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HomeMy WebLinkAbout2022-9776.Beckford.24-05-03 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# 2022-9776 UNION# 2022-0135-0034 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Beckford) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Tatiana Wacyk Arbitrator FOR THE UNION Robert Healey Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Regina Wong Treasury Board Secretariat Legal Services Branch Counsel HEARING April 11, 2024 -2 - Decision [1] In the matter before me, the Grievor’s employment was terminated for the alleged use of excessive and unnecessary force on an inmate, which was inconsistent to the threat posed. Specifically, it was alleged the Grievor delivered no less than 10 closed-fisted strikes to the head and facial area of the inmate. The date of the occurrence was October 18, 2022. [2] This decision deals with an objection by the Employer to the admission of a portion of the disciplinary record of an employee other than the Grievor (“employee E”). [3] Specifically, the Union wishes to rely on the Letter of Discipline, the Inmate Incident Report, and the related Occurrence Reports as evidence in support of its argument that the Griever’s dismissal in the Grievance before me was excessive, and inconsistent/discriminatory. [4] Employee E received a 7-day suspension for instigating and engaging in inappropriate behaviour with an inmate without reason, escalating the situation, and using unnecessary force and assaulting the inmate when, on December 10, 2019, he entered the inmate’s cell and delivered a knee strike to the inmate’s upper thigh and/or groin area. EMPLOYER: [5] The Employer objects to the admission of the documents. It points out the onus to prove their relevance rests with the party seeking to introduce the documents, (see: National Steel Car Ltd. (1998), 76 L.A.C. (4th) 176 (Craven); and, Humber College Institute of Technology and Advanced Learning and OPSEU, Local 562 (Reynolds), Re, 2022 CarswellOnt 1138, [2022] O.L.A.A. No. 44, 151 C.L.A.S. 65). -3 - [6] The Employer submits the disciplinary record of an employee whose use of force was markedly distinct is irrelevant, as it does not assist in resolving any of the issues in the instant case, and is “of so little or no probative value that it confuses rather than aids the decision, and wastes the arbitrator’s time”. (see Gorsky et al., Evidence and Procedure in Canadian Labour Arbitration at 11:8 Relevance). [7] The Employer relied on the following comments of Arbitrator Surdykowski in Lakehead University and LUFA (Bernard) Re, 2014 CarswellOnt 5359, 118 C.L.A.S. 213 to caution against simply letting the documents in and weighing them later: 17 The test for admissibility of evidence in a grievance arbitration proceeding is “arguable relevance”. Although low, this threshold is real and must be meaningful. As a matter of principle, I do not subscribe to any arbitral school of thought which posits that all evidence offered should be admitted subject to an assessment of weight at the end of the proceeding. In my view, such an approach cedes control of the process to the parties, ignores the arbitrator’s obligation to manage and control the proceeding, and tends to distract and unduly extend a proceeding for no legitimate purpose. That said, I recognize that as a practical matter it may be appropriate to take the “admit now and weigh later” approach in circumstances where the disputed evidence is confined and relatively short, and dealing with an objection fully on the merits would take an inordinately long time and serve only to lengthen the hearing. But that is not this case. 18 I am mindful that s. 48(12)(f) of the Labour Relations Act, 1995 gives an arbitrator the discretion to admit evidence not admissible in a Court proceeding. However, this cannot be taken to justify the sort of evidentiary free-for-all which can result when an “admit now and weigh later” approach is adopted. It is not appropriate to ignore the tried and true rules of evidence which have been developed for good natural justice and fairness reasons when these apply equally well to grievance arbitration proceedings. Keeping in mind that evidence which is not arguably relevant cannot possibly be probative, evidence which is clearly prohibited by the collective agreement, by statute, or by an appropriate established rule of evidence (such as evidence of matters within the ambit of solicitor- client privilege, or settlement privilege, the “rule” in Browne v. Dunn [(1893), 6 R. 67 (U.K. H.L.)], for example); or which is not apparently possibly probative of any position legitimately taken in the proceeding, cannot be admitted. Although I concede that it is better to have evidence which is not needed than it is to need and no have it, in the absence of a clear collective agreement or other prohibition, the question I ask myself (and often ask counsel) is: how can the evidence in issue assist me? -4 - [8] Accordingly, the Employer submitted the question best asked in determining the relevance/admissibility of evidence is “how can the evidence in issue assist me”. It maintained that nothing in the proffered documents would support a finding that the discipline in this instance was inappropriate or inconsistent. (see: Ontario Public Service Employees Union (Jackson) v Ontario (Children, Community and Social Services), 2021 CanLII 37030 (ON GSB) at paragraph 37) [9] While the Union maintains the discipline record for employee E will assist in determining whether the Grievor’s discipline is inconsistent and therefore unfair, the Employer submitted that it is not of assistance in that regard. Rather, the Employer maintained that the principle at issue is that similar cases must receive similar treatment, and in this instance the cases are not similar. In that regard, the Employer relied on Brown and Beatty, Canadian Labour Arbitration (Discrimination 7:4414): § 7:70. Discrimination The principle that similar cases must receive similar treatment is a universal precept of fairness and justice that has always been recognized in arbitration law. The differential treatment of two employees who commit the same offence and are alike in all relevant respects, cannot be defended on any definition of just cause. … … The principle of equal treatment is typically violated where it is shown either that the material facts of an employee’s case substantially conform to the circumstances of others who were treated less severely or that the employee’s behaviour was less culpable than someone else who received the same or a milder sanction. Where it is found that the penalty imposed on a person was based on materially different circumstances than in other cases, an allegation of discriminatory treatment will fail. [Footnotes omitted] [emphasis added] -5 - [10] Accordingly, the Employer maintained the two occurrences are too dissimilar to make a meaningful comparison. Specifically, a knee strike to the upper thigh and/or groin area, cannot be compared to more than 10 closed-fist strikes to the head and facial area of the inmate. [11] In that regard, the Employer relied on Vice-Chair Abramsky’s decision in Ontario Public Service Employees Union (Gillis et al.) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) (May 16, 2008), GSB# 2003-1520 et. al., 2008 CanLII 26249 (ON GSB). In that instance, which also dealt with discharges related to excessive use of force, the Union had also argued, that the Employer has not always discharged the officer in such cases, and that the key principle of labour relations is that there must be consistency or non-discrimination in the application of discipline. [12] However, Vice-Chair Abramsky stated also at page 56: Each case of this nature must be evaluated on its own specific facts. I agree, however, with Vice-Chair Herlich when the same argument was made in OPSEU (Horan), supra at p. 21, where he stated: At the risk of oversimplification, however, I do not accept that this principle [of discrimination] dictates that because the Crown in Right of Ontario qua employer, some 15 years ago, failed to discharge an employee who had engaged in an improper use of force and committed an (albeit relatively marginal type of) assault on a resident or inmate, that the employer is thereby forever precluded from imposing such a penalty for that kind of offence…. In any event, the principle of discrimination and the exercise of discretion to modify a penalty must both be applied and assessed in the particular circumstances of each given case. [13] In Interprovincial Cooperative Ltd and CEP Local 341 (Grant), Re, 2013CarswellMan 18, 229 L.A.C. (4th) 404, Arbitrator A. Blair Graham dealt with the union’s challenge of a three-day suspension for the Grievor’s “errors or omissions” and what the employer characterized as a “Major Rule Violation”, -6 - pursuant to the Employer’s Discipline Policy, and emphasizing the very dangerous situation brought about by the Grievor’s conduct. [14] In that case, while the union conceded discipline was warranted, it argued, inter alia, that the discipline was inconsistent with, and represented a major departure from the manner in which employees had been disciplined in the past. It maintained the three-day suspension ought to be replaced by a letter of reprimand. [15] In his analysis, at paragraph 45 of his decision, the Arbitrator observed there was “considerable support” for the employer’s position that an argument respecting differential treatment/discrimination cannot succeed in cases where there are material differences between cases involving the same employer and workplace, and that employers are entitled to make legitimate distinctions between different factual circumstances. [16] In that regard, Arbitrator Blair also referred to the highlighted portion of the excerpt regarding discrimination from Brown and Beatty set out above in paragraph 9. [17] In that instance, Arbitrator Blair did review letters outlining the discipline imposed by the employer for Major Rule Violations and Minor Rule Violations over the last several years. However, at paragraph 52, he indicated he did not find them particularly helpful as guides to the appropriate discipline in the case before him, as the events were markedly different. [18] In Re Canada Post Corporation v. Teplitsky and C.U.P.W. (1986), 17 O.A.C. 290 (Div. Ct.), the Divisional Court quashed the decision of Arbitrator Teplitsky, who had reduced the suspensions imposed on 53 grievors for engaging in an illegal strike, to a written warning. The Court gave the following reason for quashing the award: -7 - 22 Before the arbitrator, the Union saw fit to rely in an admission that in at lease [sic] five other cases of illegal work stoppage in Ontario, the employees involved had been given a written warning only. That limited admission of facts would not, in my view, constitute evidence to support a finding of discrimination. The admission did not establish the cause of the illegal strike, the duration of the strike, or the degree of culpability of the employees involved. The arbitrator had absolutely nothing, no evidence from which he could make a finding that the material circumstances of the grievors’ case substantially conformed to the circumstances of the other employees who were alleged to have been treated more leniently. [emphasis added] [19] Similarly, in AGT Ltd. and IBEW, Local 348 (1996), 52 LAC (4th) 415, Arbitrator Sims stated: 83. The onus of proving discriminatory treatment by the employer rests with the union. An arbitration board making such a finding needs evidence to show that the material circumstances in the cases involved were similar in substance: see Re Canada Post Corp. v. Teplitsky and C.U.P.W. (1986), 17 O.A.C. 290 (Div. Ct.). [20] In Nestle Canada Inc. v. CAW-Canada, Local 252 (2011), 210 L.A.C. (4th) 397 (Ont. Arb.) Arbitrator Stout issued the following caution: I acknowledge the principle argued by the Union that similar cases must be treated in a like fashion. In my view, one must be careful when applying this principle. The principle may apply in circumstances where two employees did exactly the same thing and all other relevant factors considered are equal, see Re Ontario Produce Company and Teamsters Union, Local 419 supra, at page 191. However, there is no such evidence in this matter. The only evidence of similar conduct involved a situation in 1998, [the events at issue took place in 2010] where a male employee admittedly sexually harassed one female employee. That is not the same as the facts before me. As noted above, the grievor in this case sexually harassed two women in an aggressive manner. He has denied the allegations and shown no remorse or insight into his conduct. I find that the Company has not acted in a discriminatory manner. Rather, the Company applied the proper principles and acted in accordance with its’ statutory duty to provide a safe workplace for women. [21] In New Flyer Industries Canada ULC and CAW, Local 3003 (Alfonso), Re, 2013 CarswellMan 188, 114 C.L.A.S. 193 the Employer imposed 20 “demerit points” on the grievor for essentially preparing to leave his workstation before the buzzer -8 - indicating the end of the shift. In that regard, the grievor was observed wearing his outdoor jacket, his workstation had been cleared, and his lunch pail was on the table of the workstation. The Union maintained the penalty was excessive. In that regard they submitted that two other employees had engaged in the same type of conduct, with one receiving a lesser penalty, in the form of a written reprimand, and the other received no penalty at all. [22] However, two other employees also received 20 demerit points, as had the grievor. Of the three employees who received 20 demerit points, the grievor was the only one who pursued his grievance. [23] The Employer’s evidence regarding the employee who received no penalty was that the employer representative had observed him speaking to the grievor at the time at issue, but the representative could not recall his identity. The employer explained that the employee whose discipline was just a written reprimand was less problematic, as he did not yet have his jacket on (he was beginning to put it on), he had “carry-over” work ready for the next shift laid out at his work station, he complied with the direction to not put his jacket on, and by the time he was observed, it was very close to the end of shift buzzer. [24] In that instance, Arbitrator A. Blair Graham undertook the following analysis: 31 I am sensitive to the Union’s arguments that when dealing with the issue of discrimination/differential treatment, it is important to not draw too “fine a line” in distinguishing between the circumstances of employees who have essentially done the same thing (in this case being ready to leave their workstations before 3:25 p.m.), because such “fine lines” will permit too much latitude for favoritism or subjective assessments on the part of supervisors. However, I am equally mindful of the danger of discipline being imposed by supervisors in a way that is too rigid and authoritarian and of depriving supervisors of the flexibility to make decisions based on their knowledge of the workplace, and their assessment of differences in the factual circumstances of different employees. 32 There were differences between the Grievor’s circumstances and K.C.’s circumstances on November 8, 2011. Discriminatory or differential treatment only arises in cases in which the background circumstances relating to two or more employees are the same or are substantially similar and yet there are differences in the discipline imposed. I acknowledge that the -9 - differences between the Grievor’s circumstances and K.C.’s circumstances were quite minor. The Union’s concerns about drawing “excessively fine lines” and the risk of encouraging arbitrary and biased decisions by supervisors are legitimate. 33 However, the fact that Mr. Borgfjord imposed 20 demerit points on two other employees as well as the other Grievor convinces me that Mr. Borgfjord was using his supervisory authority to address a legitimate workplace problem" (i.e. employees stopping work early), and that the Grievor was not being subjected to discriminatory treatment relative to other employees in similar circumstances. I am also satisfied that Mr. Borgfjord’s decision to give a written warning to K.C. was a legitimate exercise of his supervisory authority based on his assessment of the differences between the circumstances relating to K.C. and the circumstances relating to the Grievor and the circumstances of two other employees (E.B. and A.R.), all three of whom received 20 demerit points. 34 Therefore, I have concluded that the Company’s imposition of 20 demerit points on the Grievor was not discriminatory relative to the Company’s issuance of a written warning to K.C.. [emphasis added] [25] Similarly, the Employer relied on the decision in Chatham-Kent (Municipality) v CAW-Canada Local 127, 2007 CarswellOnt 5078, [2007] O.L.A.A. No. 135, 159 L.A.C. (4th) 321. In that instance, while one element of disciplined conduct was the same, i.e. the breaching of residents’ confidential personal information, there were distinctions which explained the different disciplinary result, and were accepted by the Arbitrator as legitimate differences, leading to difference disciplinary results. [26] In Tenaris Algoma Tubes Inc. and USWA Local 9548 (D), 2014 CarswellOnt 8009, 244 L.A.C. (4th) 63, a grievor who had been discharged for posting sexually harassing and threatening comments on his Facebook page about a co-worker who was readily identifiable, alleged his discharge was excessive and discriminatory. Arbitrator Trachuk rejected both arguments. Regarding the alleged “discriminatory” treatment she stated: 49 The union also argues that the penalty imposed on the grievor is discriminatory. It sought to call evidence about a situation in which, it claims, an employee threatened his spouse who also worked for the company. The company separated them but did not -10 - terminate anyone. I ruled, orally, that those facts were not sufficiently similar to permit me to draw a comparison with the grievor's situation. [emphasis added] [27] The Employer also relied on my decision in Ontario Public Service Employees Union (Calder) v Ontario (Community Safety and Correctional Services), 2017 CanLII 77176 (ON GSB), in which, at paragraph 18, I addressed the difficulty of addressing evidence that is “unreasonably old” as follows: [18] I would simply add that the principle of audi alteram partem includes consideration of the difficulty of responding parties to address evidence that is unreasonably old. In such instances, when the resulting prejudice outweighs the relevance, it may be appropriate to exclude that evidence, although the evidence may be relevant. This consideration has been and remains a consideration in the Board’s application of the three-year rule. [28] In summary, the Employer emphasized that the culpable events committed by employee E and the Griever in this instance, were distinct in their details, and not sufficiently similar to make out a case of differential discipline. [29] While the Union appeared to be of the view that a single knee strike was a more serious violation of the Use of Force Policy, it was the Employer’s position that a series of close-fisted blows to the head and face carried with them significantly more risk of injury. [30] The Employer also pointed out that not all employees who engage in an excessive use of force are terminated, and some, as was the case with the employee E, are suspended. However, each case must be assessed on its own facts. [31] The Employer also pointed out that employee E’s discipline record, upon which the Union wished to rely, did not contain a lot of details, and the discipline was not grieved. Nor was the decision-maker in that instance involved in the instant grievance. Further, any mitigating factors which may have been considered may not have been included in the limited records the Union wishes to introduce. -11 - [32] The Employer submitted that if the evidence were allowed in, the Employer would have to explain the difference in the disciplines. As a result, the Employer would have to look back over the passage of time between the earlier incident of excessive force, which occurred on December 10, 2019 and the incident before me, which occurred on September 14, 2022 to find evidence to bring forward. This may also involve calling the employee E, who chose not to grieve. [33] Finally, the Employer argued that letting in evidence regarding other instances, when they are so dissimilar, can open the flood gates, and makes no labour relations sense. [34] In any event, the Employer reserved the right to make full answer to the Union’s assertion of inconsistent discipline, and to call all the necessary witnesses to explain how culpability in unreasonable use of force cases is assessed. UNION: [35] The Union maintains the documents regarding the discipline of employee E are arguably relevant, and that is the only issue to be decided at this juncture. It submitted the appropriate weight to be given to the documents, can be determined once all the evidence has been heard. [36] Counsel for the Union pointed out this is what occurred in most of the cases relied on by the Employer, i.e. the evidence was admitted, and a determination regarding the weight to give it was reserved until the end. [37] Counsel for the Union also submitted that one of the Occurrence Reports regarding the incident for which employee E was disciplined, indicates that Mr. Janisse, Deputy Superintendent, who terminated the Grievor in the instance case, and was a Staff Sergeant at the time, was present at the incident involving employee E. [38] The Union pointed out, and it was not disputed, that in determining whether discipline ought to be varied, arbitrators should take into consideration evidence -12 - of inconsistent, and thus discriminatory treatment. (see U.S.W.A., Local 3257 v. Steel Equipment Co., 1964 CarswellOnt 498; and, William Scott & Co. v. C.F.A.W., Local P-162, 1976 CarswellBC 518. [39] The Union submitted that in order to consider whether there is evidence of inconsistent treatment, the facts do not have to be identical. Rather the material facts must only “substantially conform” to the circumstances of others who were treated differently. In that regard, the Union relied on the following portion of the quote from Brown and Beatty, Canadian Labour Arbitration (Discrimination 7:4414) set out at paragraph 9 above: The principle of equal treatment is typically violated where it is shown either that the material facts of an employee’s case substantially conform to the circumstances of others who were treated less severely or that the employee’s behaviour was less culpable than someone else who received the same or a milder sanction. … [40] Counsel for the Union maintained that in light of the Employer’s extensive and well-developed policy regarding the use of force, the two instances can be found to substantially conform in terms of circumstances, so as to assess if the Employer has acted fairly and consistently in metering out discipline when that policy is breached. [41] Counsel also referred to the decision in Winpak Portion Packaging Ltd. v. U.S.W.A., Local 267G, 2004 CarswellOnt 5700 2004 CarswellOnt 5700, [2004] O.L.A.A. No. 950, 131 L.A.C. (4th) 78, 78 C.L.A.S. 132. In that instance, two employees had engaged in a fighting incident for which both were found to be responsible. However, the grievor in that instance was dismissed, whereas the other protagonist received a 7-day suspension. The basis for the distinction was a prior misconduct on the grievor’s employment record of 29 years (there was no sunset clause in the collective agreement) whereas the other protagonist had an unblemished employment record of 9 years. -13 - [42] On the evidence regarding the incident, Arbitrator Stewart found, at paragraph 9, that the other employee, rather than the Grievor, was the protagonist. At paragraph 11, Arbitrator Stewart stated in part: There are many factors that come into play in determining a fair and just penalty, as is noted in the many awards I was referred to. The precise nature of the incident is an important factor and here, while Mr. Pacis engaged in inappropriate conduct, he was not the aggressor. Progressive discipline is another factor and while Mr. Pacis did have a previous suspension, the penalty must also be relatively fair. While I agree that Mr. Pacis' disciplinary record distinguishes his situation from that of Mr. Amanakwah, proportionality is one of the hallmarks of fairness. A discharge for Mr. Pacis in the face of a suspension for Mr. Amanakwah in a situation where Mr. Amanakwah bore greater fault is troubling. … He is an employee of extremely long service and Mr. Shepherd acknowledged on cross-examination that Mr. Pacis is a good and conscientious employee. [43] As a result, Arbitrator Stewart reduced the grievor’s discipline from a termination to a suspension of 10 working days. [44] Accordingly, Counsel for the Union pointed out that proportionality is one of the hallmarks of fairness when determining discipline, and that consideration will also be given to evidence of a good and conscientious employee. [45] In Cariboo Pulp and Paper Co. and Unifor, Local 1115 (Klapatiuk), 2020 CarswellBC 2282 2020 CarswellBC 2282, 145 C.L.A.S. 217, 145 C.L.A.S. 218, 318 L.A.C. (4th) 419 Arbitrator Arne Peltz compared the relative culpability of two employees involved in the same incident of disrespectful, bullying and harassing behaviour, and for which they both received a 3.5 day suspension. [46] At paragraph 81, the Arbitrator found the grievor’s discipline of a 3.5 day suspension was excessive given his employment record and all the facts of the incident. In addition, the Arbitrator noted the employer had failed to distinguish the relative culpability of the grievor and the other protagonist, who the Arbitrator found had displayed anger, aggression and profanity while the grievor did not. -14 - [47] In UFCW, Local 401 and Sobeys West Inc. (Thurston), Re, 2018 CarswellAlta 3279, 2018 CarswellAlta 3279, [2019] A.W.L.D. 1136, [2019] A.W.L.D. 1137, 138 C.L.A.S. 211, 300 L.A.C. (4th) 1, the context of the grievance was set out as follows in paragraph 2: 2. The Grievor, a 22-year employee with a clean record, was one of several employees terminated after a failed food safety inspection in Safeway Store #8905 in west Edmonton in December of 2016. All the other terminated employees came from the deli department, where the violations occurred. The Grievor, who is a grocery clerk, lost her job because she had failed to properly carry out her duties as "Food Safety Champion” ("FSC"). This is a role in which one employee in a store is charged with carrying out regular food safety checks of high-risk areas of the store, of which the deli department is one. [48] In paragraph 53, the Arbitrator distinguished between the actions of the three terminated deli employees, which included “a true falsification of records” versus the grievor’s role to, once a week, conduct a relatively limited inspection of the deli area. [49] In paragraph 54, rather than finding the grievor also engaged in fraud, the Arbitrator characterized the grievor’s misconduct as “negligent failure to perform”. Accordingly, the Arbitrator found that “the different circumstances and degree of culpability between the Grievor and the other discharged employees are too significant to uphold the dismissal.” The Arbitrator substituted a suspension of six months for the dismissal. [50] The Union relied on this case in support of its position that it is proper for an Arbitrator to take into account “different discipline imposed in different circumstances” when assessing the appropriateness of a grievor’s discipline. [51] The Union also relied on the decision in Maple Leaf Meats v. U.F.C.W., Local 832, 1999 CarswellMan 627, [1999] M.G.A.D. No. 15, 55 C.L.A.S. 139, 78 L.A.C. (4th) 129. That case dealt with two employees, both of whom were terminated for engaging in “horseplay and fighting contrary to a known and published policy”. Only the grievor challenged his discipline. The Arbitrator found that the two -15 - protagonists were not equal participants in that the other employee “came after” the Grievor. Accordingly, the termination was reduced to a five-month suspension. [52] The Union submitted there was “some analogy” with the facts in the case before me, and those in employee E’s case, in that in the instant case, the Griever was “set upon” by the inmate, whereas employee E was clearly the aggressor in the circumstances leading to his discipline. The Union submitted this is an important distinction. [53] Finally, the Union relied on O.P.S.E.U. v. Ontario (Ministry of Community Safety & Correctional Services) 2005 CarswellOnt 3504, 137 L.A.C. (4th) 111, 80 C.L.A.S. 370. In that instance, the grievor was discharged for slapping a fellow correctional officer. While the dynamic between the two correctional officers was complicated, the one on the receiving end of the slap played a contributing role. However, only the correctional officer who delivered the slap was terminated, while the correctional officer who had initiated the dynamic that resulted in the slap received no discipline at all. Vice-Chair Herlich found this failure to impose any discipline at all suggested a “type of inappropriate differential treatment” and reduced the grievor’s termination to a one-month suspension. [54] Accordingly, the Union maintained that Vice-Chair Herlich’s determination also supports the principle that the transgressions need not be the same in order to compare the discipline and consider disparate treatment in imposing discipline. [55] In that regard, the Union submitted that although there was no commentary by the inmate regarding the Grievor’s family, as there was in in employee E’s case, there is evidence of provocative language used by the inmate – so the Union maintained the cases are similar in that regard. The Union also submitted that both employee E and the Grievor have similar years of service, and their circumstances cannot be distinguished on that basis. -16 - [56] Further, both disciplines were for breach of the same well-established policy and the need for fairness and consistency comes into play in determining the appropriateness of the discipline. DETERMINATION: [57] There is no dispute that fairness and consistency are hallmarks of appropriate discipline, and ought to be considered when discipline is imposed and when it is challenged. [58] However, as observed by Arbitrator Graham in Interprovincial Cooperative Ltd and CEP Local 341 (Grant), supra, and demonstrated by the cases relied on by the Employer, there is considerable support for the position that an argument respecting differential treatment/discrimination cannot succeed in cases where there are material differences between cases involving the same employer and workplace, and that employers are entitled to make legitimate distinctions between different factual circumstances. [59] Accordingly, while the facts between case do not have to be identical, material facts must “substantially conform” to the circumstances of others who were treated differently for concerns regarding fairness and consistency to arise. [60] However, in establishing whether the material facts conform, the parties cannot “cherry pick” the similarities and ignore the differences. I find that is what the Union attempts to do in this instance. [61] While the common circumstances as pointed out by the Union, are that both the Grievor and employee E were disciplined for violation of the Use of Force Policy, and their service time were roughly the same, the similarities, by and large end there. [62] While the Union appeared to suggest that the knee strike was of a higher order of violation, the Employer countered that closed-fisted blows to the head and face -17 - carried more risk of injury. Who is right? I would need to hear evidence in that regard. [63] The disciplinary letter for the employee E, states: I have taken into consideration all of the circumstances surrounding the substantiated allegations, the seriousness of the above-noted offences, the employer's business interests and the mitigating factors you presented. I have also conducted a comprehensive review of your personnel file, including your employment history, disciplinary record and length of service. With due consideration of the aforementioned, it is therefore my decision, to suspend you for 7 days (56 hours)… . [64] If the limited evidence proffered by the Union is admitted, it stands to reason the Employer will want to lead evidence regarding those elements that influenced its decision almost three years ago. With no notice that it may be required to do so, particularly as the discipline was not grieved, this would be prejudicial to the Employer, and potentially to employee E, who chose not to grieve the discipline. [65] While in Calder, supra, relied on by the Employer, I was dealing with whether the Grievance Settlement Board guideline of considering events three years prior to a grievance when a pattern was alleged, should be extended, and in this instance we are dealing with the passage of approximately 2 years and 9 months, there is no question that the older issues and events are, the more challenging it is for parties to be able to launch a full response. This is even more the case when there is no reason to believe they need to retain records, and memories of events that have been resolved. [66] In that regard, I find Arbitrator Graham’s comments below equally applicable in this instance: 59 I do not think it is an arbitrator’s function in a disciplinary case in which the issue of differential treatment/discrimination is raised, to engage in an exercise whereby detailed comparisons are made between two cases occurring several years apart in which there are some similarities and some differences, and to determine the reasonableness of the discipline imposed in the second case by making comparative adjustments to the discipline imposed in the earlier case. This is particularly so when the evidence available in relation to the case at issue is detailed and comprehensive, and the -18 - available evidence in relation to the earlier incident is general and incomplete. 60 An arbitrator’s responsibility in a case such as this, is not to substitute his or her discretionary assessment for the disciplinary decision made by the employer, but rather to assess whether the employer’s disciplinary decision was within a range of reasonable outcomes, and whether the discipline is discriminatory towards the employee, as that concept has been developed by the authorities, relative to discipline imposed by the employer in earlier cases. [67] Further, while Counsel for the Union submitted that Mr. Janisse was “present at the incident”, a review of the occurrence reports indicates his role was limited to being advised of possible contraband, which led to the search of the inmate who was subsequently assaulted, and once advised of what had occurred, directing witnesses to write occurrence reports, as well as gather other evidence. There is no suggestion, at least from the documents at issue, that he was part of the decision-making process. [68] However, even if that were the case, I am not persuaded the documents are even arguably relevant. [69] In my view, the test of two instances “substantially conforming” to each other requires a constellation of known central facts not in dispute, and while perhaps not identical, but with sufficient common elements that a meaningful comparison can be made. I find that is not the case between the known facts before me, and those which played a significant role in the decision-making regarding employee E’s discipline. [70] Sadly, violations of the Use of Force Policy are not rare occurrences, and result in a range of disciplines based on their specific facts. As Vice-Chair Abramsky stated in Gillis, supra, in the first paragraph on page 54: The GSB, likewise, has recognized that assault of an inmate is just cause for discipline. OPSEU (Collin), supra; OPSEU (Horan), supra; OPSEU (Sindall/Talbot), supra. However, not all assaults on inmates by Correctional Officers will lead to discharge. The Union correctly notes that discharge is not always the outcome in cases of excessive force. It depends on the facts and, in some cases, there may be mitigating circumstances such as provocation, self-defence, or a momentary flare-up. There may be an admission and genuine -19 - remorse. See, e.g., OPSEU (Sindall/Talbot), supra; OPSEU (McPhee), supra; Re Government of the Province of British Columbia and B.C. Government Employees Union (Correctional Services Component), supra. [71] If I were to allow in evidence regarding an incident that is so different from the one in the instant case, where would it end? Could each party then pick cases where the common element is a violation of the Use of Force Policy and the discipline reflects what they would like to see in whatever case is being litigated? [72] It is telling that in none of the cases put before me were the details found to be sufficiently similar to give rise to a meaningful comparison when the discipline arose at a different time, and involved different individuals. It appears that evidence went in without objection, was considered and rejected. The one instance where it was challenged, i.e. Tenaris Algoma Tubes Inc., Arbitrator Trachuk refused to hear the evidence at all as the facts were not sufficiently similar to permit her to draw a comparison with the grievor's situation in the case before her. [73] Even in the cases relied on by the Union, the distinctions made in terms of appropriate discipline were all based on the same known core facts which involved all the individuals whose discipline was at issue. The distinctions flowed from the arbitrators’ findings regarding the disparate roles played by the individuals within those constellations of fact. [74] Accordingly, I am not persuaded that in this instance, as suggested by the Union, this is an assessment most appropriately made in the evidentiary context of the hearing, or following argument. It is abundantly clear that the details of the two instances are sufficiently dissimilar so that evidence regarding employee E’s discipline would not assist me in assessing the appropriateness of discipline in the matter before me. [75] Rather, allowing the evidence in would simply unnecessarily prolong the hearing of this matter, and require the Employer to respond to an incident, the result of which was never grieved, and was laid to rest long ago. -20 - DISPOSITION: [76] For the foregoing reasons, the Employer’s objection is hereby upheld. [77] I find the disciplinary records of employee E to not be arguably relevant. Dated at Toronto, Ontario this 3rd day of May 2024. “Tatiana Wacyk” Tatiana Wacyk, Arbitrator