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Home My WebLink About2021-0653.Miller-Foster.Decision 23-12-18 Crown 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 # 2021-0653 UNION# 2021-0108-0015 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Miller-Foster) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Tatiana Wacyk Arbitrator FOR THE UNION David Wright Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING March 29, November 2, November 28, 2023 - 2 - Decision [1] This Grievance was selected as representative of a number of grievances challenging discipline levied for the alleged failure to comply with the Employer’s Directive related to the use of personal protective equipment (“PPE”) during the Covid pandemic. [2] The Grievance was filed pursuant to Article 22.16 of the Collective Agreement. That Article requires the mediator/arbitrator to give a succinct decision within five days after completing proceedings, unless the parties agree otherwise. [3] In this instance, given the breadth of the issues raised, and the utility of having somewhat more comprehensive reasons which might assist the parties in resolving similar grievances, the parties agree my decision ought to be issued in the normal course, rather than within five days of the completion of proceedings. [4] On behalf of the Employer, I heard the evidence of Rebekah Lindensmith, who, at the time at issue, was the Ministry Clinical Provincial Resource Nurse; Adam Lewis, the Staff Sergeant for Staff Services and the Covid Lead for Elgin Middlesex Detention Centre (“EMDC”) from March 15, 2021; and Brendan Reeves. who was, at the time at issue, Deputy Superintendent, Security and Compliance at EMDC. [5] The Grievor testified on behalf of the Union. The Employer relied on the following authorities: Occupational Health and Safety Act, R.S.O. 1990, CHAPTER O.1, section 28; Ontario Public Service Employees Union (Union) and The Crown in Right of Ontario (Ministry of the Solicitor General) GSB No. 2019-2154 (Anderson –September 17, 2021); UFCW, Local 175 and Highbury Canco Corp. (Failure to Accommodate), 351 L.A.C. (4th) International Union of Elevator Constructors, Local 50, Applicant v OTIS Canada Inc., Responding Party, OLRB Case No: 0029-22-G 2023 CanLII 15002 (ON LRB); Cargill Limited (Dunlop Road Plant) and United Food and Commercial Workers Canada, Local 175 and 633 and Grievances of Dan Agar Suspension and Discharge Mar.-21-2023. [6] The Union relied on: Ontario Public Service Employees Union (Union) and The Crown in Right of Ontario (Ministry of the Solicitor General) GSB No. 2021-2596 (Anderson – August 8, 2023) and excerpts 10.9.1 Factors Affecting Penalty and 10.9.3 Progressive Discipline from Volume 1 Evidence and Procedure; Mitchnick and Etherington. FACTUAL CONTEXT: [7] The events at issue occurred in January to March 2021, in the midst of what was, at the time, a fast-moving Covid pandemic. Pfizer-BioNTech COVID-19 vaccine, - 3 - the first vaccine, had just been approved in December 2020 and was not yet widely available. [8] On January 7, 2021, the Employer sent out a Directive titled “Universal Use of Eye Protection” to all institutional services staff (the “Directive”). There is no dispute the Directive required staff to wear appropriate eye protection as soon as they entered the institution, and that it was to be worn at all times. It stated in part: As an update to eye protection direction sent out from my office on December 3, 2020, the universal use of eye protection for staff in all institutions is being implemented effective today. The requirement is that all staff wear a mask and appropriate eye protection (see below) such as safety glasses, safety goggles, face shields or visors attached to masks at all times while in the institution. [emphasis added] … Currently, Public Health Units are identifying anyone who is not wearing mask, eye protection and within proximity of a known COVID-19 positive individual as a high risk close contact. … [9] The Grievor has been a Correctional Officer since Oct 10, 2017, and at the time at issue was and remains employed at the EMDC. [10] On four occasions subsequent to its issuance, the Grievor failed to wear appropriate eye protection as required by the Directive. [11] The first of those occasions was found to be justified, and no discipline warranted. [12] The subsequent three instances were found not to be warranted. Consequently, the Grievor was suspended one day for each incident, resulting in a three-day suspension without pay. [13] This Grievance challenges that discipline. [14] The details of the four occasions are set out below. January 15, 2021 [15] On January 15, 2021, the Grievor had been assigned to the Male Specialized Care Unit for the constant watch of an offender suspected of concealing contraband narcotics. [16] He indicated his safety eyewear fogged up as he was attempting to restrain the inmate in order to prevent him from swallowing the contraband, and consequently he removed his safety eyewear. - 4 - [17] While he was asked to write an occurrence report regard the use of force aspect of the incident, it was only sometime later that the incident was observed on CCTV, and the Grievor was directed to fill out another occurrence report regarding the absence of his safety eyewear during the incident. [18] The Grievor’s Occurrence Report regarding this incident was dated January 30, 2021. [19] While initially a concern, the Employer indicated this incident was not “levied” against the Grievor when determining his discipline following the three incidents referenced below, as the Employer was persuaded the removal of the safety eyewear was justified in the circumstances. [20] Although that incident was referenced in the discipline letter, and while the language could perhaps have been clearer in that regard – I am not persuaded any portion of the discipline resulted from the incident. January 26, 2021 [21] On January 26, 2021, a sergeant observed the Grievor in the staff lounge, consuming a drink, with his safety eyewear on top of his head, rather than covering his eyes. [22] The Grievor conceded this to be the case. In his Occurrence Report, also dated January 26, 2021, he indicated he had forgotten to put his goggles back on. [23] The Grievor subsequently indicated he had been drinking hot coffee and his goggles were fogging so he moved them to the top of his head. He testified that at the time, he still had his coffee in hand and that it was “a lot of work” to put them back on and off. He also conceded, however, that he was to be wearing his goggles on his face at the time. March 8, 2021 [24] On March 17, 2021, the Grievor was directed to provide an occurrence report after having been observed on CCTV during contact tracing, again wearing his safety eyewear on top of his head rather than covering his eyes. The date at issue was March 8, 2021, and at the time, the Griever was returning to the Institution following an inmate escort, and was exiting the transportation van. [25] The Grievor submitted his Occurrence Report, the same day, i.e. dated March 17, 2021, and did not deny failing to comply with the Directive. While he suggested it might have been “because of the fog that happens on the lens of the eyewear”, he also indicated he could not recall the reason for failing to wear his goggles. - 5 - [26] The Grievor also subsequently testified that at that time he did not understand he was to wear goggles when in the van, but conceded this was because he had not read the policy properly. March 21, 2021 [27] Finally, the Grievor was again subsequently observed on CCTV during contact tracing, without his goggles, neither on his head nor covering his eyes. The date at issue was March 21, 2021. [28] While the Grievor initially indicated he recalled his eyewear fogging up and placing them on his head, he subsequently conceded he only vaguely recalled the day, and that he may not have had his goggles at all. Rather, they might have been in his locker. [29] The Grievor indicated he had suggested he had removed them because they fogged up, as that is what usually occurred when he came inside wearing them. He kept wipes in his bag for that purpose. [30] The Grievor testified that he keeps a supply of goggles in his locker, and in the past, if he has none in his duty bag, and there are none at the front door, he just gets a pair from his locker. He suggested this is what had occurred on this instance. [31] The Grievor conceded at the subsequent Allegation Meeting that he knew better and would wear goggles at all times in the future. [32] The Grievor was not asked for an OR regarding that incident. ISSUES: [33] The facts in this instance give rise to the following issues. 1. Legitimacy of using CCTV for contact tracing; 2. If the use of CCTV for contact tracing was legitimate, can incidental observations be relied on for discipline purposes; 3. Was the Grievor’s conduct condoned; 4. Was the application of discipline inconsistent; and 5. Was the discipline imposed excessive in that it failed to reflect an approach of progressive discipline. [34] I will deal with each in turn. LEGITIMACY OF USING CCTV FOR CONTACT TRACING: Contact Tracing - 6 - [35] Contact tracing within the Institutions was carried out pursuant to the guidance of the Ministry of Health and was required for all positive Covid cases. At the time at issue, that guidance was set out in the publication “Management of Cases and Contacts of COVID-19 in Ontario” (version 11.0). [36] Contact tracing required the identification of those individuals who were within 2 metres of an infected person, and who were not wearing the appropriate PPE, for a cumulative 15 minutes over the course of 24 hours – over the preceding 48 hours. [37] In addition, contract tracing would be conducted in instances where the contact was wearing the appropriate PPE, but was still at high risk e.g., exposed to sneezing or coughing by the infected individual. [38] Contract tracing applied to both staff and inmates. As soon as the Employer became aware of a positive case, contract tracing would be conducted for the preceding 48 hours before the onset of symptoms, or 48 hours before a positive test. [39] Some, but not all institutions use closed-circuit television (“CCTV”) to conduct the contact tracing. However, as there are no CCTV cameras/monitors in washrooms, change rooms or break rooms, or where individuals interacted outside of the institution e.g., carpooling or on medical escorts, infected individuals would also be contacted regarding their recollection of their contacts in those locations. [40] Institutions without CCTV relied on their Infection prevention and control team or public health to conduct the contact tracing by calling those infected, and asking their recollection regarding those with whom they had contact. [41] Contact tracing proved difficult without the use of CCTV, not only because of the frailty of people’s memories i.e., staff moved frequently, and had difficulty assessing distance from others, but also because staff who were off sick would often not answer their phones. Nor could those conducting the contact tracing communicate the identity of staff who were ill without their consent. If it was withheld, the contract tracing was limited to only the infected individual’s recollection of their contacts. [42] Records regarding the location of inmates and correctional officers, as well as which correctional officers escort inmates between various areas or to external appointments, could also assist in contact tracing, but many of these records were incomplete or not filled out at all. For example, while some correctional officers will record if they briefly go to another area to get supplies, or a drink, or to speak to someone in the health care unit or to a manager, others will not. Nor are they required to record instances where they pull down their masks to take a drink. - 7 - [43] If inmates were infected, in order to protect their privacy, and in the absence of CCTV cameras, the contact tracing comprised of looking at the logbooks to see where the inmate had been and asking staff if they were wearing PPE on a certain date, and if they were within 2 metres of any of the inmates within the critical time period. [44] The ability to accurately track where infected individuals had been also important so the area could be cleaned. [45] Because of the shortcomings of relying only on the memories of those involved, the Employer’s uncontested evidence was that contract tracing using the CCTV cameras was considered the “Gold Standard”. Appendix COR10 [46] The issue of whether contact tracing could be conducted using CCTV must be determined in the context of the parties’ agreement regarding the use of surveillance and electronic equipment in the workplace. [47] This agreement is set out in “Appendix – COR10”, a Letter of Understanding included in the collective agreement, and revised on January 24, 2013. It states: Surveillance in Correctional Workplaces The parties agree to the following regarding use of surveillance and electronic equipment in the workplaces: Purpose The purpose of electronic monitoring and surveillance of Correctional workplaces is for the safety and security of staff, inmates and property of the respective ministry. Information obtained may be used for protection against criminal acts such as theft, depredation, and damage to property. Advisement The Employer shall notify the Union of any increases in use of surveillance equipment. In instances that the Employer is relying upon any type of electronic audio or video recordings for discipline or investigative purposes, the Employer shall notify the Union prior to holding a meeting with the employee for the purpose of investigation, that the employer is in possession of electronic audio or video recordings that will be used for discipline or investigative purposes. Prior to a disciplinary meeting, the Employer will provide a copy of such recording to the Union, as soon as reasonably practical, upon request. The use of electronic monitoring surveillance equipment is not to be used as a replacement for supervising or managing, or as a means to evaluate employee performance. - 8 - Any disputes regarding surveillance in a Correctional workplace by the Employer shall be referred to the appropriate MERC for discussion and resolution. [48] There was no dispute that employees’ privacy interests continue to exist within the employment relationship, and that within an employment context an individual’s privacy interests are balanced against and may be outweighed by the employer’s legitimate interests. (See Ontario Public Service Employees Union and The Crown in Right of Ontario (Ministry of the Solicitor General) GSB No. 2019-2154 (Anderson – September 17, 2021 at paragraph 67). [49] As stated by Arbitrator Anderson at paragraph 69 of the above cited decision, the factors to be considered in assessing an employer’s interest include: 1. the specific nature of the interest, including whether it engages legitimate business interests of the employer; 2. whether surveillance is done in good faith in furtherance of that interest; and 3. whether intrusion upon privacy is reasonably necessary to meet that interest. Employer [50] The Employer pointed out the events at issue took place before vaccines were widely available, and during a period of significant outbreaks in the correctional institutions. [51] Infection with the virus gave rise to concerns regarding serious illness, death, and potential long-term consequences. Given the significant risk posed by the infection, there was no dispute that trying to stop the spread and to alert people who may have been in contact with an infected person i.e., contact tracing, was critical, and very much a safety precaution necessary to protect workers and their families. [52] The Employer emphasized that, as set out above, the use of CCTV for contact tracing was “the gold standard” and maintained it was necessary for contact tracing due to the privacy boundaries around medical information. This included the inability to identify inmates who were infected. [53] The Employer pointed out that without the availability of CCTV for contact tracing, correctional officers would have to be questioned regarding which inmates they had had contact with, and if there had been contact with infected inmates, the Employer would then have to rely on the correctional officers’ memory to recall who else they had been in “close contact” as defined by Public Health. - 9 - Union [54] As indicated above, the Union did not dispute the legitimacy of the Employer’s interest in engaging in contract tracing. [55] Rather, it submitted that doing so through the use of CCTV was not reasonably necessary, and that there were less intrusive methods of doing so. [56] Specifically, the Union pointed that Public Health generally, and successfully conducts contact tracing by telephone. [57] The Union pointed out there was no evidence employees could not recall whom they had been within 6 feet of for 15 minutes, which the Union suggested was very different from recalling everyone they passed in the hallway. [58] The Union also pointed out that CCTV was an incomplete tool, as people carpool to work together, and as there are no CCTV in lunchrooms, locker rooms and washrooms. As a result, its use had to be supplemented using the usual method of contacting infected employees to determine their close contacts, as defined by the policy. [59] Accordingly, the Union submitted that while CCTV was a tool that could be utilized for contact tracing, it was not the best tool, and given the impact on the privacy rights of employees, was not legitimate in the circumstances. Analysis: [60] Appendix COR10 expressly sets out the parties’ agreement that CCTV surveillance can be utilized for the safety of staff and inmates. [61] It is difficult to think of a clearer utilization that could be characterized as “for the safety” of staff and inmates, than contact tracing in the midst of a deadly pandemic. [62] I am not persuaded that relying on the memories of those who are infected or may be infected is the best method by which contact tracing could be conducted. Indeed, it is apparent it is a significantly inferior methodology, not the least of the reasons being that correctional officers who are ill and at home may not answer the phone if Public Health were to attempt to contact them. Nor is there reason to believe their memories would be complete and accurate, despite their illness. Rather, the opposite appears likely. Disposition: [63] For the reasons set out above, I find the Employer’s use of CCTV to conduct contract tracing at the time at issue: 1) engaged a legitimate interest of the - 10 - employer to keep the institutions safe; 2) was in good faith in furtherance of that interest; and 3) the intrusion upon privacy is reasonably necessary to meet that interest. [64] Accordingly, I find the use of CCTV for contact tracing at the time at issue entirely reasonable, necessary, and legitimate. RELIANCE ON INCIDENTAL OBSERVATIONS FROM USE OF CCTV FOR CONTACT TRACING FOR DISCIPLINE PURPOSES: [65] The discipline related to the occurrences dated March 8 and March 21, 2021 resulted from the observance of the Grievor on CCTV during contract tracing. Only the incident of January 26, 2021 was observed directly by a sergeant. Employer [66] The Employer pointed out that correctional workers did not have the option of working at home, and across Canada and the world, precautions to protect workers were introduced. These included the wearing of PPE. [67] The Employer pointed out there is no dispute that workers are required to wear the protective equipment required to be used or worn by the Employer (See: section 28(b) of the Occupational Health and Safety Act), and that the goggles were to protect infection by droplets entering workers’ eyes. [68] The Employer submitted that the issue of whether incidental observations during the legitimate use of CCTV could be used for discipline purposes has already been litigated and determined by Arbitrator Anderson, in Ontario Public Service Employees Union and The Crown in Right of Ontario (Ministry of the Solicitor General) GSB No. 2019-2154 (Anderson – September 17, 2021), supra. [69] In paragraphs 113 to 119 of that Decision, Arbitrator Anderson rejected the Union’s argument that the use of CCTV as evidence to support discipline of a correctional officer falls outside the scope of the purpose, or at least the uses of surveillance videos permitted in Appendix COR10, and therefore, it is impermissible. Arbitrator Anderson stated at paragraph 115: [115] I am not persuaded by this argument. The misconduct in question was discovered incidental to a review of the surveillance video, which was conducted in good faith for the purpose permitted by Appendix COR10 and was reasonably necessary in order to accomplish that purpose. For the reasons stated above, provided the surveillance or the review of the video of the surveillance meets those criteria, or the information was discovered incidental to such surveillance or review, I reject the proposition that Appendix COR10 only permits the Employer to discipline for misconduct discovered - 11 - as a result of surveillance which amounts to “criminal acts such as theft, depredation and damage to property”. Union [70] The Union focused on the language of Appendix COR10 which precluded the use of electronic monitoring surveillance equipment as a replacement for supervising or managing, or as a means to evaluate employee performance. [71] The Union pointed out this wording was expressly agreed to by the parties, and space must be left for those words to have meaning. [72] In that regard the Union pointed to the following of Arbitrator Anderson’s comments: [94] In my view, therefore, provided the surveillance was conducted for the purpose of “the safety and security of staff, inmates and property of the respective ministry”, the first statement does not preclude the Employer from making use of information obtained for other incidental purposes. The ability of the Employer to do so is subject to the restrictions to which the parties have expressly agreed, set out in the second statement. It is also otherwise subject to a balancing of interests, as discussed further below. [emphasis added] [73] The Union submitted that the extent CCTV is permitted to be used for other incidental purposes is subject to a balancing on interests. In other words, even if the incidental purpose for which CCTV is used is legitimate, a balancing of interests must be conducted to determination whether that use is proportionate. [74] The Union submitted that it was not legitimate to use the CCTV footage to discipline for failure to wear eye protection. [75] The Union pointed out that in the March 8, 2021 incident, in which the Grievor failed to wear goggles as he was returning from an escort, the CCTV camera showed that a supervisor was close enough to observe the Grievor was not wearing eye protection, but expressed no concern, and took no action. [76] The Union submitted this is an example of the surveillance being used as a replacement for supervision by the supervisor. Accordingly, it was prohibited by Appendix COR10, and therefore was not valid. [77] The Union also pointed out that, unlike reviews of “Use of Force” incidents, the use of CCTV for contact tracing involves a review of a much broader, constant stream of recording for 48 hours. The Union submits this gives rise to additional potential disciplinary instances that have not arisen as a result of supervision. - 12 - [I note the Employer maintains the 48 hours of constant surveillance is only for inmates, rather than watching one range for 48 hours, as that is necessary to determine who had contact with the inmates and for how long] [78] Accordingly, the Union submitted discipline arising out of incidental observations while using CCTV for contact tracing purposes is not a reasonable balance between the Employer’s interest in keeping employees and inmates safe, and respecting the privacy interests of employees. Analysis [79] Arbitrator Anderson dealt with a submission similar to the Union’s in the instant case regarding the presence of a supervisor, who could have but did not address the Grievor’s failure to wear his goggles. He stated: [117] … Surveillance for the permitted purpose of safety and security will inevitably observe or record staff in the performance of their duties. The purpose of the review of the information captured by the surveillance was not to manage or supervise staff nor was it to act as a means to evaluate the performance by staff of their duties. It was to investigate an incident involving serious injury or death of an inmate in order to secure the safety and security of the staff, inmates and property at the institution. The discovery of the misconduct by staff was incidental to that review. The review, therefore, cannot be said to have been a replacement for management or supervision. The fact that the Employer might have discovered the misconduct by having a managerial employee walk the floor of the institution is irrelevant as that was not the purpose for which the review was undertaken. Nor was the information obtained with respect to the performance by staff of their duties used “as a means to evaluate employee performance”; rather it was used as evidence of culpable misconduct. Thus, the specific prohibition in Appendix COR10 against the use of surveillance as “a means” to evaluate performance is not engaged. [118] In the result, I find that the information of misconduct relied upon by the Employer was obtained incidentally to review of surveillance information for the purpose permitted by Appendix COR10, which review was reasonably necessary and conducted in good faith for that purpose, and that the use of that information by the Employer is not precluded by Appendix COR10. [emphasis added] [80] I similarly find that the proximity of a supervisor in the March 8, 2021 incident is irrelevant, as identifying individuals who were not compliant with the Directive was not the purpose for which the review was undertaken. - 13 - [81] Rather the CCTV review was used for the purpose of contact tracing, which is clearly consistent the agreed purpose of addressing the safety of staff and inmates. Thus, the specific prohibition in Appendix COR10 against the use of surveillance as a substitute for supervision is not engaged. [82] Further, I did not understand Arbitrator Anderson’s decision to require an exercise in balancing the agreed to uses for CCTV with employees’ privacy interests each time an incidental disciplinary matter was observed on CCTV. [83] Accordingly, it is not clear to me that the breadth of the CCTV review when used for contract tracing alters the analysis. In other words, as long as the primary purpose of the CCTV is consistent with that agreed to by the parties, i.e., is for the safety and security of staff, inmates and property of the respective ministry, it is a legitimate use – subject of course to the exclusions set out in Appendix COR10 i.e. use as a substitute for supervision or for the purpose of performance evaluation. [84] In that regard, I note that having commented that the Employer’s use of information incidentally available on CCTV is subject to a balancing on interests, Arbitrator Anderson subsequently added: [101] Having said that, a common fact for employees in the correctional workplaces to which Appendix COR10 applies is that they are aware that surveillance is taking place for the purpose of safety and security. Further, employees in a correctional workplace know, or ought to know, that the surveillance feed or recordings are subject to review for certain purposes, including investigating certain incidents of assault and live security episodes. This weighs heavily in the assessment of the objective reasonableness of employees’ expectations of privacy in the reference cases before me. [85] He continued in this vein in paragraph 119: [119] As the parties did not directly address the balancing exercise in their arguments with respect to this group of cases, I will be brief on this issue. For the reasons stated, the Employer has established that its intrusion upon employees’ privacy interests was incidental to a review of surveillance video which was done in good faith, for the permitted purpose and was reasonably necessary. In terms of the employees’ privacy interests, the fact that widespread surveillance is known to take place within correctional institutions and that the resulting videos are known to be reviewed when there are serious incidents involving death or injury to an inmate weighs against any reasonable expectation of privacy when the videos are reviewed. Further, employees know or ought to know that they may be disciplined in relation to misconduct during the performance of their duties which becomes known to the Employer. This further reduces the reasonableness of any expectation of privacy in relation to such misconduct. Finally, there are no countervailing - 14 - facts such as, for example, the activity having taken place in a space, such as a staff washroom, where there would be heightened reasonable expectation of privacy. [86] I agree with Arbitrator Anderson that the awareness of the widespread surveillance, and the possibility of its review for a wide range of reasons, including contact tracing, undermines the Union’s assertions regarding the impact on employees’ privacy interests. Disposition: [87] Accordingly, I find the Employer can rely on incidental observations from the use of CCTV for contact tracing for discipline purposes. CONDONATION OF THE GRIEVOR’S CONDUCT: [88] As indicated above, the Grievor was directed to provide an occurrence report regarding his January 15, 2021 failure to wear his goggles sometime after the occurrence date. He did so on January 30, 2021. [89] However, prior to submitting his Occurrence Report regarding January 15, 2021, the Grievor was again observed with his goggles on his head on January 26, 2021. He was directed to, and provided an Occurrence Report on that date. [90] The Grievor testified that after submitting the two Occurrence Reports, he thought his answers and responses were accepted as sufficient, and that his actions were viewed as justified. [91] This was followed by the next occurrence on March 8, 2021, for which the Grievor again was directed to provide an Occurrence Report, which he did on March 17, 2021. [92] The Grievor agreed that the requests for occurrence reports conveyed the Employer’s view that wearing PPE was important, but testified that he did not see these requests as “reminders” regarding the need to comply with the Directive. Rather, he indicated he viewed them as simply a request for an explanation. [93] The final incident was on March 21, 2021, and the Grievor was not asked for an occurrence report for that occasion. Rather, the first time that occurrence was raised with him was on April 1, 2021, when he received notice of the Allegation Meeting. The notice referenced all four incidents. Employer [94] The Employer pointed out that, with one exception, the Grievor did not dispute the directive to wear eye protection at all times while in the institution, or that he ought to have worn eye protection. - 15 - [95] The one exception was the first incident on January 15, 2021, when the Grievor made the judgement call to remove his foggy goggles to more clearly see the inmate he was trying to restrain, and which the Employer viewed as justified. [96] In anticipation of the Union’s challenge that each incident ought to have been dealt with separately and more expeditiously, Counsel for the Employer submitted this was unrealistic given the speed with which pandemic-related events were unfolding. [97] Rather, Counsel for the Employer submitted that the requests for occurrence reports, and the Grievor’s agreement with the Directive, acted as reminders to comply. [98] Accordingly, the Employer submitted there was no prejudice to the Grievor for the failure to escalate each incident to the next level. [99] The Employer pointed out that it was only after repeatedly reminding the Grievor, and after a “pattern” of disregarding the Directive emerged, that a decision was made to escalate the Employer’s response. [100] The Employer submitted that safety infractions are one of the most serious workplace offences, and that the discipline ought to reflect this. [101] In that regard, the Employer relied on the Labour Relations Board decision in OTIS Canada Inc., supra. In that case, a mechanic was working in an escalator pit. There was no dispute he was working without wearing his safety harness, in contravention of a Company safety rule. He received a two-day suspension as discipline. [102] The blanket rule had been introduced as a result of the number of fatalities and severe injuries resulting from falls that had occurred in the industry, and required that employees wear a safety harness at all times when working at a construction site, regardless of whether there was an immediate fall hazard. The intent was that employees would be in a position to anchor their safety harnesses immediately when an actual fall exposure arose. [103] While the grievor was aware of the rule, he disputed the need for the harness, as there was no fall hazard in the pit. [104] In its analysis, the Board referred, in paragraph 35, to the Cargill decision, supra: 35. In Cargill, supra, the arbitrator had this to say, at paragraphs 47 to 49, respecting the principles that apply when considering a violation of health and safety rules: - 16 - 47. This raises the issue of what factors and principles should be considered in assessing the appropriateness of a disciplinary sanction in cases for the violation of a health and safety rule. Having carefully considered all the cases put before me by both of the parties, I find that the best passage on this issue is found at paragraph 27 of the Imperial Tobacco case put forward by the Employer, in which Arbitrator Lynk stated that "the arbitral case law establishes a number of guiding principles to judge the appropriateness of the punishment" for safety-related infractions, which included the following: 1. Safety in the workplace is both a stringent statutory obligation and an important industrial relations concern that involves employers, unions and employees. Given the potential consequences, safety infractions are among the most serious of workplace offences. (emphasis added) 2. As the industrial relations party with the pre-eminent control over the workplace, the employer has a legal obligation to provide a safe and secure workplace for its employees. Hand in hand with this obligation is the employer's authority to insist that workers will perform their duties in a safe and efficient manner. 3. Workplace misconduct arising from deliberate, reckless, or negligent behaviour and which results in a potential safety threat or an actual injury is grounds for significant discipline, up to and including dismissal. 4. There does not have to be physical injury or actual harm to establish the seriousness of the incident. 5. The mitigating circumstances that an arbitrator will consider in a safety discipline case are those accepted disciplinary elements as listed in Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356 (Reville) and William Scott & Co. Ltd. (1977), 1 Can. L.R.B.R. 1 (B.C.L.R.B.) In any particular safety-related offence, the most important mitigating factors are those that will address the probabilities the grievor repeating the same of offence. [sic] 6. Safety rules have to build in the concept of the duty to accommodate. These rules have to ensure that, - 17 - while they may be stringent and demanding, they also incorporate concepts of equality that eliminate all forms of discrimination. [105] The Board found that in that instance, the grievor was well aware of the rule requiring him to wear a safety harness at all times when working at a construction site, but that he thought the rule was “idiotic and stupid”. [106] The Board reiterated the “widespread” recognition in arbitral jurisprudence that health and safety infractions are extremely serious, and the enforcement of health and safety rules is extremely important. [107] Considering all the circumstances, the Board declined to reduce the two-day suspension. [108] The Employer pointed out that in that instance, unlike the one before me, there was no series of events. Rather, there was the failure to comply with the safety rule which resulted in a two-day suspension, which was upheld. [109] The Employer also further relied on the decision in Cargill, supra to emphasize the importance of complying with health and safety policies. [110] In that instance, a grievor who had failed to lock-out a trailer received a three-day suspension. At the time, the grievor had a prior three-day suspension for an earlier safety violation. Under the employer’s “disciplinary stream” a second safety violation would have resulted in termination. However, in light of the grievor’s length of service, the employer made an exception, and imposed a second three-day suspension. [111] Despite the absence of any negative consequences from the grievor’s transgression, and his fully acknowledging the seriousness of it, Arbitrator Chauvin upheld the three-day suspension. [112] The Employer argued that the importance placed on health and safety violations demonstrated by the above cases supports the Employer’s decision in this instance, to move to a more formal response following what became a series of failures by the Grievor to comply with the Directive. Union [113] The Union pointed out that although the Grievor was asked to provide occurrence reports on January 26, January 30, and March 17, 2021, he heard nothing further regarding those events until April 1, 2021, when he received notice of the allegations before me, including for the first time, those related to the March 21, 2021 occurrence. - 18 - [114] In the first instance, the Union focussed on the more than full two-month delay between the request for the first two Occurrence Reports on January 26, 2021, and January 30, 2021, and the allegation letter, dated April 1, 2021. [115] While the Employer submitted the instances at issue took place during a time when events were moving at too fast a pace for the Employer to have reacted more quickly, the Union submitted there was no evidence to support this assertion. [116] Rather, the evidence showed the Employer was tracking the violations of the Directive on a spread sheet, which would have enabled the Employer to follow- up. However, it failed to do so for two months. [More will be said regarding the spread sheet below] [117] The Union was clear it was not simply relying on delay, but also on what it characterized as the condonation conveyed by the delay, which it maintained was prejudicial to the Grievor. [118] In that regard the Union referenced Arbitrator Abramsky’s decision in Valovich et al, supra where she stated: [45] In Re OPSEU (Bonacci), supra, the Board noted at p. 7, that “the arbitral principle established in the case law is based not upon the delay per se, but the potential impact of the delay on the grievor, who may be led to believe reasonably because of the inaction that the employer was no longer pursuing the allegations.” In that case, although the Board found that the Employer could have acted with more dispatch, it was “not a question of evaluating the employer’s efficiency in conducting an investigation”; instead, “[t]he test to be applied…is whether in the particular circumstances the grievor was reasonably led to conclude that her conduct had been forgiven or condoned or that the employer had somehow dropped the matter. …” See also, Re OPSEU (Grievor), supra at par. 167 (11 month investigation did not mislead the grievor to conclude that he was not going to be disciplined). [119] Further, in Sammy et al, supra, Vice-Chair Harris referenced the jurisprudence which found inherent prejudice to the Grievor occasioned by the delay in imposing discipline, and noted at the bottom of page 4 that: One factual aspect that differentiates the jurisprudence is whether or not the employee knew of the alleged misbehaviour. Generally speaking, where an employee does not know that the employer takes issue with how they have discharged their duties there is inherent prejudice occasioned by delay in levying discipline. The more the complaint relates to routine duties, the greater is the prejudice, and the general arbitral principle that opposes delay will act in the employee’s favour. - 19 - [120] The Union submitted that in this instance there was both delay in imposing discipline, and inherent prejudice, as the message sent by the Employer's delay was that there will be instances where the removal of goggles will not be a problem. [121] Accordingly, it was reasonable for the Grievor to believe his explanations regarding the incidents were accepted, and his conduct condoned. [122] Indeed, the Union pointed out that is exactly what happened regarding the Grievor’s removal of his goggles on January 15, 2021, while he was engaged in a physical altercation with an inmate. In that instance, the Grievor gave the Employer his explanation and the Employer accepted it. [123] As a result, the Grievor subsequently removed his goggles, believing this was condoned by the Employer. Analysis [124] As conceded by the Union, delay alone is not sufficient to result in a finding of prejudice. Rather, prejudice may be demonstrated by evidence of the fact or by inference due to inherent prejudice. In other words, the result of the delay must lead to a disadvantage of some sort that would not have arisen otherwise. In this instance, it is alleged the delay led to continued problematic conduct because of perceived condonation. [125] The Union is correct the Employer did, in fact, accept the Grievor’s explanation regarding the circumstances which led him to remove his goggles on January 15, 2021. [126] However, it is difficult to see how this might be interpreted as a blanket condonation to remove his goggles in other circumstances, which is what the Union is, in effect, suggesting. The facts at play in that instance, i.e., a physical struggle in an attempt to prevent an inmate from swallowing contraband, are dramatically different from any of the subsequent instances. [127] In any event, the second episode on which the Grievor removed his goggles occurred on January 26, 2021, four days prior to when the Grievor was directed to and submitting his Occurrence Report regarding the January 15, 2021 incident. [128] As a result, at the time of the January 26, 2021 incident, the only information the Grievor had regarding the Employer’s views in relation to wearing his goggles was that contained in the Directive. i.e., they were to be worn at all times. [129] Further, the Grievor’s January 30, 2021 Occurrence Report regarding the January 15, 2021 incident stated: “I do understand the importance of the - 20 - personal protective equipment (PPE) that is provided to staff when working and will do my best to follow the guidelines that are provided.” He wrote the same on his March 17, 2021 Occurrence Report, dealing with the March 8, 2021 occurrence. Yet, the next occurrence was March 21, 2021, a mere four days later. [130] While the Grievor testified he did not understand the requests for occurrence reports to be the Employer’s efforts to “remind” him of the Directive, but rather saw them as simply a request for an “explanation”, other than the January 15 incident, there were no explanations. Rather, there were just admissions of guilt. [131] Therefore, I find it cannot be said the Employer accepted the Grievor’s “explanations” or could be seen to have condoned the Grievor’s subsequent failures to comply with the Directive, which again varied dramatically from the facts of the June 15, 2021 incident. [132] In addition, the notes from the Allegation Meeting reflect that when the Grievor was asked if he felt his actions/behaviours on January 15, 26, March 8, and March 21, 2021 were consistent with the values and behaviours expected of an employee of the Elgin-Middlesex Detention Centre and the Ontario Public Service, he responded: No - These policies and procedures are in place for a reason. - I know better. My actions do not fall in line with the expectations. [133] The Grievor also indicated he was aware the goggles were for his protection and that if he were to get sick the jail would be down a staff person, and this would put stress on staff/inmates and management. [134] Finally, while the Union submitted that the presence of a supervisor who said nothing while the Grievor exited the van without his goggles was further condonation, there was no evidence suggesting this led the Grievor to believe his failure to wear his goggles was condoned. [135] As a result, I find there is simply no basis on which to find the Grievor was under the misapprehension that his conduct was condoned and could be repeated. Disposition [136] For all the reasons above, I am not persuaded the Grievor had any reason to believe removal of his goggles while in the Institution was in anyway condoned by the Employer. - 21 - WAS DISCIPLINE EXCESSIVE IN THE CIRCUMSTANCES: Inconsistent Application of Discipline: [137] Mr. Reeve testified the Grievor was a “great employee”, “very engaged”, with a clean discipline record. He indicated that had the Grievor failed to comply with the Directive only once, the resulting discipline would likely have been a letter of counsel. [138] Mr. Reeve had created a spreadsheet, referred to earlier, to keep track of the large number of occurrence reports coming in regarding failure to comply with the Directive. [139] The spreadsheet shows that for the incident of January 15, 2021, Mr. Reeve had initially contemplated a letter of counsel for the Grievor. This appeared under the heading of “Desired Outcome”. [140] For each of the subsequent occurrences of January 26 and March 8, 2021, Mr. Reeve contemplated a discipline of “one day suspension without pay”. [141] While the March 21, 2021 occurrence was not recorded, Mr. Reeve testified he was aware of it at the time he entered the prior three incidents on to the spreadsheet. There was no explanation regarding why then, the March 21, 2021 occurrence was not included on the spreadsheet – especially as the last entry was March 27, 2021. [142] On the spreadsheet, another employee (LF) also removed his safety eyewear during a use of force incident similar to the January 15, 2021 occurrence involving the Grievor, but no discipline was contemplated for him, whereas the discipline contemplated for the Grievor, at least at the time, was a letter of counsel. [143] Mr. Reeve indicated this was because the entry had been made on the spread sheet prior to the Grievor’s Allegation Meeting. While he conceded the same information was contained in the Grievor’s Occurrence Report for that incident, Mr. Reeve indicated that by then he was seeing a “pattern”, and it was only following the Allegation Meeting that he ultimately determined the removal of the goggles was justified in the January 15, 2021 incident. [144] Similarly, on the spreadsheet, another employee (AM) was also seen without safety eyewear during the same use of force incident as the Grievor on January 15, 2021, and was then also subsequently observed in the lunch room the same day as the Grievor, again without safety eyewear. However, the discipline contemplated by Mr. Reeve for both AM’s first and second occurrence, was a letter of counsel. - 22 - [145] Mr. Reeve again explained this apparent inconsistency as a result of his entries having been made prior to the Grievor’s Allegation Meeting, only following which he decided the January 15, 2021 episode was justified, and because he was already aware of the Grievor’s subsequent two incidents. [146] It is important to note that Mr. Reeve also indicated that neither letter of counsel was issued to AM. [147] By way of elaboration, Mr. Reeve explained the spreadsheet had been developed simply as a tool to keep track of the large number of occurrence reports related to the use of PPE that were coming in. [148] There was no further evidence regarding what, if any, discipline was levied against AM or for that matter, anyone else. Employer [149] The Employer argued there was no evidence of differential treatment. [150] Nor was there any evidence of any instances where failure to wear appropriate PPE was being ignored, as evidenced by the large number of occurrence reports requested. Union [151] Union Council referred to the spreadsheet created by Mr. Reeve, and pointed out that at most, the recommended response was a letter of counsel for a first occurrence. However, this was not the case regarding the Grievor’s first occurrence, which had become January 26, 2021 once the January 15, 2021 occurrence fell away. [152] In particular, the Union pointed to AM who, as noted above, had been observed without his goggles on the same two occasions as the Grievor, but for whom only a letter of counsel was contemplated for both. The Union maintained this demonstrated discipline was not being consistently metered out. [153] The Union submitted that as a result, even if I found the Grievor’s conduct was not condoned, the inconsistent discipline metered out should lead to a conclusion that the three-day suspension received by the Grievor was far in excess of what was appropriate. Progressive Discipline Employer [154] The Employer conceded the Grievor was a good employee but submitted that health and safety violations are important for the protection of employees, and - 23 - warrant a significant response. Accordingly, in this instance, three days was the appropriate floor. [155] The Employer submitted it would not be appropriate to use my discretion to alter the discipline, but rather urged me to find the Employer acted reasonably in addressing the Grievor’s conduct. Union [156] The Union pointed out that progressive discipline is important, as it is to be corrective, and provide an opportunity to employees to correct and improve their conduct. In order for that to occur communication must be timely. [157] In that regard, the Union referred to excerpts 10.9.1 Factors Affecting Penalty and 10.9.3 Progressive Discipline from Volume 1 Evidence and Procedure; Mitchnick and Etherington, as a useful reminder of principles of the purpose of progressive discipline: 10.9.1 Factors Affecting Penalty Over the years, arbitrators have identified a variety of factors - some related to the conduct of the employer, others to the conduct or circumstances of the grievor - which should be considered in deciding if the penalty imposed by the employer is just and reasonable. Some factors are of an aggravating nature, others mitigating. The case most frequently cited in this regard is Steel Equipment Co. Ltd. and U.S.W.A., Local 3257 (1964), 14 L.A.C. 356 (Reville), which enumerated ten key factors for consideration: (1) The previous good record of the grievor. (2) The long service of the grievor. (3) Whether or not the offence was an isolated incident in the employment history of the grievor. (4) … (5) Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated. (6) … (7) Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of condonation. (8) … - 24 - (9) … (10) … The other decision most frequently cited on the assessment of discipline is Wm. Scott & Co. Ltd. and Canadian Food & Allied Workers Union, Local P- 162, [1977] I Can. L.R.B.R. I (B.C.L.R.B.). … After referring to the Steel Equipment criteria, [Chair Paul] Weiler named what in his view are the most important factors in determining the appropriateness of the penalty: (1) How serious is the immediate offence which precipitated the discharge? (2) Was the grievor's conduct premeditated or repetitive, as opposed to a momentary aberration, … (3) Does the grievor have a record of long service with relatively little discipline? (4) Have there been earlier attempts at corrective discipline that were unsuccessful? (5) Does the penalty given the griever appear to be consistent with the employer's prior practice, or does it single out the grievor for arbitrary and harsh treatment? (6) … (7) Was the act impulsive or was it premeditated? (8) How serious was the harm done? Did the griever make a frank acknowledgment of misconduct? (9) … (10) What is the grievor’s past record? 10.9.3 Progressive Discipline Most arbitrators accept that implicit in the concept of just cause is a requirement to take a progressive or corrective approach to discipline before resorting to the ultimate penalty of discharge. The principle of progressive discipline is based, generally, on the notion that it would be unjust to discharge an employee if the employer has not first attempted to correct the misconduct with a lesser penalty or penalties. It is also premised on the belief that discipline will better achieve its corrective purpose if penalties are imposed on a progressive basis, from less severe - 25 - ones for the first offence to more severe ones for repeated and serious infractions. Adherence to progressive discipline should also avoid claims that the employee was surprised or lacked warning of the seriousness with which the employer regarded the misconduct. … … "This is the essence of progressive discipline - i.e. timely communication to the employee, expectations made known, and a warning or admonition that failure to improve will lead to future and/or more severe discipline". [emphasis added] [158] The Union maintained the Grievor was not afforded the opportunity to correct his conduct. [159] The Union rejected the notion that the requests for occurrence reports related to the first three occurrences acted as reminders. Rather, the Union submitted that to act as a reminder, employees must be clearly told they must improve and that negative consequences may result if they do not. [160] However, the Grievor was never told not to remove his goggles again, or there would be negative consequences. [161] Specifically, regarding the third incident, the Union pointed out that at the time, the Grievor did not understand he was to wear goggles in the van. However, the Grievor conceded it was his mistake rather than attempted to deflect blame. [162] Also, while the Grievor could not recall the fourth instance specifically, he testified the only reason he would not have had his goggles was because they were in his locker. [163] Furthermore, the Union pointed out the Grievor indicated this was not the first time he entered the Institution without goggles, and instead retrieved them from his locker, but conceded at the Allegation meeting that doing so was not appropriate. [164] The Union argued that as the Grievor was not afforded an opportunity to correct his behavior through progressive discipline, his penalty was excessive. [165] The Union further submitted that in all the circumstances, and based on the Grievor’s previous good record; his acceptance of responsibility in all instances; his length of service; the absence of premeditation; the inconsistent enforcement of the Directive; as well as the delay in enforcement resulting in condonation, a letter of counsel or a warning was appropriate, rather than any discipline. - 26 - [166] In the alternative, the Union submitted that at most, the Employer’s response should be a letter of counsel. Analysis: [167] The Employer has a duty pursuant to the Occupational Health and Safety Act, R.S.O. 1990, CHAPTER O.1, (“OHSA”) to take all precautions reasonable in the circumstances to protect employees. (See Canco Corp. supra) [168] Further, employees are required to wear the protective equipment mandated by their employer. Specifically, section 28 (1) of OHSA provides: 28 (1) A worker shall, (a) work in compliance with the provisions of this Act and the regulations; (b) use or wear the equipment, protective devices or clothing that the worker’s employer requires to be used or worn; … [169] As pointed out by the Employer, the events at issue took place in the context of a pandemic, before vaccinations were widely available. Many people were becoming very ill and/or died as a result of Covid infections. Others were experiencing long-term symptoms. [170] The one thing that was clear was that employees such as Correctional Officers, who had no option but to attend work, had to be protected by whatever means were available at the time. PPE was one of the only and therefore one of the most important methods by which employees could be protected. [171] Without adhering to PPE requirements, employees were vulnerable to infection, possibly resulting in severe illness, death or long-term health consequences. [172] Further, in addition to leaving the institution and his colleagues short-staffed, as acknowledged by the Grievor, by becoming infected he risked passing the infection on to them and their families, as well as to the inmates whose well-being was his responsibility. [173] I agree with the Employer that failure to adhere to the Directive created a health and safety risk that transcended the usual need for more modest progressive discipline. As in Canco Corp, supra, and OTIS Canada Inc., supra, I find suspension for such failures in the first instance would be entirely defensible – if that had been the route the Employer had chosen to take. However, it was not. [174] Rather, it appears the intent was to address most first occurrences for violation of the Directive with a letter of counsel, and subsequent violations with a one-day suspension per violation. This is consistent with Mr. Reeves’ evidence that had - 27 - there only been one violation by the Grievor, the result would likely have been a letter of counsel. [175] This approach is also evidenced in the spreadsheet created by Mr. Reeve, which showed the “Desired Outcome” for almost all first occurrences to be a letter of counsel. [176] This is an entirely reasonable approach. However, I have no evidence before me regarding whether this actually transpired, in relation to any of the other employees. [177] For example, as indicated above, Mr. Reeve testified that despite the “Desired Outcome” being listed as a letter of counsel for both of AM’s violations, this did not occur, as the spreadsheet was simply a tool to keep track of the large number of occurrence reports related to the failure to use PPE that were coming in. [178] In that regard I note that between January 21 and March 27, 2021 (the last entry), there were forty-three occurrence reports recorded. [179] In any event, no additional information was provided regarding AM’s situation, and I have no idea what, if any discipline AM received. [180] The one exception to the approach of starting with a letter of counsel for the first occurrence appears to be regarding DP, a Correctional Officer who denied being aware of the need to wear eye protection and refused to take responsibility for failing to comply with the Directive. In that instance the “Desired Outcome” was an allegation meeting and one day suspension without pay. Arguably, the facts in that instance are distinct from most of the other first occurrences. [181] I say it “appears” to be the only exception as it is clear the spreadsheet was a dynamic document that was not necessarily reflective of the final result i.e., the Grievor did not receive a letter of counsel for the January 15 occurrence, and AM did not receive two letters of counsel – despite those entries as the “Desired Outcome” in those instances. [182] It was also established that the spreadsheet was incomplete, at least to the extent it did not include the Grievor’s March 21, 2021 occurrence. [183] Accordingly, I am not confident it can be relied upon to give a complete or accurate picture regarding what discipline resulted from failure to comply with the Directive. [184] What I do have is the evidence before me of what occurred with the Grievor. [185] Let me begin by stating that I accept the Employer’s submission that this matter arose in the midst of a fast-moving and challenging dynamic. While the pandemic was not new, it was evolving, and presenting many on-going challenges. - 28 - [186] This is supported by the 43 listed occurrences between January 21 and March 27, 2021. We know there was at least one more, as the Grievor’s March 21, 2021 Occurrence Report was not included on the spreadsheet. [187] I also accept, that the intent was to initially issue a letter of counsel for the Grievor’s first violation of the policy. Mr. Reeve’s evidence in that regard is supported by what was believed, at the time, to be the Grievor’s first violation, on January 15, 2021. The “Desired Result” entered on the spreadsheet was letter of counsel. [188] Although Mr. Reeve subsequently determined the Grievor’s actions were justified during the January 15, 2021 incident, by the time of the Allegation Meeting, the Grievor had, as the Employer indicated, demonstrated a dangerous pattern of non-compliance. [189] As indicated above, it is difficult to accept that Occurrence Reports on which the Grievor simply conceded his failure to comply with the Directive could be conceived to be an “explanation” that was accepted and condoned by the Employer. [190] Rather, I find the repeated requests for occurrence reports ought to have acted as “reminders” to comply with the Directive. Unfortunately, this was not the case. The Grievor was simply not getting it. [191] In that regard, by the time the Employer held his Allegation Meeting, the Grievor’s repeated failure to comply with the Directive made his situation distinct from those who only violated the Directive once. I accept it called for a more formal response, with a message the Grievor would hear. [192] Accordingly, in light of the health and safety risk created by the Grievor’s continued failure to follow the Directive, despite the reminders to do so conveyed by the requests for occurrence reports, I do not find the three-day suspension excessive. [193] Rather, I find the Employer levying a discipline of one day suspension per occurrence to be reasonable in all the circumstances at play in this instance. DISPOSITION: [194] The Grievance is dismissed. Dated at Toronto this 18th day of December 2023. “Tatiana Wacyk” Tatiana Wacyk, Arbitrator