policy, his repeated failure to comply with detailed, express instructions of both the Employer and his Union representative for more than a year without a sufficient explanation was manifestly inconsistent with a continued employment relationship. b. When coupled with his lack of remorse, his failure to accept any responsibility for his actions, and his failure to demonstrate any understanding of the serious [sic] of his misconduct, along with his cavalier, dismissive attitude throughout led to the unavoidable conclusion that the Grievor could no longer be trusted and the employment relationship was irrevocably broken. [75] The Union argues the Grievor was “traumatized” by being arrested for the first time in his life. I have no doubt it was deeply distressing. I am not persuaded it rendered the Grievor incapable of providing the information requested by the Employer over the next ten or more months. I note no medical evidence was tendered. The Grievor provided some information, evidencing his capacity to provide other information as requested. He simply did not provide it, despite repeated directions to do so. -23- [76] The Union argues the Grievor repeatedly took the “initiative” in contacting the Employer thereby demonstrating his character. This argument is not supported by the evidence. The Grievor was required to contact the Employer of his own accord and advise that he had been charged with criminal offences. Further, he was required to respond to directions to provide further information and provide the information requested. In light of his overall failure to comply with these obligations, he deserves no credit for the few occasions he did contact the Employer to provide, at best, incomplete information. [77] The Union argues the Grievor complied with his obligations under COCAP. For the reasons stated above, he clearly did not. In any event, he did not comply with reasonable directions from management to provide further information. [78] The Union argues that the Employer had already decided to terminate the Grievor in advance of the allegation meeting. The evidence cited in support of this argument is twofold. The first is an email dated November 20, 2018 from the Deputy Regional Director to Supt. Wasylyk, DS Cicak and DS Robertson of TSDC which reads in its entirety: “Has CO Clinton McConnell been terminated, or charged with abandonment of post?” This simple inquiry does not support an inference of pre-judgement. The second is the Grievor’s evidence that during the April 2, 2019 allegation meeting, he felt the “cards were stacked against him”. The Grievor’s feelings do not constitute persuasive evidence. The Employer may be required to attend an allegation meeting with an open mind (an issue I do not decide), but it is not in any event required to attend with a blank mind. Indeed, there would be little value if it did. [79] The Union faults the Employer for conducting the allegation meeting by means of teleconference rather than videoconference. I am not persuaded. Notwithstanding the ubiquity of videoconference meetings now, such was not the case in 2019. DS Robertson’s evidence was the meeting was held by teleconference rather than face- to face to accommodate the Grievor’s inability to travel from Sault Ste. Marie to Toronto, and that this was done at the request of the Union. This evidence was not directly challenged. There is no evidence that the Union suggested, let alone requested, the meeting be held by videoconference instead. [80] The Union argues the allegations set out in the notice of the meeting were confusing. I am not persuaded that they are. If the Grievor found them confusing he, or the Union, could have clarified the allegations either prior to or at the start of the meeting. -24- [81] As noted, the Grievor denied in his evidence that he was afforded sufficient opportunity to review COCAP during his training when he started at TSDC. The Union, wisely, did not pursue this suggestion in argument. However, the Union argues that the training took place several years before and the Grievor lacked sufficient opportunity to review the policies and refresh himself thereafter. This argument might be more compelling if the Grievor had not repeatedly failed to comply with specific directions from the Employer, and indeed his own Union Staff Representative, to provide more information. If the Grievor was uncertain as to his obligations under COCAP, he was at best reckless in failing to comply with those directions. [82] I return now to the Grievor’s claim that in providing only the information which he did to the Employer, he relied upon the advice of legal counsel. I begin by noting that this was not the only explanation offered by the Grievor for his actions, or lack of them. As reviewed above, he also claimed: COCAP did not apply to him at all as a correctional officer; he had not been afforded sufficient time to review COCAP; he did not remember his obligations under COCAP; the information he provided complied with his obligations under COCAP; and, generally, that he had provided sufficient information to fully comply with the specific requests for information made of him. None of these claims is true. In terms of my overall assessment of the Grievor’s reliability as a witness, I also note the Grievor was disingenuous in his evidence before me in: (i). Claiming that COCAP did not apply to him and claiming that in any event he had complied with its requirements. (ii). Denying that on January 25, 2018 DS Bauman directed him to provide specific detailed information in relation to his charges and directed him to keep DS Charles apprised. (iii). His implausible assertions that he thought he had complied with the various directions that he provide information. (iv). Denying that during the April 30, 2018 meeting he was once again specifically directed to provide a copy of his bail papers and information with respect to upcoming court dates. (v). His evidence with respect to his reaction to DS Robertson’s December 18, 2018. (vi). Various other statements in his Declaration (i.e. his evidence-in-chief) which were untrue, and indeed some of which he conceded in cross-examination were untrue. -25- [83] In light of the foregoing, I find the Grievor an entirely unreliable witness. In short, I do not believe his claim that the reason for his failure to comply with his obligations under COCAP or the Employer’s requests for information was because he was relying on the advice of counsel. [84] In the result, I have no hesitation in finding the Employer has established both of the allegations it relied upon in reaching its decision to terminate the Grievor’s employment. None of the many explanations offered by the Grievor for his conduct is made out. Correctional officers have responsibility for the care and custody of inmates and the safety of their co-workers and the institution itself. The Employer must be able to trust the individuals who perform these duties will fulfill their obligations and respond to appropriate directions. The Grievor failed to do so repeatedly. Given the seriousness of the Grievor’s misconduct, I find the Employer has established cause for discharge. [85] I turn to consider whether there are any mitigating factors which would cause me to substitute a lesser penalty. [86] At the time of his discharge, the Grievor was a short service, FXT employee who as such did not have any seniority in the bargaining unit. [87] The Union argues that the Grievor’s arrest for assault and subsequently for failure to comply with the terms of his bail conditions were not related to any co-worker and thus would not interfere with his ability to work. I am not persuaded. If the Grievor had provided the required information to his Employer, including the specific identity of the person he had assaulted, it may have reached the conclusion that the charges would not interfere with his ability to work. He did not. It is not the charges, but the Grievor’s failure to fulfill his obligations to provide information about those charges which interfere with his ability to work. In short, he cannot be trusted. [88] The Union argues the likelihood of his being arrested again is low. That may be true. However, if reinstated to the position of a correctional officer, the likelihood of his being in a position in which the Employer must be able to trust that he will fulfill his obligations and comply with directions is extremely high. He cannot be trusted to do so. [89] The Union argues the Grievor was not deceitful, did not purposely misrepresent anything and was honest about his mistakes. The evidence is to the contrary. -26- [90] The Union cites a number of cases. I do not find it necessary to review them in any detail. Each turns on its facts. Unlike the facts attributed to these cases by the Union: the Grievor did not take responsibility; his conduct, i.e. untrustworthiness, does directly affect his ability to perform the job of a correctional officer in the future; his misrepresentations were deliberate, not innocent; I am not satisfied the Grievor would handle a similar situation differently in the future; this was not a mere error of judgement; there was no remorse or recognition of wrongdoing; the acknowledgements of error by the Grievor, such as they are, are insincere and not convincing; his actions were intentional, not the result of confusion, and far from being completely responsive to requests for information he was just the opposite; there is no evidence that the Grievor has “truly learned and understands the need for better decision making”; and the Grievor’s “reticence” was not because he was acting pursuant to a lawyer’s instructions. [91] The Union relies upon Versacold Group v. Teamsters, Local 419, 1999 CarswellOnt 5371, [1999] OLAA No. 992, 59 CLAS 67, 85 LAC *4th) 366 (Davie), for the statement at para. 59 that: “Not each and every act of dishonesty automatically constitutes just cause for discharge.” I agree. I note, however, that Arbitrator Davie continued: “All of the circumstances must be assessed.” In the case before her, the Grievor was fired for lying on an application for promotion by stating that he had no prior criminal record, when in fact he had a prior conviction for theft. The evidence established that theft was an issue of significant concern to the employer’s operations. Arbitrator Davie concluded the Grievor’s actions were purposeful and constituted serious misconduct warranting discipline. She continued: 62 Balanced against that however is two years seniority, without discipline, and an immediate admission of wrongdoing by the grievor when confronted by the employer. The grievor recognizes his misconduct, and notwithstanding his "rationalization" during cross examination as to why he answered "no" when he should have answered "yes", he accepts that his employer was entitled to know the truth, and that he should have provided it. As noted, when asked by the employer at the meeting the grievor was immediately truthful, and made no attempt to hide his criminal record. In addition to an acknowledgment of his misconduct, the grievor's prospects for likely good behavior in the future appear promising. He knows that at his age, and with his employment history, discharge from this employment could lead other prospective employers to assume that, once again, he was involved in theft. Arbitrator Davie substituted a six month suspension and reinstated the Grievor without compensation or accumulation of benefits. -27- [92] In the case before me, the Grievor also had no prior discipline (although unlike the case before Arbitrator Davie he had no seniority). However, he did not immediately admit wrongdoing when confronted by his Employer; he does not recognize his misconduct; he does not appear to accept that the Employer was entitled to know the truth; and he was not immediately truthful. These, and the other circumstances reviewed above, compel the conclusion that the Grievor’s prospects for good behaviour in the future if reinstated are not promising. [93] The Union notes the Grievor’s evidence that his termination from employment as a correctional officer, his career of choice, has had a significant negative impact on him. I do not doubt that is the case. However, in view of all of the other factors outlined above, it would not be appropriate to reinstate him to that employment. Conclusion: [94] For the reasons stated, the grievance is dismissed. Dated at Toronto, Ontario this 7th day of June, 2022. “Ian Anderson” ______________________ Ian Anderson, Arbitrator