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HomeMy WebLinkAbout2009-2053.Bellamy-Brown.11-07-07 DecisionCommission de Crown Employees Grievance Settlement UqJOHPHQt des griefs Board dHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pl. : (416) 326-1388 x (416) 326-1396 7pOpF   Fa GSB#2009-2053, 2009-2054, 2009-2055, 2009-2056 UNION#2009-0130-0002, 2009-0130-0005, 2009-0130-0003, 2009-0130-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bellwn) amy/Bro Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Ken Petryshen FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel HEARINGMay 10 & 11, June 7 & 8 and June 28, 2010. - 2 - Decision [1]Mr. S. Brown and Mr. R. Bellamy were discharged by Superintendent R. Campbell on October 22, 2009, for an incident that occurred at the Chatham Jail on July 21, 2009. The basis for the termination of their employment is set out in separate letters which indicate that they were dischaUJHGEHFDXVHHDFK³IDLOHGWRHQsure the safety, security and efficient operation of the Chatham Jail in accordance with written policies and procedures and the instructions of supervisory staff when you intentionally permitted the passing of FRQWUDEDQGEHWZHHQXQLWVDQG´0U%URZQ¶VGLVFKDUJHOHWWHUUHOLHVRQWKHIROORZLQJ DGGLWLRQDOJURXQG³<RXDWWHPSWHGWRPLVOHDGWKe Ministry Investigation when, by your own admission, you initially lied to the Ministry Inspectors stating that you had not observed the SDFNDJHSDVVLQWRXQLWWKUHH´0U%URZQDQGMr. Bellamy filed individual grievances dated October 22, 2009, challenging the discharge and reTXHVWLQJ³LPPHGLDWHUHLQVWDWHPHQWDQGWR EHPDGHZKROHLQDOOUHVSHFWV´ [2] Superintendent Campbell, Mr. Brown and Mr. Bellamy testified in this proceeding. In addition to their testimony, a number of documents and a video were introduced on consent. The video is the surveillance camera footage of what can be described as the fishing incident that occurred on July 21, 2009, the incident that led to the discharges. One of the documents is the ,QYHVWLJDWLRQ5HSRUW ³WKH5HSRUW´ E\WKH Correctional Investigation & SHFXULW\8QLW ³&,68´ ,QVSHFWRU-0LFXFFLFRQGXFWHGWKH investigation with the assistance of Inspector E. Atherton. The Report includes a transcript of the statements made by Mr. Bellamy and Mr. Brown to the investigators. On July 22, 2009, the day after the incident, the investigators first interviewed Mr. Bellamy and then they interviewed Mr. Brown. Mr. Bellamy was interviewed again on July 28, 2009, primarily for - 3 - the purpose of putting to him the FRQIOLFWLQJDVSHFWVRI0U%URZQ¶s version of the incident. In determining the facts, I have carefully reviewed the oral testimony, the video and the documentary material, and I have considered the submissions of counsel relating thereto. [3] Before describing the incident in question, it is useful to note at the outset that Mr. %URZQ¶VDQG0U%HOODP\¶VWHVWLPRQ\DERXWWKHILshing incident is essentially consistent with the description of the incident that they each gave to the investigators when they were interviewed on the day after the incident. In making this observation, I appreciate that the Employer claims that Mr. Brown was not completely truthful until near the end of his interview. Mr. Brown and Mr. Bellamy do not dispute the key aspects of the allegations made by the Employer against them. They both admit that they observed the movement of contraband from one unit to another without doing anything about it, including informing anyone about the incident. They recognized and acknowledged their wrongdoing in their statements to the investigators. Mr. Brown, Mr. Bellamy and the Union concede that the conduct in question in this case represents a seULRXVFRQWUDYHQWLRQRIWKH(PSOR\HU¶VUXOHV +RZHYHUWKH\GLVDJUHHZLWKWKH(PSOR\HU¶VSRVition that their conduct warrants discharge in the circumstances. [4] The Employer takes the position that the offenses committed by Mr. Brown and Mr. Bellamy on July 21, 2009, are very serious in that they constitute a breach of trust that makes the employment relationship irreparable. Employer counsel submitted that their failure to address the movement of contraband warrants a zero tolerance approach and that they are not entitled to a second chance. In addition to claiming that Mr. Brown lied to the investigators, Employer counsel submitted that either Mr. Brown or Mr. Bellamy was not - 4 - truthful when they testified about the incident. In addition to claiming that there was just cause for the discharges, the Employer takes the position that I should not reinstate Mr. Brown and Mr. Bellamy even if I found that there was no just cause to discharge them because, in its view, this is the type of case that warrants the payment of damages instead of reinstatement. This is very much a case about whether the application of progressive discipline is appropriate when two employees with relatively little service and no previous discipline engage in serious misconduct involving the movement of contraband. [5] Given the role that the contraband issue plays in this case, it is also useful at this point to comment on the significance of contraband in a correctional setting. Contraband is defined essentially as unauthorized property in the possession of an inmate. Items such as drugs, tobacco, materials that could be used as weapons and even food in certain contexts fall within the definition of contraband. Superintendent Campbell described the institutional concern about the presence of contraband and the policies that relate to contraband. I was also provided with some decisions that address why contraband creates difficulties within a correctional institution. These sources illustrate that contraband is detrimental to the safety and welfare of inmates and employees and to the overall security of the institution. Superintendent Campbell described how even food items and tobacco can lead to disputes among inmates which can develop into physical confrontations that in turn create a risk for correctional officers. The Judge in R. v. MarchFLWHGEHORZQRWHGWKDW³7KHSUHVHQFHRI contraband in an institution often leads to viROHQFHDQGH[WRUWLRQ´*LYHQWKHULVNVWR employees and inmates, there are a number of policies at the Chatham Jail that deal with contraband. Without referring to them specifically, I simply note that correctional officers are obliged to be vigilant to the presence of contraband and to conduct searches and remove - 5 - contraband from inmates and to report on an inPDWH¶VFRQGXFWLQUHODtion to contraband. Inmates can be issued misconducts for the possession of contraband. Superintendent Campbell testified that the failure of a correctional officer to deal with contraband appropriately may lead to an inmate blackmailing the correctional officer into committing further violations of the rules. Correctional officers are trained to deal with all facets of the contraband issue. There was no suggestion that Mr. Brown and Mr. Bellamy were unaware of their obligations and the policies concerning contraband. [6] Both counsel advised me that they were unable to find a GSB case involving contraband where the circumstances were similar to the instant case. In support of its position, Employer counsel referred me to the following decisions: R v. March, [2006] O.J. No. 664 (O.C.J.); OPSEU (Gillis et al.) and Ministry of Community Safety and Correctional Services(2008), GSB No. 2003-1520 et al. (Abramsky); Re Ontario Public Service (PSOR\HHV¶8QLRQ, [1977] O.O.H.S.A.D. No. 23 (Office of Adjudication); Re Manitoba *RYHUQPHQW(PSOR\HHV¶V8QLRQY0DQLWRED, [2002] M.G.A.D. No. 58 (Wood); and, Re Hendrickson Spring Stratford Operations and United Steelworkers of America, Local 8773 th (2009), 191 L.A.C. (4) 116 (Solomatenko). Union counsel relied on the following decisions:Re Ontario Public Service Employees Union and Ministry of Community Safety th and Correctional Services (2005), 137 L.A.C. (4) 111 (Herlich); Re Tenant Hotline and Peters and Gittens (1983), 10 L.A.C. (3d) 130 (MacDowell); and, Ontario Public Service th Employees Union and Ministry of Natural Resources (2005), 143 L.A.C. (4) 14 (Petryshen). [7] Mr. Brown and Mr. Bellamy were both unclassified correctional officers at the time of the discharges. Mr. Brown has a continuous service date of December 12, 2005, - 6 - giving him a little less than four years of service. He commenced his employment with the Ministry in Windsor and then moved to the Chatham Jail in December of 2006. He is 36 years of age, divorced, with no children. Other than securing some work through the Ontario Works program, his efforts to secure employment since his discharge have been largely unsuccessful. His formal education ended after he completed high school. Mr. Bellamy has a continuous service date of December 1, 2008. He started with the Ministry at the Chatham Jail and was there for approximately eight months when the incident occurred that resulted in his discharge. He is 41 years of age, with support obligations arising from the separation from his wife and children. He has been unable to secure employment since his discharge. His claim for unemployment insurance was initially successful, but the (PSOR\HU¶VDSSHDORI WKH&RPPLVVLRQ¶VGHFLVLRQZDVDOORZHGZLWKWKHUHsult that Mr. Bellamy is required to repay $5,400.00. He cashed out his RRSP and has been on welfare. Mr. Bellamy attained one year of university, majoring in history. [8] On July 19, 2009, two days before the fishing incident, staff witnessed the tossing of contraband, likely tobacco, over the wall into the exercise yard. This apparently common event resulted in a complete search of the institution on July 20, 2009. Extra staff, including Mr. Brown, was called in to carry out the search. It is unclear if any contraband was discovered as a result of the search. Mr. Bellamy was told on the following day by another CO that tobacco had been found in unit 5 during the search. [9] Mr. Brown worked a twelve hour shift on July 21, 2009, starting at 7.00 a.m., while Mr. Bellamy worked a twelve hour shift commencing at 8.00 a.m. Mr. Brown took over post #3 from Mr. D. Carther at 3.30 p.m. Mr. Carther told Mr. Brown on the - 7 - changeover that inmates had been attempting to move contraband between units all day. At 1.55 p.m., Mr. Carther made a note in the post #3 log that inmates in units 2 and 3 were trying to pass contraband between them. He prepared an occurrence report at 2.12 p.m. wherein he described two attempts to fish contraband from unit 2 to unit 3. The first attempt occurred at 12.20 p.m. and he noted that he had retrieved a small amount of tobacco in the hallway. The inmates in unit 2 were locked down because there was evidence that an inmate or inmates from that unit had been smoking tobacco. Mr. Brown observed fishing attempts soon after he took over at post #3. He wrote in the post #3 log at SPWKDW³8QLW DWWHPSWLQJWRILVKIURP8QLW´:KHQZDONing in the hallway Mr. Brown kicked a string, snapping it. He then threw the string away. [10] Post #3 is located on the main floor of the Chatham Jail where units 2 and 3 are located. There is a staff desk in a hallway for the use of the post #3 officer. The video shows Mr. Brown and Mr. Bellamy sitting at the staff desk when the fishing incident in question occurs. Mr. Brown is sitting at the center of the desk facing towards the wall, with Mr. Bellamy sitting in a chair on the side of the desk, to the right of Mr. Brown. The hallway continues to the left of Mr. Brown for approximately 35 feet where a grill door is located. This door is made of bars with a space at the bottom. Just before this door, on the right, is unit 3, consisting of a common area and a number of cells. On the other side of the hallway from unit 3 is a solid wall that is the back wall for unit 2. There is another hallway on the other side of the grill door. Proceeding left down that hallway after going through the grill doorway is a solid wall for a short distance and then the bars of a cell in unit 2. One of the occupants of that cell on July 21, 2009, was inmate Christians. The fishing attempts consisted of an inmate from unit 3 throwing a weighted string through the grill door and - 8 - bouncing the weight off the far wall in the hallway towards the cell in unit 2. Although the grill door is usually open, a decision had been made earlier on July 21, 2009, to keep the door closed because of the attempts to move contraband. Mr. Brown and Mr. Bellamy acknowledged that they had been verbally notified about keeping that door closed. [11] Mr. Bellamy was assigned to post #5 on July 21, 2009. This is a floating post where the officer moves throughout the jail to assist where needed. At some time before 5.00 p.m., Mr. Bellamy came to assist Mr. Brown at post #3. As noted previously, it was while they were together at post #3 that the relevant movement of contraband occurred from unit 2 into unit 3. [12] As they were seated at the staff desk, Mr. Bellamy heard some whispering from the direction of unit 3 and both Mr. Bellamy and Mr. Brown looked down the hallway towards unit 3 and the grill door. They noticed the movement of a string emanating from unit 3, through the grill door towards unit 2. Given that Mr. Bellamy was a relatively new employee and may not have witnessed a fishing incident, Mr. Brown suggested to Mr. Bellamy that he check it out. Although he had heard that there was a lot of fishing of contraband at the jail, Mr. Bellamy had not previously observed such activity. Mr. Bellamy left his seated position and slowly went down the hall toward unit 3. He stopped for a short while before passing in front of unit 3 to see if anything would come across into that unit and who would receive it. When he got to the front of unit 3 he did not see anyone holding the string. He opened the grill door and turned left. After getting past the solid wall on the left side of the hallway, he looked into unit 2. Mr. Bellamy testified that he observed inmate Christians wrapping a string around a single package of saltine crackers. He indicated that - 9 - the crackers were inside a thin clear plastic wrap, with a red stripe. He watched for a few VHFRQGVDQGWKHQDVNHG³:KDWDUH\RXGRLQJ"´ Christians was shocked when he heard Mr. %HOODP\DQGVDLG³+RO\VKLW\RXVFDUHGPH´0U%HOODP\DVNHGKLPDJDLQZKDWKHZDV doing and Christians told him that he was giving his crackers to someone in unit 3. Mr. Bellamy merely gave Mr. Christians a disgusting look and walked away. He did not confiscate the string or the crackers. Mr. Bellamy wanted to see how the fishing was done and whether the attempt would be successful. He did not believe that an item could be moved successfully from unit 2 to someone in unit 3. As he made his way back to the staff desk, he neglected to close the grill door. Since the grill door is usually open, he gave no thought to closing it and Mr. Brown did not remind him to close it. He glanced into unit 3 again as he walked by and did not notice anything unusual.He testified that when he returned to the staff desk he told Mr. Brown that he had surprised inmate Christians as he was trying to tie crackers on the end of a string. They both then turned to look down the hallway towards unit 3. Mr. Brown was looking in that direction because he anticipated that there would be another attempt to throw a string from unit 3 to unit 2. He assumed that Mr. Bellamy had picked up the string that they had observed earlier and disposed of it. Mr. Bellamy was looking down the hallway to see if anything would pass from unit 2 to unit 3. It did not take long before something moved very quickly along the hallway floor from unit 2 into unit 3. This movement of contraband occurred at approximately 5:45 p.m. Mr. Brown OHWRXWWKHZRUGV³2KFUDSRQHJRWWKURXJK´+Htestified that he observed what he believed was a grey sock, likely containing tobacco, move into unit 3. Mr. Bellamy testified that he believes what he observed was a cellophane package of crackers move into unit 3. Mr. Brown left the staff desk and walked toward the grill door. He noticed that the inmates had scattered when he looked into unit 3. He closed the grill door and eventually made his way - 10 - back to the staff desk. Although it appears from the video that they engaged in some discussion after they observed the movement of contraband from unit 2 into unit 3, Mr. Brown and Mr. Bellamy testified that they could not recall what they had said to each other about the incident. Mr. Bellamy remained at post #3 for a short while and then left for another part of the jail. Mr. Brown told the correctional officer who relieved him at post #3 that inmates had been fishing contraband all day. [13] There is no dispute that Mr. Brown and Mr. Bellamy did not respond appropriately to the fishing incident. Simply put, they did not make any attempt to prevent the movement of contraband when they first observed the fishing line and they did not report such movement to management. The evidence suggests that the main reason Mr. Bellamy and Mr. Brown did not respond appropriately after they observed the movement of contraband into unit 3 was because they did not consider the fishing incident to be a very significant event at the time. Given his testimony that he believed the contraband was crackers, Mr. Bellamy felt that the crackers would simply be consumed without causing harm to anyone. Since Mr. Brown was the post #3 officer, Mr. Bellamy thought Mr. Brown would do whatever was required in the circumstances. Given that he believed that the contraband was likely tobacco, a common form of contraband at the jail, Mr. Brown thought that the tobacco would be used in short order. Mr. Brown gave two other reasons for his failure to respond to the movement of contraband. He thought that reporting the incident may have consequences for Mr. Bellamy since he did not dispose of the string when he had the opportunity to do so. As well, Mr. Brown was simply interested in completing his shift and going home, rather than reporting the incident, conducting a search and completing the necessary reports. - 11 - [14] Following the usual practice, Mr. C. Williston, Security Manager, reviewed the security tapes early on July 22, 2009, which recorded events of the previous day. This is when the fishing incident first came to the attention of management. He immediately reported the matter to Superintendent Campbell who was driving to Brantford that morning. Superintendent Campbell returned to the Chatham Jail and reviewed the tapes. Although Mr. Williston and Superintendent Campbell were now aware of the movement of contraband from unit 2 into unit 3, neither of them initiated steps to retrieve the string or to search for the contraband. Superintendent Campbell immediately contacted the Deputy Regional Director and asked for a CISU investigation. As noted previously, the CISU investigation commenced on July 22, 2009 when Inspectors Micucci and Atherton interviewed Mr. Bellamy and then interviewed Mr. Brown. Inmate Christians refused to provide information to the investigators when asked to do so on July 22, 2009. Superintendent Campbell interviewed inmate Christians about the fishing incident on July 24, 2009. He testified that Christians told him that a quantity of tobacco waVLQVLGHDVRFNWKDWZDVDWWDFKHGWRWKH³ILVK OLQH´+HGHQLHGWKDWWKHUHZHUHGUXJVZHDSRQV or anything else inside the sock. From his demeanour and experience with this inmate, Superintendent Campbell determined that inmate Christians was likely telling the truth. [15] Superintendent Campbell reviewed the Report and then held disciplinary meetings with Mr. Brown and Mr. Bellamy. When Superintendent Campbell asked Mr. Brown during his disciplinary meeting about his failure to initially disclose to the investigators the movement of contraband from unit 2 to unit 3 and his admission to the investigators that he had lied to them, Mr. Brown acknowledged that he had lied to the investigators. Taking into account the seriousness of their misconduct, their short service - 12 - and the credibility issues, Superintendent Campbell decided that discharge was the appropriate response in the circumstances. [16] I begin my determination of this matter by considering the seriousness of the offences committed by Mr. Brown and Mr. Bellamy. As I noted previously, the Union, Mr. Brown and Mr. Bellamy concede that there was serious misconduct in this instance. However, it is useful to review the precise nature of their misconduct. They did not make any attempt to confiscate the string when it was first observed so as to prevent the movement RIFRQWUDEDQG,DJUHHZLWK(PSOR\HUFRXQVHO¶V assessment that it was inappropriate for Mr. Bellamy to experiment with the movement of contraband in order to see if the inmates would succeed in moving an item from unit 2 to unit 3. Mr. Brown and Mr. Bellamy did not ensure that the grill door remained closed. Although their failure to prevent the movement of contraband is serious enough, their conduct after the movement of contraband from unit 2 into unit 3 is particularly problematic. They made no effort to retrieve the string and contraband by conducting a search after the contraband moved into unit 3. They did not report the incident to their supervisor, nor did they initiate discipline against inmate Christians. They did not file an occurrence report of the incident, nor did they make a notation in the log located at post #3. Their conduct amounts to a complete failure to comply with their obligations when confronted with a contraband incident. It also amounts to a breach of trust that arises from their position as a correctional officer. Given that their actions or lack thereof involved contraband, it is appropriate to characterize the misconduct as a matter concerning health and safety. By not addressing the contraband issue appropriately, Mr. Brown and Mr. Bellamy placed at risk the heath and safety of inmates, of other correctional officers and of themselves. This makes what occurred on July 21, 2009 a - 13 - particularly significant and serious incident. It is evident that these two correctional officers were unaware of what contraband was being passed from unit 2 into unit 3 when the incident occurred. Mr. Bellamy testified that he thought it was crackers, but he was probably wrong. Mr. Brown thought it was tobacco, but this was only an assumption on his part. Mr. Brown DJUHHGZLWK0U0LFXFFL¶VVXJJHstion that they would have been responsible if an inmate ingested something and died in unit 3. In one sense, it was fortunate for Mr. Brown and Mr. Bellamy that their conduct did not result in harm to an inmate or to a correctional officer. I have no hesitation in concluding that Mr. Brown and Mr. Bellamy engaged in serious misconduct and that the Employer had cause to discipline them. [17] I have considered the usual factors arbitrators take into account when assessing whether there is a basis for substituting a lesser penalty, including the matters referred to by Union counsel during his submissions. I have considered the economic hardship Mr. Brown and Mr. Bellamy have experienced as a result of their discharge. I have also considered their admission to the investigators that they did engage in misconduct. I note however that such an admission is less significant when their conduct has been recorded on video and they are so advised before they admit to the inappropriate conduct. I have also taken into account that Mr. Brown and Mr. Bellamy had not been disciplined previously, although I also recognize that this factor is less significant for employees with little seniority. Although these factors favour the substitution of a lesser penalty, I am not satisfied that they tip the balance in favour of such a result when viewed in the context of all of the circumstances in this case. [18] The Union also argued that management¶VIDLOXUHWRFRQGXFWDVHDUFKRIXQLW RQFHLWEHFDPHDZDUHRI0U%URZQ¶VDQG0U%HOODP\¶VPLVFRQGXFWLOOXVWUDWHVWKDWWKHLU - 14 - conduct is not serious enough to warrant discharge. Although I found PDQDJHPHQW¶VIDLOXUH to conduct a search of unit 3 after it became aware of the movement of contraband into that unit troublesome, I do not find that this failure alters my view of the serious nature of Mr. %URZQ¶VDQG0U%HOODP\¶VFRQGXFWRUZKDWWKe appropriate penalty should be in these circumstances. Rather than a reflection of the seriousness of the health and safety incident, PDQDJHPHQW¶VIDLOXUHWRLQLWLDWHDVHDUFKRI unit 3 on the day after the incident merely indicates that management also failed in their duty to address a significant contraband incident. [19] The final matter I will address is thH(PSOR\HU¶VFODLPWKDW0U%URZQDQG0U Bellamy were less than candid with the investigators and in their testimony. In my view, this claim has some merit. When Mr. Brown was first asked what had occurred by the investigators, he gave a version which did not include the movement of contraband from unit 2 into unit 3. He was later asked if he witnessed something going through to unit 3 and he said that he did. He was then asked if he had lied to the investigators earlier and he admitted that he had lied about seeing WKH³SDFNDJHJRWKURXJK´:KHQDVNHGZK\KHKDGOLHGKH explained that he did not want to lose his job and that he did not want to say anything that would cause a problem for Mr. Bellamy. He then for the first time indicated that he witnessed a gray sock move into unit 3. When asked at the disciplinary meeting by Superintendent Campbell about his admission to the investigators that he had lied, Mr. Brown confirmed that he had lied to the investigators. Mr. Brown agreed during his testimony in chief that he did not initially make it clear to the investigators that he saw the movement of contraband. However, he testified that he was not intentionally hiding this - 15 - information and that when he admitted to lying he was referring to the fact that he had said something that was not true before his memory was jogged. [20] It is evident that Mr. Brown did not initially disclose to the investigators during his interview on July 22, 2009 that he had observed a grey sock move into unit 3. Although this failure does not likely amount to a breach of section 22 (1) of the Ministry of Correctional Services Act, since he eventually did disclose what he had observed to the LQYHVWLJDWRUV0U%URZQ¶VDWWHPSWGXULQJKLs testimony to explain this failure and to convince me that he had not lied to the investigators is not credible. He admitted he had lied to the investigators and he explained to them why he initially had not disclosed the movement of contraband. He reiterated that he had lied to the investigators to Superintendent Campbell. In these circumstances, it is difficult to accept his testimony that his initial failure to disclose the movement of contraband to the investigators was unintentional. [21] Mr. Bellamy has consistently maintained that he only observed a package of crackers move into unit 3 even though the video of the incident shows that this did not occur. He told the investigators that he saw crackers move into unit 3 during his interview on July 22, 2009, and again during an interview on July 28, 2009, after he was shown the video and told that Mr. Brown indicated that he had observed a grey sock move into unit 3. He testified WKDWKH³VWURQJO\EHOLHYHV´KHVDZFUDFNHUVPove into unit 3 because he saw the red colour on the package. He conceded however that the video did not disclose the movement of an item that contained any red colour. - 16 - [22] It is possible that Mr. Bellamy believes that he observed a package of crackers move into unit 3 because he had just witnessed inmate Christians wrapping a string around a package of crackers. It is also possible that Mr. Bellamy told the investigators that he observed the movement of crackers into unit 3 and continued to maintain this version of the incident out of a belief that the incident is less serious if the contraband consisted of crackers. There is some evidence to support this latter possibility. After Mr. Brown mentioned the grey sock for the first time during his interview with the investigators, Mr. Atherton asked him to confirm that he observed a grey sock and Mr. Brown did so and then added the IROORZLQJUHVSRQVH³$QG5REKDGVDLGVRPHWKLQJDERXWWKHVRFNZLWKFUDFNHUVEHLQJLQWKH VRFN´:KHQWKLVVWDWHPHQWZDVSXWWRKLm during cross-examination, Mr. Brown indicated that he was not sure that Mr. Bellamy had said anything about a sock. When Mr. Bellamy was asked about this during his cross-examination, he indicated that he did not remember seeing a sock or talking about a sock with Mr. Brown. The answers Mr. Brown and Mr. Bellamy gave about whether Mr. Bellamy referred to a sock on the day of the incident were not entirely satisfactory and detrimentally affects their credibility. The indication that Mr. Bellamy made reference to observing a sock on the day of the incident raises considerable GRXEWDERXWWKHYHUDFLW\RI0U%HOODP\¶VFontention that he only observed crackers moving from unit 2 into unit 3. Although not determinative, these credibility issues do not assist Mr. Brown and Mr. Bellamy in their request for reinstatement. [23] In balancing the relevant considerations in this case, particularly the seriousness of their misconduct, their limited service with the Employer and the issues concerning their credibility, I am compelled to conclude that reinstating Mr. Brown and Mr. Bellamy is not an - 17 - appropriate result. For the foregoing reasons, the grievances of Mr. Brown and Mr. Bellamy dated October 22, 2009, are hereby dismissed. th Dated at Toronto this 7 day of July 2011. Ken Petryshen, Vice-Chair