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HomeMy WebLinkAbout2021-1509.Murphy.24-01-23 Decision 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# 2021-1509 UNION# 2021-0411-0022 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Murphy) 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 January 4, 2024 - 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 Policy inter alia related to the use of personal protective equipment (“PPE”) during the Covid pandemic. [2] The Grievor is a correctional officer in the Ottawa Carlton Detention Center. He challenges his discipline of a one-day suspension without pay, imposed for failure on December 24, 2020 to: (1) wear Ministry mandated PPE, specifically his surgical/procedural mask, in accordance with Ministry direction, policies and procedures in the Admitting and Discharge area at the Ottawa Carlton Detention Centre. Further, while not wearing his Ministry mandated PPE in accordance with Ministry direction and policies, the Grievor came into close contact (within 6 feet) with other staff. [See Discipline Letter of March 2, 2021] [3] 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. [4] In this instance, given 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. [5] On behalf of the Employer, I heard the evidence of Christian Richer, currently Superintendent, and Deputy Superintendent, Administration at the Ottawa Carlton Detention Center, at the time at issue. [6] The Grievor, Treye Murphy, testified on behalf of the Union. FACTUAL CONTEXT: [7] The events at issue occurred during what I described at paragraph 7 in my decision in Ontario Public Service Employees Union (Miller-Foster) and The Crown in Right of Ontario (Ministry of the Solicitor General), GSB No. 2021- 0653, December 18, 2023, as the fast-moving Covid pandemic, and prior to the wide availability of prophylactic vaccines. - 3 - [8] Accordingly, in an effort to protect staff and inmates from infection, on June 30, 2020, Mr. Richer, in his capacity as Deputy Superintendent, Administration, sent a memorandum to all staff titled: "Operational Plan for Universal Source Control Using Surgical/Procedure Masks”. It included the following directives: Staff Masking All Ontario Correctional institutions will immediately implement source control (being worn to protect others) masking practices, requiring that all staff and visitors wear a surgical/procedure mask at all times while at work unless otherwise specified. … Principles and Practices Employees will be provided with one (1) surgical/procedural mask at the beginning of their shift and will immediately perform hand hygiene and don the mask. Masks are to be worn throughout the shift, at all times, and removed only during: • Breaks such as when eating and drinking • When there is a specified PPE requirement such as when working in an area requiring Additional Precautions, e.g. droplet/contact precautions. [sic] [emphasis added] [9] On November 14, 2020, Mr. Richer sent another memorandum to staff titled: “Surgical/Procedure Masks”. That memorandum included the following directives: Staff Masking All Ontario Correctional institutions will immediately implement source control masking practices (being worn to protect others), requiring that all staff and visitors wear a surgical/procedure mask at all times while at work, unless otherwise specified. Masking is not a substitute to other important infection prevention and control practices, including hand hygiene and physical distancing. The below information is not applicable to PPE use when additional precautions are in place; such as droplet/contact precautions (i.e. Intake or Isolation units), or when otherwise directed. Employees who fail to adhere to general masking principles may be subject to performance management and/or disciplinary action, as this is a critical piece in our fight against the spread of COVID-19. If employees - 4 - have any questions regarding masking procedures, they should speak with their Manager. [Emphasis added] Principles and Practices i. Employees will be provided with one (1) surgical/procedural mask at the beginning of their shift and will immediately perform hand hygiene and don the mask. ii. Masks must be worn throughout the shift at all times, including: • External inmate escorts, such as to hospital or transfers • Going for coffee runs and/or to buy food • In all common spaces and high-traffic areas such as elevators, kitchen areas, washrooms and lobbies. [1] Masks may be briefly removed for the following exceptions: • When actively eating and/or drinking during a break NOTE: Staff must maintain a physical distance of 6 feet from one another when their mask is removed to eat or drink, and the mask must promptly be put on again after they have finished eating or drinking. [emphasis in original] [10] Mr. Richer testified these policies were consistent with the “Infection Prevention and Control” (IPAC) policies of Public Health Ontario, and applicable across the Province. They were put in place to safeguard staff and inmates. [11] The only difference between the two policy directives regarding the issue at hand was the indication in the November 2020 directive that masks can be removed for eating and/or drinking during a break, but that a distance of 6 feet must be maintained from others when doing so. [12] Mr. Richer indicated the number of chairs in the lunchroom had been reduced for that purpose and plexiglass installed to create an additional barrier to protect workers when eating. Additional eating areas in the chapel and in the maximum security area had also been created. [13] Mr. Richer maintained that food was not to be consumed other than in those three areas. He also maintained there had been memos advising staff of this, and that they were briefed in that regard by their area managers. [14] The Grievor’s alleged failure to comply with the requirement to remain masked and avoid coming within 6 feet of other staff when not masked was observed on CCTV in the course of an improper hold investigation. - 5 - [While the Union did not challenge compliance with Appendix COR10 of the Collective Agreement in this instance, it was clear it was not waiving its entitlement to do so in other circumstances] [15] I say “alleged” failure because the Union maintained the Employer had failed to prove the Grievor had not complied with the requirement to remain masked and avoid coming into within 6 feet of other staff when not masked. [16] In that regard, the Employer relied on two still photographs, presumably taken from the CCTV recording. [17] The first photo showed the Grievor seated at a desk, with his mask off and around his chin. The Grievor conceded that the colleague seated to his left was likely less than 6 feet away. This was also the case regarding AW, another colleague walking past the Grievor. [18] There are five correctional officers in the picture. The Grievor indicated it was not unusual to have that many correctional officers, if not more, working in the A & D area. [19] The photo was taken approximately 8 hours into the Grievor’s 12 hour shift. [20] The Grievor testified he believes he was eating at the time, as he has something in his hands which appeared to be food. [21] The Grievor testified there are no scheduled breaks in the A & D area, due to the unpredictability of inmate movement in and out of the facility. Accordingly, the staff take turns relieving each other. [22] In the second photo, recorded 26 seconds after the first, the Grievor had turned to, and is facing his colleague seated to his left. That individual is masked, but the Grievor’s mask remains on his chin. [23] In that photo, AW is also again passing within what seems to be 6 feet of the Grievor, but this time is facing the camera. She too has her mask around her chin and appears to be eating. More will be said in that regard below. [24] The Grievor could not recall why his mask was still down in the second photo, but suggested it might have been because he had just finished eating. [25] Nor could the Grievor recall whether the colleague seated next to him was already there, or whether AW was already passing by when he removed his mask. - 6 - [26] The Grievor maintained he was not aware of any prohibition regarding eating while in the A & D area, but conceded he was aware the lunchroom had been modified to create a safer eating area, as well as additional break rooms established for that purpose. [27] The Grievor maintained that in any event, those working in the A & D area could not leave to eat and drink elsewhere because transfers could be received at any time. Consequently, the Grievor maintained A & D staff had to eat and drink “on the go”. [28] However, the Grievor conceded, in cross-examination, that as with other staff, those working in the A & D area would at times consolidated their breaks into one-hour blocks. They would then either stay or leave the Institution for their break. The Grievor pointed out this did not occur every day, as some days were too busy for them to do so. [29] The Grievor initially testified that on the day at issue, he had not yet had an opportunity to get a break outside the A & D area. However, in cross- examination, he indicated he did not recall if he or any of his colleagues had taken a break prior to the time captured by the photographs. [30] As indicated above, the photos also revealed that AW’s mask was also down around her chin, and she was also eating. [31] AW also received a one-day suspension. [32] However, in addition to having been found to have transgressed in the same manner as the grievor, i.e. by failing to wear her mask, there was an additional finding that AW had, on the same date, “failed to remain a physical distance of six feet from other staff and/or inmates when … eating/drinking and not wearing … Ministry mandated PPE.. . [33] The Grievor maintained that in addition to AW, he had observed other correctional officers, including a sergeant, eating in the A & D area. However, no additional details in that regard were provided. [34] I also should note that for unexplained reasons, neither the two photographs nor the video were shown to the Grievor during his allegation meeting. Rather, he was simply given the date and location where he was observed without his mask. [35] The Grievor conceded in cross-examination, that during the allegation meeting regarding this issue, he indicated he did not recall the incident, but “at the time” he did not think, he had done anything wrong in terms of the policy directive. - 7 - [36] The Grievor also conceded that at the time at issue, Covid outbreaks were occurring within the Institution. He further conceded this was a “big deal”, particularly within the A & D Area, and efforts were being made to stop the outbreaks. ARGUMENT: Employer [37] The Employer emphasized that the events at issue took place in the context of a pandemic, before vaccinations were widely available. Consequently, many people were becoming very ill and/or died as a result of covid infections. Others were experiencing long-term symptoms. [38] In order to protect employees and inmates from infection, the June 30, 2020 policy directive was brought in, prohibiting anyone from being in the Institution without a mask. The exception regarding eating and drinking was further clarified in the November 14, 2020 policy directive, which as set out above, stated that masks may be briefly removed when actively eating and/or drinking during a break, but that a physical distance of 6 feet from others had to be maintained when a mask was removed for that purpose. Further, the policy directive noted that the mask was to be promptly put on again once the eating or drinking is finished. [39] The Employer pointed out the need for staff to remain 6 feet apart when unmasked for the purpose of eating or drinking was also reflected in the physical changes made to the lunchroom, in terms of the reduction in chairs, and addition of plexiglass, and the additional space reconfigured as lunch/break rooms in the chapel and maximum security area. [40] In arguing the one-day suspension was appropriate, given the serious safety risk at issue, the Employer relied on my decision in Miller-Foster, supra. In that case, I held that a one-day suspension was appropriate for each failure to comply with the requirement to wear eye protection to avoid covid infection. The Employer pointed out, however, that rather than putting oneself at risk by failing to wear the mandated eye-protection, in this instance, the Grievor’s failure to wear a mask when within 6 feet of others, put not only the Grievor at risk, but also put his colleagues, in-mates, and the public at risk as well. [41] In anticipation of the Union arguing that it was unreasonable for the Grievor to receive the same discipline as AW, who was cited for two violations of the policy directive, as the Grievor was cited for only one, the Employer again relied on my decision in Miller-Foster, supra, regarding the importance of complying with health and safety requirements. - 8 - [42] Further, the Employer pointed out that AW’s letter of discipline indicated she expressed remorse regarding her non-compliance on both counts. On the other hand, the Employer submitted the Grievor still maintained he did nothing wrong. [43] The Employer also maintained the Grievor’s testimony that the A & D area usually has five correctional officers on shift, and at times even more, essentially meant that the Grievor would have to leave the tight quarters of the A & D area to have a meal or drink break in order to avoid coming within 6 feet of any of the other correctional officers. [44] However, in this instance, not only did the Grievor consume food within 6 feet of his colleagues, but approximately 30 seconds later, when he appears finished his meal, he turns to face his co-worker while still unmasked, rather than quickly raising his mask as required by the policy directive. [45] The Employer submitted that given the seriousness of the violation and accompanying risk, a one-day suspension is reasonable for someone who doesn't show remorse, and needs to be sent a message that the policy directive must be take it seriously. [46] In arguing strict compliance to the policy directive was appropriate, in addition to my decision in Miller-Foster, supra, the Employer relied on the decision in 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 to which I referred in my decision in Miller-Foster as follows: [104] In its analysis, the Board [in 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)] 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: 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 - 9 - 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. (emphasis added) 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] [emphasis added] 6. Safety rules have to build in the concept of the duty to accommodate. These rules have to - 10 - ensure that, while they may be stringent and demanding, they also incorporate concepts of equality that eliminate all forms of discrimination. Union [47] In the first instance, the Union submitted the Employer had failed to meet its burden of proof to demonstrate the Grievor’s conduct warrants discipline. [48] Rather, the Union submitted the two photographs simply showed the Grievor eating without his mask, which he is entitled to do. It pointed out that neither of the policy directives relied on by the Employer suggested otherwise. [49] Nor do the photographs indicate if anyone was within 6 feet of the Grievor when he first removed his mask to eat, or when his colleagues moved into that range. Nor is there any evidence regarding when the Grievor put his mask back on, once he realized someone was within the prohibited 6 foot range. [50] The Union also challenged the Employer’s submission that given the small size of the area and the number of correctional officers on shift, coming within 6 feet of each other was unavoidable. Rather, the Union submitted that if someone were to stand in the corner of the area, s/he could maintain a distance of more than 6 feet. [51] In the alternative, if I were to find that discipline was warranted in the circumstances, the Union submitted a one-day suspension was excessive. [52] In that regard, the Union also disputes the Grievor denied he had done anything wrong when he testified. Rather, the Union submitted that the Grievor had been referring to his position at the allegation meeting, which was that he did not remember the events of the specific date referred to, which was understandable, as the meeting occurred just a few days less than a month after the day in question, and he was not shown the photographs or the video. [53] Rather, the Union submits the Grievor’s statement in the allegation meeting that he did not remember, was really a request for more information, and that it was not reasonable to expect him to show remorse in a vacuum. [54] The Union further pointed out that others also ate in the A & D area, including a sergeant, however stopped short of arguing that the conduct was condoned. In any event, the discipline was not for eating in the A & D area. It was for doing so while in close proximity to others, without his mask. - 11 - [55] Further, the Union argued that, unlike AW, who received a one-day suspension for two incidents on the same day, and Mr. Miller-Foster whose discipline of one day of suspension per transgression was upheld because I had found he had, in effect, been repeatedly reminded to wear his goggles when seen without them, the Grievor in this instance had only one transgression. Nor had the Grievor in this instance received any warning. In addition, he had a clear record. [56] The Union also submitted that AW’s violation of failing to wear her mask when she came in close contact (within 6 feet) with other staff was more serious than the Grievor’s alleged violation, as AW was not eating at the time. Accordingly, the Union submitted if AW’s one day suspension is appropriate, then the Grievor in this instance should receive less. Rather, the Union submitted that in light of the absence of any prior warning, the appropriate Employer response ought to have been a warning. [57] In addition to my decision in Miller-Foster, supra, the Union relied on excerpts 10.9.1 Factors Affecting Penalty and 10.9.3 Progressive Discipline from Volume 1 Evidence and Procedure; Leading Cases on Labour Arbitration, Mitchnick and Etherington as follows: 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) … - 12 - (7) Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of condonation. (8) … (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? - 13 - 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 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] ANALYSIS: [58] Let me begin by addressing the Union’s submission that the Employer has failed to prove that the Grievor deliberately removed his mask while within the prohibited 6 feet of others, as they may have brought themselves into that range once he had removed the mask. [59] The Union is correct that the onus is on the Employer to prove its case. However, I find the photos create a prima facie case which must then be answered by the Union. In that regard, there was no evidence or even suggestion from the Grievor that the photos were not representative of what had occurred, and what the Employer had concluded. i.e. that the Grievor removed his mask while within the prohibited 6 feet of others, and remained with it off for some time. [60] Further, given the small size of the space at issue, and the fact that of the five employees on shift at the time at issue, three were on the move, I agree with the Employer that it would be more likely than not that if the Grievor removed his mask, someone would move within a 6 foot range as they moved about conducting their duties. Even if that were possible to avoid by standing in a corner, as suggested by Union counsel, that is not where the Grievor was. Rather, he was sitting at his desk, within 6 feet of his colleagues. - 14 - [61] Accordingly, I find the Grievor failed to wear his Ministry mandated PPE in accordance with Ministry direction and policies, in that he came into close contact (within 6 feet) with other staff while not wearing his mask. [62] As we are reminded by Counsel for the Employer, the events at issue took place in the context of a pandemic, before vaccinations were widely available. Consequently, many people were becoming very ill and/or died as a result of Covid infections. Others were experiencing long-term symptoms. [63] It is important those critical facts are not lost in the annals of time. [64] Not to put too fine a point on it, failure to wear a mask could result in severe illness or death, not only on the part of the individual failing to comply with the policy directive, but also those infected by that individual. While wearing masks was not a guarantee of protection, it was one of the few precautions available at the time. Accordingly, adherence to all available precautions was critical. As stated in the November 14, 2020 policy directive: … Employees who fail to adhere to general masking principles may be subject to performance management and/or disciplinary action, as this is a critical piece in our fight against the spread of COVID-19. [65] While many understood this and conducted themselves accordingly, others did not. Their failure put others and themselves at significant risk. [66] As I noted in my analysis in Miller-Foster, 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 UFCW, Local 175 and Highbury Canco Corp. (Failure to Accommodate), 351 L.A.C. (4th). [67] Accordingly, Employers are required to protect employees such as correctional officers, who had no option but to attend work, by whatever reasonable means were available at the time. PPE was one of the few, and therefore one of the most important methods by which employees could be protected. [68] Further, employees are legally 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; - 15 - (b) use or wear the equipment, protective devices or clothing that the worker’s employer requires to be used or worn; … [69] In my decision in Miller-Foster, I noted that without adhering to PPE requirements, employees were vulnerable to infection, possibly resulting in severe illness, death or long-term health consequences. [70] I also noted that by becoming infected themselves, employees then risked infecting their colleagues, the inmates, and their families. This is where the wearing of masks was particularly critical. Again, as pointed out by the Employer, they not only protect the wearer, but they were one of the few methods available to prevent the spread of disease to others. [71] Yet, despite the acknowledgement of the Grievor that at the time at issue, there were outbreaks in the Institution; that this was a “Big Deal”, particularly within the A & D Area; and, that efforts were being made to stop the outbreaks, the Grievor decided to ignore the requirement to protect himself and his colleagues, and removed his mask, apparently for long enough to consume a meal, while at least for some of that time, he was within the prohibited 6 feet of others. He then remained with it off for an undetermined period after his meal. [72] Given the seriousness of the risk, I am not of the view that failure to adhere to the policy directive in this instance calls for a more modest form of progressive discipline. [73] Further, I find that not only did the Grievor put himself and his colleagues at serious risk by failing to maintain a distance of 6 feet when his mask was off, but am I not persuaded the Grievor has assumed responsibility for breaching the policy directive. [74] Rather, much of his testimony in-chief appeared to suggest that, given the workload, and uncertain scheduling of transfers, he had few, if any other options, but to breach the policy directive in order to eat. In other words, he appeared to suggest he had a valid excuse. [75] It was only in cross-examination that it became apparent that it was not unusual for A & D staff to combine their allotted break times so they could leave the area for an hour at a time. However, the Grievor could not recall what had occurred regarding breaks on the day at issue. [76] The fact the Grievor remembers little about that day, suggests nothing unusual occurred that justified the removal of the mask in circumstances that contravened the policy directive. - 16 - [77] Accordingly, I find the Grievor failed to demonstrated remorse for his actions, but rather tried to justify them, when there was no justification to be had. [78] In determining whether the discipline of one day is excessive, I have considered those referenced by Counsel for the Union. However, the consideration I find most appropriate in these circumstances was articulated by Arbitrator Lynk in Cargill supra, above at paragraph 46: 5. … 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] [79] In this instance, I find the Grievor’s failure to take responsibility for his violation of the policy directive or to show remorse, distinguishes his circumstance from that of AW, and calls for a level of discipline which will convey to him the seriousness of his actions. [80] Accordingly, as I am not persuaded the Grievor yet appreciates the seriousness of his transgression, I find no reason to interfere with his one-day suspension for failing to comply with the policy directive. DISPOSITION: [81] For all the reasons above, the Grievance is dismissed. Dated at Toronto, Ontario this 23rd day of January, 2024. “Tatiana Wacyk” Tatiana Wacyk, Arbitrator