HomeMy WebLinkAbout2017-0439.Ataw.19-06-03 Decision
Crown Employees Grievance Settlement
Board
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Commission de
règlement des griefs
des employés de la
Couronne
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Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2017-0439; 2017-0440
UNION# 2017-0135-0003; 2017-0135-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Ataw) Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Diane L. Gee Arbitrator
FOR THE UNION Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Paul Meier
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING September 5, 2017; December 13, 20,
2018; January 30, March 21, April 15, 26,
May 2, 2019
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Decision
[1] This matter concerns two grievances. The first grievance alleges a breach of
Appendix COR10 titled “Surveillance in Correctional Workplaces” (“COR10”).
Pursuant to COR10, where the Employer is relying on video recordings for
discipline or investigative purposes, the Employer is required to advise the Union
prior to the investigation meeting and, upon request, to provide a copy of the
recording to the Union.
[2] The second grievance alleges “unjust termination, and violations of Article 2
Abuse of management rights, Article 3 Discrimination, Article 9 Health and
Safety, OHSA 25(2)(h), Ontario Human Rights, code based discrimination, and
any other article, policy or legislation that may apply.” The grievor was
discharged for events captured on video that occurred on November 30, 2016.
The allegations raised by the grievor in the portion of the grievance concerning
discrimination and health and safety violations are relied upon by the grievor as
mitigating circumstances in connection with his discharge and also as a stand-
alone complaint. The two portions of the grievance are interwoven and thus are
dealt with herein together. For ease of reference I refer to the portion of the
grievance that deals with the grievor’s discrimination and health and safety
allegations as the “discrimination and harassment complaint.”
[3] The Employer called Donald Davis, the Superintendent SWDC as of April 2017
and continuing (“Superintendent Davis”), Correctional Officers Jodi Allard (“CO
Allard”) and Emily McIntyre (“CO McIntyre”), and Deputy Superintendent Lisa
Smith (“Deputy Superintendent Smith”) as witnesses. In addition, will-say
statements by Karen Baxter, the Superintendent at SWDC from March 7, 2016 to
March 31, 2017 (“Superintendent Baxter”), Deputy Superintendent Smith, Andrea
Dupuis, Registered Nurse, (“RN Dupuis”) and Sergeant Mathew Parr (“Sergeant
Parr”) were admitted into evidence on consent. The Union accepts that, had the
declarants of the will-say statements been called as witnesses, they would have
testified as set out therein. In addition to calling the grievor as a witness, the
Union filed a detailed statement of particulars that was adopted by the grievor.
[4] There are some disputes between the testimony given by the grievor and that
given by other witnesses. As is detailed below in the section where I review the
evidence and make findings of fact, there were a number of instances where the
grievor attested to a version of events that, having regard to the video evidence,
simply could not be true and at least one instance where his evidence was simply
improbable. Further, there were a number of instances where the grievor
refused to agree to events that were clearly depicted on the video. The other
witnesses all gave their evidence in a straight forward manner. There were no
contradictions between their evidence and the documents entered into evidence
or the video. Their evidence was probable and none of them demonstrated a
propensity to exaggerate or deny obvious facts. Their evidence was consistent
with contemporaneously prepared Occurrence Reports (“OR”). As a result,
where conflicts arise between the evidence of the grievor, and that of another
witness, I prefer the evidence of the other witness.
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[5] Superintendent Davis, who began working as a CO in 1984, and worked his way
up to the position of Superintendent through a number of positions of increasing
responsibility, testified as to the standards expected of a CO working in the
institution writ large and in the female unit specifically. As part of the CO training
program, new recruits are made aware of their obligation to be knowledgeable
about, and comply with, the Ministry of Community Safety and Correctional
Services’ Institutional Services Policy and Procedures as well as the Code of
Conduct. A hard copy of each of these documents is given to employees and
they are available on the public drive accessible by all corrections staff.
[6] Correctional officers are to act as role models for the inmates. They are to act
professionally and with integrity. They are to act in a fair and equal manner
towards all inmates on any given day. The job is a serious one and CO’s are not
to engage in horse play.
[7] In the “Administration” section of the Ministry of Community Safety and
Correctional Services’ Institutional Services Policy and Procedures Manual there
is a section entitled “Statement of Ethical Principles.” It reads, in part, as follows:
Correctional Services employees of the Ministry have a responsibility to protect
the public by providing custodial and community supervision and rehabilitative
service to those referred by the judiciary and other legislative authorities. To
meet this goal requires a commitment to ethical behaviour and a high calibre of
professional conduct.
Accordingly, as employees we will:
Perform our duties on behalf of the citizens and Government of Ontario with
honesty and integrity.
Fulfil our duties in a diligent, competent and courteous manner.
Fulfil our responsibility to colleagues by fostering and maintaining working
relationships based on mutual respect dignity and cooperation.
Contribute to sustaining an environment which is fair, equitable and free from all
forms of discrimination and harassment.
Display professional conduct and maintain relationships which are fair, impartial
and free of impropriety in all of our dealing with those currently or formerly under
the Ministry authority, their families and associates.
Respect the civil, legal and human rights of those under our care and
supervision.
Maintain the confidentiality of information acquired through our employment,
consistent with relevant legislation and protocols.
Promote the principles and support the practices of achieving a safe and healthy
work environment.
….
[8] The remainder of the document contains further statements that provide more
detail of the duties, responsibilities and obligations that a CO is required to
uphold. Amongst them are the following:
Act with propriety, honesty and fairness in the conduct of one’s duties.
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Present a professional image both in actions and in words.
Contribute to sustaining an environment which is fair, equitable and free from all
forms of discrimination and harassment.
Display professional conduct and maintain relationships which are fair, impartial
and free of impropriety in all of our dealings with those currently or formerly under
the Ministry authority, their families and associates.
[9] In addition, the Ontario Correctional Services Code of Conduct and
Professionalism provides, in part, as follows:
Being a public servant is, in itself, an honour and a privilege. As public servants
working in Correctional Services, we are entrusted by our fellow citizens to play a
pivotal role in the justice sector and in the community: one that has the potential
to affect many lives. Your efforts to change the behaviour of those under our
supervision and in our care and custody, to guide them to think differently and to
make better choices, affects not only their lives but the lives of everyone around
them.
[10] It provides that the responsibilities of those employed in correctional services
include:
2. Fulfil our duties in a diligent, capable and courteous manner.
The responsible discharge of duties means employees will:
Act with honesty, courtesy, fairness, dignity, respect and impartiality in the
conduct of professional duties. Under no circumstances shall any person
be subject to threatening, humiliating, bullying or degrading treatment,
including hate or hate activity;
Respect the dignity and human rights of colleagues and clients, other
employees, all visitors, contractors and members of the public in a fair
and equitable manner.
Perform work professionally, accurately, thoroughly and in a timely
manner;
Present a professional image in appearance actions and words; and
Participate in decision making through positive innovative and
constructive means.
[11] The evidence establishes that female inmates constitute a very vulnerable group.
The majority have been victimized and some have been abused, including sexual
abuse. Many are from broken families and have history of drug or alcohol abuse.
The correctional officers are encouraged to take a “trauma based” approach
when dealing with the female inmates which entails listening to the inmates and
being sensitive to what they have experienced. Correctional officers are to act as
role models. In the direct supervision model, the CO’s who are directly in the
unit, depend on one another to keep control of the unit. Their mutual safety
depends on it.
[12] There is no dispute that the grievor was aware of all his duties and
responsibilities as attested to by Superintendent Davis.
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[13] The grievor’s service date is May 27, 2008. He transferred from Toronto to the
SWDC in 2014 in order to help out his parents who were living in Windsor. He
moved in with his parents and took over their mortgage. When the grievor
started working at SWDC he worked in the male side of the institution. At some
point after the grievor started at SWDC, his brother informed their parents that
the grievor was gay and his parents turned against him. He and his parents
became estranged. Feeling very lonely, in early 2015, the grievor began a
relationship with a man referred to herein as “CD.” The relationship became
abusive and ended in or around April 2015. CD assaulted the grievor and was
criminally charged.
[14] In the summer of 2015, the grievor filed three ORs in which he made the
Employer aware of events that he considered to amount to harassment and
bullying. The ORs were made on July 20, July 26 and August 14, 2015. The
complaints set out in these ORs plus additional allegations raised subsequently
became the subject of a WDHP complaint.
[15] In September 2015, the grievor became aware that CD was to be remanded at
the SWDC in connection with murder charges. The grievor put in a request that
CD not be housed at SWDC. He explained that he had been assaulted by CD
and CD had threatened to poison his work environment. That same day, the
grievor was put on paid suspension pending investigation as a result of a
photograph of him smoking marijuana having been posted on Facebook by CD
with direct reference and negative comments related to his employment with
SWDC. CD was in fact committed to the SWDC and remained in the SWDC
while the grievor was absent from work on suspension pending investigation of
the Facebook posting. While in the institution, CD spread rumours about the
grievor. CD was removed from the institution just before the grievor’s return to
work on April 27, 2016. The grievor asserts that by allowing CD to be housed at
the SWDC the Employer permitted his work environment to become poisoned.
[16] On November 27, 2015, an investigation meeting took place at which the grievor
raised incidents that had occurred in the workplace that were stated to amount to
harassment and discrimination. He said when working on the male side of the
institution correctional officers made jokes about blow jobs.
[17] On March 22, 2016 the grievor attended a discipline meeting with Superintendent
Baxter and then Deputy Superintendent Davis at which he was given a letter of
reprimand for the Facebook posting. The grievor contends that Superintendent
Baxter and then Deputy Superintendent Davis’ conduct at this meeting amounts
to harassment and discrimination.
[18] When the grievor returned to work on April 27, 2016, he was, pursuant to his own
request, assigned to work in the all-female unit at SWDC. The grievor worked in
the all-female unit until November 30, 2016, his last day of active work. There
were occasions during this time where managers would call him on the radio to
search an inmate on the male side of the institution as female COs cannot
search a male inmate.
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[19] On May 20, 2016, at the grievor’s request, he met with Superintendent Baxter.
Also in attendance were CO Grinage, present as the grievor’s union
representative, and Deputy Superintendent Smith. The grievor stated that the
reason for the meeting was that he wanted to drop his WDHP complaint if it was
still ongoing. He stated that everything was going well, and he wanted to
continue to have good relationships with his coworkers. At the end of the
meeting Superintendent Baxter specifically advised the grievor that if he had any
other “WDHP concerns” or, if there were any issues in the future, “he should
bring them to the attention of management and/or Ms. Baxter.” The grievor filed
no complaints between this meeting and March 30, 2017.
[20] The grievor states that, as of November 30, 2016, his mental health was
suffering. He was estranged from his parents and felt his workplace was
poisoned. He felt he was being subjected to harassment and bullying in the
workplace. He needed help but he did not believe he was getting support from
the local Union or his Employer. He decided to take the entire month of
December 2016 off as vacation in order to take care of his health. On November
30, 2016, the grievor’s last day of work before his one-month vacation, he had
wanted to go home sick because he was not feeling well but his co-workers
convinced him to stay. The grievor states he was not well on November 30 and
such was the cause of his conduct that day.
[21] I turn then to the events of November 30, 2016. The material evidence adduced,
and my findings of fact, are as follows.
[22] The grievor commenced work at 7:00 a.m. on November 30, 2016 in the all-
female unit. He was scheduled to work until 7:00 p.m. He was partnered with
CO Allard, who he had worked with regularly in the past. CO Allard is senior to
the grievor. CO McIntyre, who had never previously worked with the grievor, was
assigned to relieve CO Allard and the grievor for their breaks and dinner. CO
Melissa Luckie (“CO Luckie”) was assigned to work in Sub Control. There are
two CCTV cameras in the unit. One of the inmates in the unit is involved in many
of the events of November 30, 2016. She is referred to in this decision as “AB”.
[23] There are approximately 32 inmates in the unit in question with two officers
inside the unit with the inmates and one officer in Sub Control. It is a direct
supervision model meaning that the officers sit in the unit with the inmates. The
COs can sit at a workstation or walk around the unit.
[24] At 7:48 a.m. the grievor is sitting in a chair at the workstation looking towards a
few inmates. The grievor sees an inmate strike AB in the groin and does
nothing. Seconds later, the grievor makes a slapping or spanking motion with his
hand followed shortly thereafter by holding his hand out and squeezing his
fingers together. He then claps his hands and laughs.
[25] The Employer identified a number of issues with the grievor’s conduct: the
grievor’s gestures were inappropriate and of a sexual nature; he was not
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modelling appropriate behaviours; and by laughing he condoned the inmates’
improper behaviour instead of addressing it and ensuring that it did not escalate.
[26] With respect to the slap of one inmate by another inmate, the grievor first agreed
he should have addressed it and taken the opportunity to discuss appropriate
behaviours in the unit, however, at another point in his evidence, the grievor
testified that he did in fact tell them to tone it down. The video establishes that
the grievor did not tell the inmates to tone it down. With regard to the hand
motions, the grievor stated that he was going along with the inmates teasing him.
According to the grievor, CO Allard had spoken to him privately that morning and
the inmates were saying things like “oh did she smack your ass” and “Jodi
whipped on you.” The grievor suggests that the inmates were doing a whipping
motion and he was simply going along. The video does not show the inmates
making any whipping motions. The grievor denies that his hand motions were
sexual in nature or inappropriate. The grievor states that he was embarrassed
by his movements on this day. He sees himself as jittery, nervous and constantly
in motion. He says his mental state was not good; he did not want to be at work.
[27] I find the grievor’s gestures were inappropriate and can be perceived as sexual in
nature. He sat at the desk laughing and clapping his hands at the inmates’ antics
thereby encouraging their behaviour. I find the grievor did not address the
situation when one inmate hit another thereby potentially permitting the situation
to escalate which could place the safety of the COs in the unit in danger. The
grievor was not truthful when he testified that he told the inmates to tone it down
and when he testified that they were making whipping motions.
[28] The next incident occurs at 8:26 a.m. The grievor is sitting at the horseshoe
shaped work station when AB comes by and deliberately flicks a piece of paper
off of the desk and then pushes paper bags onto the floor. While the grievor is
distracted, bending down and picking up the papers, AB grabs a juice box off of
the desk which she drinks from and takes away. The Employer states that the
grievor did not speak to AB about appropriate behaviours and created a security
breach by permitting her to remove contraband from the desk. The grievor
agrees that he should have told AB not to flick papers and bags off of the desk
onto the ground. The grievor testified that he did not see her take the juice box
off of the desk at the time it happened.
[29] I find that the grievor did not address AB’s behaviour as he is required to do as
part of his duties and permitted himself to be distracted by the papers pushed
from his desk thereby enabling an inmate to remove an item of contraband from
the desk. The grievor’s failure to remind AB of appropriate behaviours and the
ease with which he became distracted, thereby enabling the inmate to take an
item from the desk, created the risk of an unsafe situation developing in the unit
which is a danger to all COs who work there.
[30] At 8:30 a.m. Sergeant Jamie Taylor (“Sergeant Taylor”), who is the grievor’s
superior, was at the work station. The grievor is standing behind him with a radio
in his hand and, with the radio held with the antenna pointing out towards a group
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of inmates who are standing across the room looking at him, moves his body
rapidly from side to side. He then uses the radio to make a stabbing motion
towards Sergeant Taylor’s back. AB, along with other inmates, can be seen
laughing. The Employer states that this incident is very unprofessional and not
modelling proper behaviours. It is disrespectful of Sergeant Taylor.
[31] At the allegation meeting, the grievor agreed he was spraying the radio around
like a gun; at the hearing he denied that is what he was doing. The grievor
testified that he had not seen the video when he spoke at the allegation meeting.
The grievor testified that his swinging back and forth makes no sense. He says
he was playing with his hands and moving back and forth because he was
feeling on edge and nervous. In order to take his mind off of things he was doing
“random stuff” that had no meaning. The grievor agrees he jabbed the radio
towards Sergeant Taylor’s back and says he was joking to be funny.
[32] Having viewed the video it is my determination that the grievor was mimicking the
motion of spraying a gun in the direction of the inmates and then, as he agrees,
jabbing the radio towards Sergeant Taylor. The grievor’s conduct was
inappropriate, unprofessional and insubordinate. His actions could serve to
diminish the authority of Sergeant Taylor in the eyes of the inmates. He was not
modelling good behaviour.
[33] At 8:38 a.m. the grievor walks up to AB, who is sitting in a chair, and, after
rubbing his own stomach touches her upper thigh. He walks jerkily away and
then turns and walks back. He stands in front of AB and two other inmates
moving from foot to foot and swings his arms back and forth in a pronounced
manner. After shuffling from foot to foot a few times, the grievor then walks away
again, returning again, this time, after stopping to look behind himself as if to see
if anyone is looking, he walks a few steps with his arms pressed back and his
chest out in a duck like manner. He then flaps his arms up and down at his sides
followed by swinging his arms out at waist level followed by swinging his arms
and upper torso from side to side all the while shuffling his feet.
[34] Superintendent Davis testified that in his 35 years working in correctional
institutions, he has never seen a CO act this way in front of female inmates. The
grievor crossed a boundary when he touched AB, was not modelling proper
behaviour and was not acting professionally.
[35] The grievor denies that he touched AB, saying that he put his hand just above
her leg. He agrees that he ought not to have done that as there is supposed to
be a boundary between COs and inmates. He says that boundary is an
important one. The grievor testified about his movements as described above as
follows:
It is just random stuff cause I do not feel like being at work I am nervous on edge
my mind is thinking about stuff I am doing random stuff with my body, my
emotions and my mind are all over the place - to take my mind off I was doing
these gestures. I cannot even stand still - I cannot stay in one spot - always
moving around - that is how stressed I was, I keep pacing. It was not normal.
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[36] I find the grievor’s behaviour to be inappropriate and unprofessional. COs are
not to touch an inmate for no reason, and he did so.
[37] At 8:40 a.m., RN Dupuis, entered the unit to administer the inmates’ medication.
RN Dupuis stands with her cart on one side of the workstation. At this time, CO
Allard is doing the watch tour and is away from the desk. The grievor is standing
by RN Dupuis as he is supposed to do in order to supervise and ensure her
safety. Two inmates, one of which is AB, come out of their cells carrying pillows.
Before there is time for RN Dupuis to have said anything, the grievor motions for
the inmates to set their pillows down on the opposite side of the work station from
where he and RN Dupuis are standing. The grievor then leaves RN Dupuis,
goes to a filing cabinet, and gets out a glass bottle of cologne. He then goes
around to the opposite side of the work station from where RN Dupuis is standing
and sprays the pillows. The inmates pick up their pillows and put them away.
According to RN Dupuis, the grievor’s actions made her feel uncomfortable and
unsafe. When, following completion of the watch tour, CO Allard returns to the
work station, she smelled the cologne and found the bottle in the cabinet. She
had never seen the bottle before. She asked the grievor where the bottle had
come from and if he sprayed it. I accept CO Allard’s evidence that the grievor
said it wasn’t his; he did not know where it came from; and he may have sprayed
it accidentally while going through the drawer.
[38] The Employer states that the grievor’s conduct is a serious violation of his duty to
provide protection to the nurse. Further there should not be cologne on the unit
and the grievor should not be spraying the inmates’ pillows with cologne. If he
found cologne on the unit, he should have reported it and had it removed.
Having cologne in a glass bottle on the unit is unsafe.
[39] The grievor testified that RN Dupuis gave him permission to leave her
unattended and go spray the inmates’ pillows. According to the grievor, just as
the inmates were walking out with their pillows, RN Dupuis said to him: “It’s okay.
Just go. Just go.” I do not accept this evidence. RN Dupuis did not speak to the
grievor after seeing the inmates with their pillows and before the grievor left her
side. The grievor also denied that he directed the inmates where to put their
pillows when the video clearly shows that he did.
[40] In the course of explaining his conduct, the grievor testified: “inmates on an
earlier shift were doing it so I continued to do it on my shift because I was just not
feeling good that day so just not to have tension with inmates and have a smooth
day with no arguments, I decided to do it.” No particulars as to what it was the
grievor was asserting had occurred on earlier shifts were given. The grievor
states that, at the time, he did not think spraying the inmates’ pillows with
cologne from a glass bottle created any security concerns. When asked if he
now sees a security concern he replied “yes, well there is not supposed to be
perfume on the unit - not supposed to be spraying anything with perfume - I
would tell the manager on duty the perfume is on the unit.” In respect of his
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having left the nurse unattended, the grievor agreed it was not good but “she had
said it was okay.”
[41] I find the grievor failed to fulfill his duty of providing protection to RN Dupuis while
she was in the unit; created a security issue when spraying cologne on the
inmates’ pillows from a glass bottle and not reporting its presence on the unit;
and acted inappropriately and unprofessionally. Further the grievor lied to CO
Allard when he told her he didn’t know where the bottle of cologne came from
and that he may have sprayed the cologne accidently.
[42] After spraying the pillows, the grievor returns to standing beside RN Dupuis. At
one point, after an inmate has walked past him, he turns to look at her and then
reaches out his hand and makes a squeezing motion. A few seconds later,
looking in the direction where some inmates are gathered, he plants his feet
shoulder width apart, puts his arms out in front of him with his hands turned in,
and moves his arms forward and back towards his groin.
[43] The Employer argues that both of these gestures are sexual in nature, the first
simulating groping and the second simulating the sex act.
[44] The grievor was asked if his gestures were appropriate and he replied: “the way I
was feeling I was moving around even when you watch the video I am moving I
am agitated moving around with my hands and my body there is no intent it is
just the way I was feeling.” The grievor testified that it was not his intention to
simulate the sex act and he does not understand how his motions might be
perceived as such.
[45] I find that both gestures appeared sexual in nature and were conducted while he
was looking towards inmates. The gestures were inappropriate and
unprofessional.
[46] At 9:10 a.m. the grievor is sitting in front of the computer located on the desk. He
has it open to the system known as “OTIS” from which the user is able to obtain
information on all of the inmates. Everything in this system is confidential. There
are two inmates standing at the desk. Once he logs into the system, one of the
inmates moves over to get a better look at the screen and the grievor does not
instruct her to stand back. The Employer states that it is a breach of security and
privacy to allow an inmate to look at the information in OTIS.
[47] The grievor testified that he was looking up the information of the inmate who
was looking at the screen. The screen is only visible from a direct front view and
hence it would not have been visible to the inmates who were standing to the
side of the screen. The grievor testified that he told them to move back but he
did not enforce it. Without providing any particulars, the grievor said: “staff on
other shifts look up stuff on the computer all the time and they let inmates look at
the computer screen.”
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[48] I find the grievor sat at the desk with OTIS open while an inmate looked at the
screen on the computer. Inmates are not to be permitted to look at OTIS as it
contains confidential information. The grievor breached policy by permitting the
inmate to look at the screen.
[49] At 10:04 a.m., AB and another inmate approach the grievor who is sitting at the
desk with CO McIntyre. CO McIntyre is filling in for CO Allard who is on her
break. The inmates ask the grievor to spray them with cologne. He sprays AB
across her chest and then in the groin area. AB swats at the grievor. The
grievor then sprays the second inmate across the chest.
[50] The Employer states that the conduct is inappropriate and unprofessional. The
grievor crossed the boundary that must be maintained between CO and inmate.
[51] The grievor states the inmates told him how they wanted to be sprayed and he
sprayed them where they asked. He agrees his conduct was not appropriate that
he should not have been spraying perfume on the inmates. The grievor denies
that he sprayed AB in the area of her groin notwithstanding that the video shows
him doing so.
[52] I find the grievor sprayed AB in the area of her groin with perfume. The grievor
acted inappropriately and unprofessionally.
[53] Shortly thereafter, while CO McIntyre is still filling in for CO Allard, AB asked the
grievor if she could use the officer phone at the workstation. The phone at the
workstation is for office use only; there are Bell telephones in the unit for the
inmates to use. The grievor called Sub Control and put the phone on speaker so
that the inmates could talk to CO Luckie. CO Luckie hung up as soon as she
realized it was the inmates on the phone.
[54] Thereafter, when CO McIntyre had left the workstation to do the watch tour, the
grievor allowed an inmate to lean over the workstation and watch how he
activates a watch tour on the LU Monitor. The Employer states this is a breach
of security and unprofessional. The grievor cannot recall if he allowed the inmate
to touch the screen and agrees that what he did was not a secure thing to do.
He states that other staff let the inmates push the buttons and so he did it to
avoid a battle. No particulars were provided as to other staff allowing inmates to
push the buttons. I find the grievor’s conduct was a breach of security and
unprofessional.
[55] When CO Allard was returning to the unit from her break, she was stopped by
CO Luckie and told that the grievor had sprayed the inmates’ pillows earlier in the
morning with cologne and more recently allowed them to use the phone to call
Sub Control. CO Allard then informed Sergeant Taylor.
[56] At 2:51 p.m., at a point in time when CO Allard was on her afternoon break and
CO McIntyre was again in the unit, the grievor gave a piece of cake, brought in
from outside the institution, to AB and another inmate.
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[57] The Employer states that inmates are not to be given anything from outside of
the institution. Anything from outside of the institution is contraband. There is a
program in place whereby chocolate bars etc. are supplied by the institution for
officers to give to inmates as an incentive.
[58] When asked why he gave the inmates the cake, the grievor stated that they were
being good, so they deserved it. The grievor further testified that he first asked
CO McIntyre if he could give the cake to the inmates and she said it was okay.
CO McIntyre denies that the grievor asked her if he could give the inmates the
cake. I find it improbable that the grievor, with years of service as a CO would be
asking a CO with only seven months of service, with whom he had never worked
before, if he can give the inmates cake. Further, again without providing any
particulars, the grievor stated that staff bring food in and give it to the inmates all
the time and “to avoid conflicts this particular day I just offered it out.” I find the
grievor gave cake from outside the institution to two inmates in violation of policy.
[59] At 2:55 p.m., when CO McIntyre is still in the unit, the grievor is sitting at the desk
talking to four inmates, one of whom is AB. The grievor makes movements with
his hands, first to his face, and then in the area of his groin while moving his hips,
that look like he is simulating a sex act. AB bends her head down laughing and
another inmate turns her face away. The Employer sees the gestures as sexual
in nature and inappropriate. The grievor states that there was no purpose to the
gestures. He says he is doing random things with no meaning and does not
even know why. The grievor referred to the fact that he was always shaking and
moving the chair and said he was doing these things to make himself feel better.
The grievor did not see how the gestures could be viewed as sexual.
[60] The grievor refused to acknowledge aspects of this event that are clear from the
video. The grievor testified he was not looking at the inmates when he made the
gestures when the video clearly shows that he was looking at the inmates and
they were looking at him. Further the grievor would not agree that AB responds
to his gestures by lowering her head and looking away when she clearly did.
[61] I find the grievor made sexual gestures while talking to the inmates. His conduct
was inappropriate.
[62] At 2:57 p.m. the grievor tossed paper plates in the direction of inmates. The
plates did not hit the inmates. The grievor explained: “like I can’t recall who
those were directed to. I was not feeling myself and playing with random stuff.
Looking at it now just doing stuff to take my mind off of stuff.” The grievor then
got out a bag of seeds and put some seeds between the paper plates. He shook
the plates up and down in order to make noise. During some of the shaking, the
grievor bounced up and down in his chair. After doing that a few times, the
grievor tossed seeds directly at AB hitting her. AB picked up a seed and tossed
it back at the grievor. The grievor then, still seated in his chair, bent down and,
for a minute or two, appears to be picking up the seeds that landed on the floor.
While the grievor is doing this, AB takes something off of the workstation desk.
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She and another inmate look at it. AB either returns it to the desk or puts it in her
pocket. The grievor did not notice this happening.
[63] Again, the grievor’s actions were inappropriate and unprofessional. He permitted
himself to be distracted which created an opportunity for AB to remove
something from the workstation desk.
[64] At 3:16 p.m. the grievor, while seated in the desk chair, rolls across the length of
the unit to an area where inmates, one of whom is AB, are sitting talking and
watching television. The grievor rolls himself into close proximity of AB. He
places paper plates on the shoulder of an inmate and watches them fall to the
floor. After sitting for a moment, the grievor flicks AB’s hair with a paper plate he
has in his hand. After a few moments, during which the grievor rolls around in
the chair, the grievor gets a pen out of his pocket and writes on the paper plate.
After several seconds of sitting writing on the plate, the grievor suddenly rolls in
his chair towards AB and pushes the plate in her face. AB wipes her face and
the grievor rolls back a couple of metres. After sitting there for a few moments,
the grievor pushes off with his feet and rolls in his chair back towards the work
station.
[65] The grievor agrees he should not have pushed the plate in AB’s face as it is not
appropriate.
[66] I find the grievor crossed the line that must be maintained between inmate and
CO when he pushed the plate in AB’s face and flicked her hair with a plate. He
behaved inappropriately and did not model appropriate behaviours.
[67] At 3:25 p.m., while CO Allard is on break and CO McIntyre is in the unit, an
inmate who was leaving the unit had to be frisked. Male officers do not frisk
female inmates. CO McIntyre and the inmate were walking in the grievor’s
direction when the grievor, rolling in his chair towards the inmate, and making
groping gestures with his hands, proposed that he perform the frisk search. The
grievor then laughs. CO McIntyre testified that the grievor’s tone was
“suggestive” and she found the grievor’s conduct to be unwarranted and in bad
taste. CO McIntyre, as a junior officer working with an experienced officer, felt
overwhelmed and did not know what to do.
[68] The grievor agrees he said to CO McIntyre and the inmate “oh let me frisk her.”
His explanation is that inmates are always joking “why aren’t you frisking me” so
he just joked back. He says the gestures he made with his hand were not
groping gestures, he was mimicking crimping clothing. The grievor disagrees
that he spoke in a suggestive manner. The grievor suggests that CO McIntyre
did not understand the joke because she did not know that the inmates are
always joking with him about him frisking them. The grievor testified: “it is wrong
for me to say it back” but then went on to say: “but given the circumstances they
are always joking with me.”
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[69] I find the grievor’s conduct to be inappropriate and a violation of policies requiring
COs to act professionally and model appropriate behaviours.
[70] At 4:58 p.m. the grievor walks up to AB, who is sitting in a chair, grasps the back
of the chair and tips it forward. The grievor cannot explain why he did this other
than he was “just fooling around again.” The grievor agrees he should not have
tipped AB’s chair. I find the grievor’s conduct to, again, be inappropriate and a
violation of policies requiring COs to act professionally and model appropriate
behaviours.
[71] At 5:04 p.m. when CO Allard is on break, the grievor can be seen sitting at the
work station concealing something underneath some paper bags. A few minutes
later an inmate comes over and he gives her what was under the paper bags.
The grievor explained that the inmate had asked him for coffee. He went to the
staff room and got coffee, tea and sugar but did not bring enough for everyone
and that is why he concealed it. The grievor testified that the usual process for
getting coffee or tea for the inmates is to get approval and have someone bring it
in. Without providing any particulars, the grievor stated that, what he did is a
common practice and management knows about it.
[72] I find the grievor acted inappropriately by giving coffee or tea to only one inmate
in a secretive manner instead of following the usual process.
[73] At 5:14 p.m., AB and two other inmates are standing at the work station. CO
McIntyre heard laughter and banter and then saw the grievor take the desk light
and place it on his lap in his groin area. The video shows the inmates playing
with the desk lamp and then the grievor pick the lamp up, put it in front of his
groin, and turn the light on and off. The grievor explains that the inmates flicked
the light on and off at him, so he flicked it back at them. “They flicked it at me, so
I wanted to flick it back at them.” The grievor says he should not have done it but
denies that he placed the lamp in front of his groin. I accept the evidence of CO
McIntyre that the grievor placed the lamp in front of his groin.
[74] Again, the grievor’s conduct was sexual in nature, inappropriate and a violation of
policies requiring COs to act professionally and model appropriate behaviours.
[75] At 5:23 p.m., the grievor took the cologne out of the cabinet and sprayed it on a
piece of paper and handed it to AB. The grievor then sprays AB and an inmate
standing beside her in the face with the cologne. AB makes a swatting motion.
The grievor denies he sprayed the two inmates in the face; it is the grievor’s
testimony that he was pretending. At 5:24 p.m., the grievor has a ruler in his
hand and is waving it very aggressively back and forth. He then stands up, turns
his back to AB and the other inmate and puts the ruler down the back of his
pants. The grievor states that he was not comfortable due to his uniform and
extra weight he was carrying; he used the ruler to scratch his lower back. The
grievor states: “it was a poor choice but in moment it just felt like the right thing to
do.”
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[76] Again, I find the grievor’s conduct to be inappropriate and a violation of policies
requiring COs to act professionally and model appropriate behaviours.
[77] At 5:26 p.m. the grievor is sitting at the work station. AB and a few other inmates
are standing in front of him at the counter. AB asks the grievor for paper, which
the inmates are permitted to have upon request. The grievor gets out a pad of
paper and holds it out to AB but when she reaches for it, he pulls it away. As AB
is reaching to get the paper, her hand now all the way across the desk, the
grievor puts the pad of paper between his legs. The grievor again reaches to get
the pad of paper out from between the grievor’s legs. When AB is still unable to
reach the pad of paper, the grievor gives it to her. According to CO McIntyre,
when the grievor put the pad of paper between his legs, he invited AB to get it in
an “inviting manner.”
[78] The grievor asserts that he was joking around and states that he ought not to
have done it.
[79] I find the grievor’s conduct was sexual in nature, inappropriate and a violation of
policies requiring COs to act professionally and model appropriate behaviours.
[80] At 5:27 p.m., when CO Allard is on break and CO McIntyre is on watch tour, the
grievor gave AB a latex glove from a box at the workstation. Latex gloves are
contraband and can only be given to an inmate for a legitimate purpose such as
cleaning. In such a case the return of the glove must be accounted for. Latex
gloves are strictly controlled because they can be used by inmates to move
items, such as drugs and lighters, around the institution by inserting the item into
the finger of a glove and hiding it in a body orifice. On the video, the grievor
gives AB a latex glove; AB fills the glove with water from a tap at the workstation
and the grievor then holds the water filled glove for AB while she ties it. Another
inmate can be seen reaching over the wall of the workstation and helping herself
to gloves. One inmate rips pieces off of the gloves and throws the pieces onto
the desk. The grievor takes the pieces and puts them in the garbage.
[81] CO Luckie, in Sub Control, was so upset when she saw what was happening,
she placed a call to CO Thomas who went into the unit and had the inmates
throw the gloves in the garbage. When CO Allard became aware of what had
happened, she too demanded that any inmate in possession of a glove return it.
CO Allard spoke to the grievor about the incident and he responded in an angry
tone of voice: “Don’t tell me how to do my job I am the senior officer here and I
am sick and tired of people telling me how to do my job.”
[82] The grievor testified that he allowed the inmates to have the gloves because they
were asking for them. The grievor further stated, again, without providing
particulars, that other staff give the inmates gloves so that they can use the circle
part for their hair. The grievor testified he realizes what he did was not
acceptable, and he should not have done it.
- 16 -
[83] By giving the inmates’ latex gloves, the grievor handed out contraband that can
be used by the inmates to move dangerous substances such as drugs and
lighters through the institution. He committed a violation of the Ministry’s policies
and procedures.
[84] By way of explaining all of the conduct described above, the grievor stated that
he was not well on November 30 and that this day was an anomaly: “if you pick
any other day - any random day - I do not behave that way. I have been there for
10 years. I have never had a day like this before. I had a lot going on.”
[85] The grievor acknowledges his conduct on November 30, 2016 was inappropriate
and says, if he is allowed to go back to work, he would not behave like that
again. The grievor was suspended pending investigation at the end of the day
on November 30, 2016 and subsequently dismissed.
[86] As indicated above, the grievor withdrew his first WDHP complaint on May 20,
2016 and did not bring any further issues to the attention of the Employer prior to
his discharge. While the grievor asserts that he was pressured to withdraw his
complaint, I find that the evidence does not establish that pressure was placed
on the grievor by anyone to an extent where he was not able to make his own
decision freely. Further, the will-say statement of Superintendent Baxter states
that the complaints were investigated, and the investigation closed, with the
finding that the allegations did not fall within the scope of the WDHP. The
interests of finality demand that, in the absence of a compelling reason to reopen
matters that have been considered, by all parties, to be closed, they cannot be
reopened. Accordingly, I find that the grievor cannot now advance allegations of
harassment or discrimination that predate May 20, 2016, the date on which he
told the Employer that he wanted to withdraw his complaint and that, as of that
date, everything was fine.
[87] On March 28, 2017 the Employer couriered to the grievor a letter advising him of
the allegations that had been made against him. The letter listed all of the events
of November 30, 2016 detailed above. Two days later, on March 30, 2017, the
grievor sent the Employer an email setting out allegations of harassment and
discrimination in the workplace. For the reasons set out above, the grievor
cannot raise allegations that predate May 20, 2016. The allegations set out in
the grievor’s Statement of Particulars that post-date May 20, 2016, and the
Employer’s response to each, are as follows.
[88] It is alleged that, notwithstanding it was guaranteed his concerns raised earlier
would be addressed, they were not. The grievor did not particularize who gave
him these assurances or what was to be done. In Superintendent Baxter’s
statement she states that an investigation was conducted, and the investigator
concluded:
…that the Grievor identified general themes and issues but did not provide
specifics to substantiate his complaints. The investigation showed that the
allegations raised by the grievor were not within the scope of the Workplace
Discrimination and Harassment Policy.
- 17 -
[89] One of the individuals named in the grievor’s complaint was spoken to in order to
review the need to ensure their actions, body language and facial expressions
are not taken out of context or inappropriate. A decision was made not to
implement workplace restoration strategies. I find that the grievor’s first WHDP
complaint was investigated by an investigator who identified steps to be taken
and that such steps were taken by the Employer. During the hearing, the grievor
did not identify any specific concerns that he alleges were to be addressed that
were not. There is no evidence to support this allegation.
[90] It is alleged that notwithstanding that the grievor asked not to work with male
inmates because he was in fear for his safety, some managers would call for him
on the radio to frisk or search a male inmate “singling him out.” No particulars
were provided. It is the case that female COs cannot frisk male inmates and that
there is a practice of calling a male CO to perform the frisk. I find the grievor
being called to perform a search of a male inmate was consistent with usual
practice and was not harassment.
[91] It is alleged that Sergeant Heggie made a comment that implied COs from
Toronto hide in Sub Control and are afraid to work on the floor. The grievor
transferred from Toronto to SWDC. It is not alleged the comment was directed at
the grievor. This event, standing alone, does not constitute harassment.
[92] It is alleged that, in May 2016, Sergeant Matt Parr said out loud while standing
behind the grievor: “I need a rim job.” The Employer filed a will-say statement by
Matthew Parr, in which he denies saying: “I need a rim job” or anything to that
effect. Given my finding above concerning credibility I accept Sergeant Parr’s
evidence and find that the statement was not made.
[93] It is alleged that CO Desjardin made a comment, that did not relate to the grievor,
to another CO that was inappropriate for which she immediately apologized. The
grievor felt uncomfortable. I find a single comment not directed at the grievor that
was immediately followed by an apology is not harassment.
[94] It is alleged that, on November 29, 2017, CO Luckie asked him how he knew CD.
CO Luckie told the grievor that while CD was in SWDC he was saying very
negative things about the grievor. The grievor himself states that CD was saying
negative things about him while in SWDC. CO Luckie conveying to the grievor
information he already knew is not harassment.
[95] The grievor was on community escort with CO Burgess when she told him that,
when CD was at SWDC, CD asked CO Burgess if she liked to party to which she
replied: “What do you mean?” CD replied: “It must be a CO thing.” CO Burgess
looked at the grievor as if for an explanation. Even if this comment is considered
in the context of the grievor’s assertion that his workplace was poisoned by CD
spreading rumours about him partying, this comment either on its own, or
combined with the Sergeant Heggie comment above, does not constitute
harassment.
- 18 -
[96] On April 5, 2017, an Assistant Deputy Minister emailed the grievor and advised
him that his complaints had been forwarded to the Western Regional Office for
review. The allegations raised by the grievor in his March 30, 2017 email were
never investigated.
[97] In final argument, Employer counsel began closing submissions with a detailed
review of the documentary, oral and video evidence with a view to establishing
each of the 24 events relied upon by the Employer in order to establish just
cause for discharge. While the review was extremely helpful in pulling all of the
evidence together, I have not replicated this portion of counsel’s argument
herein. My findings of fact are as set out above. I have further not replicated
counsel’s argument as to the lack of credibility on the part of the grievor. I have
accepted counsel’s submissions on this point for the reasons set out above.
[98] The Employer argues the grievor’s conduct was wholly inappropriate. In terms of
the presence of absence of mitigating and aggravating factors, the Employer
points to the grievor’s lack of credibility and failure to show remorse for his
conduct. The Employer submits that the grievor lacks insight into how his
conduct impacted his co-workers, CO Allard and CO McIntyre, both of whom
testified they would not work with him again.
[99] The Employer relies on the provisions of the Code of Conduct and
Professionalism as establishing the standards COs are required to adhere to and
the evidence of Superintendent Davis that, in his 30 plus years in corrections, he
has never seen an officer act in this manner. Many women in prison have been
victims of trauma and abuse. The very purpose of the direct supervision model
in place in SWDC is for the COs to be able to model appropriate behaviours for
the inmates thereby improving their chance of success upon release. The
Employer argues that the grievor’s conduct on November 30, 2016 is completely
antithetical to that goal. The grievor’s conduct utterly failed to come anywhere
close to the standard required.
[100] It is argued that the grievor did not own up to his wrongdoing. He tried to blame
Nurse Dupuis and CO McIntyre for his misconduct. He lied to his partner, CO
Allard.
[101] The Employer relies on OPSEU and Ontario (MCSCS)(Bijowski) October 25,
2012 (Dissanayake) for statements set out at paragraphs 101- 104 concerning
credibility as well as the following comment at paragraph 111 on the issue of
substituting a lesser penalty:
For the Board to even consider substituting a lesser penalty, there had to be
evidence that the grievor had realized the seriousness of his misconduct, that he
had taken unconditional responsibility for his actions and exhibited genuine
remorse.
[102] The Employer submits that the grievor lacks remorse and does not appreciate
the seriousness of his misconduct. The grievor denies that his behaviour could
- 19 -
be perceived as sexual in nature and takes no accountability for his actions. It is
submitted that, when, at the allegation meeting, he was given a chance to explain
his conduct, he tried to blame everyone else. The Employer argues that the
grievor did not tender an apology or express any remorse at the hearing. Rather,
the grievor attempted to deflect his own culpability by raising false allegations
against Superintendents Baxter and Davis. The grievor’s conduct had an
adverse impact on CO McIntyre and CO Allard but the grievor has offered no
apology to them. The grievor suggests at the allegation meeting that, if he were
a white female, he would have been dealt with differently. He refuses to see the
gravity of his misconduct on November 30, 2016 and looks for an explanation
other than his own behaviour. After a lengthy examination of the grievor’s
behaviour, all he could muster by way of what he has learned is that, when he is
not feeling well, he will not go in to work.
[103] The Employer submits that the grievor has an inability to distinguish right from
wrong. He fails to appreciate the importance of the rules; even the fundamental
obligation to be honest with his Employer and by extension the GSB. The
Employer simply cannot risk having the grievor as an employee.
[104] The Employer points out that the hearing was once adjourned for a lengthy
period of time in order for the grievor to undergo an independent medical
examination with a view to providing a medical explanation for his behaviour. No
medical report was produced and hence it is apparent that there is no medical
explanation. There is no evidence that the grievor ever received counselling.
The only evidence as to the grievor’s medical state at the time is his own
subjective views. In the Employer’s submission such evidence is self-serving,
and no weight can be placed on it.
[105] The Employer challenges the grievor’s suggestion that his conduct was
somehow the result of his not being supported by management. This excuse is
irrelevant – none of the things he complains about could have affected his ability
to see right from wrong or caused him not to understand the rules and the
fundamental obligation to be honest. In Employer’s submission not only are the
grievor’s allegations of harassment and discrimination irrelevant, his 11th hour
call for an investigation is vexatious.
[106] In support of its position that the grievor’s conduct warrants discharge the
Employer relies on New Brunswick (Department of Justice and Public Safety)
and CUPE, Local 1251 (Lewis) (2016), 273 L.A.C. (4thj) 84 in which an employee
with 25 years of service was discharged as a result of one profane and
aggressive interaction directed towards a co-worker. The grievor’s version of
events given at the arbitration hearing was found to lack credibility and the
grievor demonstrated no appreciation of the conduct he had engaged in and
displayed no insight into his actions. Discharge was upheld. The Employer
submits that the grievor in this instance was untruthful and does not appreciate
the gravity of his misconduct. Further, it is the employer’s submission that the
grievor’s misconduct in the instant matter is much worse than that of the grievor
in New Brunswick (Department of Justice and Public Safety), supra.
- 20 -
[107] The Employer argues that while there are no mitigating factors present, there are
aggravating factors. The first aggravating factor is the vulnerability of the
inmates as mentioned in the letter of termination. The inmates in issue are a
vulnerable population with many of them having been victims of sexual abuse.
There is a real potential of revictimizing these vulnerable inmates. Inmates
should never be placed in the position of having to be exposed to his sexually
harassing behaviour. To say that a sexual comment, such as that made about
frisking the inmate, was laughed at does not excuse the behaviour – is it so
obviously the case he had power over her, and she was powerless to object.
The Employer relies on Brendan Cheung and Treasury Board (Correctional
Service of Canada), 2014 PDLREB 1 at paragraph 74 wherein it was stated:
74 I find that the employer has established that CD 577 is part of a larger
program that it has, as a result of much study and experience, instituted in
federal correctional facilities for women in order to advance the interests of
female inmates, a large percentage of whom have suffered physical or sexual
abuse, have addiction problems or who suffer from mental health issues, I find
that female inmates are a particularly vulnerable and historically disadvantaged
group and that fulfillment of the employer’s responsibility to them was the source
of CD 577.
[108] The Employer argues that the second aggravating factor is that the misconduct in
issue involved giving the inmates contraband. The cake from outside the
institution, the perfume and the latex gloves were all contraband. In this regard,
the Employer relies on OPSEU and Ontario (MCSCS) (Bellamy/Brown) July 7,
2011 (Petryshen) in which Messrs. Brown and Bellamy were discharged from
their employment as COs for permitting the passing of contraband between two
units. Both admitted that they observed the movement of contraband from one
unit to another without doing anything about it, including informing anyone about
the incident. The issue of contraband, the dangers it creates, and the
seriousness of offences involving contraband are discussed at paragraphs 5 and
16 as follows:
[5] Given the role that the contraband issue plays in this case, it is also useful at
this point to comment on the significance of contraband in a correctional setting.
Contraband is defined essentially as unauthorized property in the possession of
an inmate. Items such as drugs, tobacco, materials that could be used as
weapons and even food in certain contexts fall within the definition of contraband.
Superintendent Campbell described the institutional concern about the presence
of contraband and the policies that relate to contraband. I was also provided with
some decisions that address why contraband creates difficulties within a
correctional institution. These sources illustrate that contraband is detrimental to
the safety and welfare of inmates and employees and to the overall security of
the institution. Superintendent Campbell described how even food items and
tobacco can lead to disputes among inmates which can develop into physical
confrontations that in turn create a risk for correctional officers. The Judge in R.
v. March, cited below, noted that “The presence of contraband in an institution
often leads to violence and extortion.” Given the risks to employees and
inmates, there are a number of policies at the Chatham Jail that deal with
contraband. Without referring to them specifically, I simply note that correctional
- 21 -
officers are obliged to be vigilant to the presence of contraband and to conduct
searches and remove contraband from inmates and to report on an inmate’s
conduct in relation to contraband. Inmates can be issued misconducts for the
possession of contraband. Superintendent Campbell testified that the failure of a
correctional officer to deal with contraband appropriately may lead to an inmate
blackmailing the correctional officer into committing further violations of the rules.
Correctional officers are trained to deal with all facets of the contraband issue.
There was no suggestion that Mr. Brown and Mr. Bellamy were unaware of their
obligations and the policies concerning contraband.
...
[16] I begin my determination of this matter by considering the seriousness of the
offences committed by Mr. Brown and Mr. Bellamy. As I noted previously, the
Union, Mr. Brown and Mr. Bellamy concede that there was serious misconduct in
this instance. However, it is useful to review the precise nature of their
misconduct. They did not make any attempt to confiscate the string when it was
first observed so as to prevent the movement of contraband. I agree with
Employer counsel’s assessment that it was inappropriate for Mr. Bellamy to
experiment with the movement of contraband in order to see if the inmates would
succeed in moving an item from unit 2 to unit 3. Mr. Brown and Mr. Bellamy did
not ensure that the grill door remained closed. Although their failure to prevent
the movement of contraband is serious enough, their conduct after the
movement of contraband from unit 2 into unit 3 is particularly problematic. They
made no effort to retrieve the string and contraband by conducting a search after
the contraband moved into unit 3. They did not report the incident to their
supervisor, nor did they initiate discipline against inmate Christians. They did not
file an occurrence report of the incident, nor did they make a notation in the log
located at post #3. Their conduct amounts to a complete failure to comply with
their obligations when confronted with a contraband incident. It also amounts to
a breach of trust that arises from their position as a correctional officer. Given
that their actions or lack thereof involved contraband, it is appropriate to
characterize the misconduct as a matter concerning health and safety. By not
addressing the contraband issue appropriately, Mr. Brown and Mr. Bellamy
placed at risk the heath and safety of inmates, of other correctional officers and
of themselves. This makes what occurred on July 21, 2009 a particularly
significant and serious incident. It is evident that these two correctional officers
were unaware of what contraband was being passed from unit 2 into unit 3 when
the incident occurred. Mr. Bellamy testified that he thought it was crackers, but
he was probably wrong. Mr. Brown thought it was tobacco, but this was only an
assumption on his part. Mr. Brown agreed with Mr. Micucci’s suggestion that
they would have been responsible if an inmate ingested something and died in
unit 3. In one sense, it was fortunate for Mr. Brown and Mr. Bellamy that their
conduct did not result in harm to an inmate or to a correctional officer. I have no
hesitation in concluding that Mr. Brown and Mr. Bellamy engaged in serious
misconduct and that the Employer had cause to discipline them.
[17] I have considered the usual factors arbitrators take into account when
assessing whether there is a basis for substituting a lesser penalty, including the
matters referred to by Union counsel during his submissions. I have considered
the economic hardship Mr. Brown and Mr. Bellamy have experienced as a result
of their discharge. I have also considered their admission to the investigators
that they did engage in misconduct. I note however that such an admission is
- 22 -
less significant when their conduct has been recorded on video and they are so
advised before they admit to the inappropriate conduct. I have also taken into
account that Mr. Brown and Mr. Bellamy had not been disciplined previously,
although I also recognize that this factor is less significant for employees with
little seniority. Although these factors favour the substitution of a lesser penalty, I
am not satisfied that they tip the balance in favour of such a result when viewed
in the context of all of the circumstances in this case.
[109] The adjudicator determined that, in light of the seriousness of the misconduct
and their limited service (approximately 4 years and 1 year) that discharge was
the appropriate penalty in the circumstances.
[110] The Employer argues that, because the grievor’s misconduct involves
contraband, it is of a very serious nature. Giving contraband to one inmate, and
not others, can lead to fights, and contraband, such as the gloves, can be used
to move illegal and dangerous substances through the institution. The grievor
created an unsafe situation by handing out the latex gloves which two other COs
then had to retrieve from the inmates. In this case, the Employer argues, you
have the very antithesis of being vigilant to getting rid of contraband; you have
the grievor saying the inmates asked for gloves so he handed them out – and he
assisted the inmates in ripping the gloves apart; gloves that can be used to move
drugs, tobacco or other items of high value through the institution creating a
danger to staff and inmates.
[111] A further aggravating factor relied upon by the Employer is that the grievor took
steps to conceal his misconduct from CO Allard by waiting for CO Allard to be on
her break and a more junior officer being in the unit to engage in his misconduct.
Additionally, the grievor was quick to place blame on others; he alleges that
Nurse Dupuis told him to go spray the pillows and CO McIntyre said he could
hand out the cake. The grievor was not entirely truthful and showed no remorse
for his conduct. He offered no apology.
[112] In contrast, it is argued that there are no mitigating circumstances present in this
case. While the grievor relies on a medical excuse, no medical evidence was
presented to reduce or remove his culpability.
[113] In respect of the grievor’s allegations that he was not supported by management
the Employer refers to the complaint as vexatious, having been filed two days
after the March 28, 2017 allegation letter was couriered to his home. The
Employer asserts that this complaint is basically a rehashing of the complaint
withdrawn by the grievor in May 2016. Notwithstanding that he had been told at
the May 2016 meeting to bring any further issues forward to the attention of
management, none of the issues listed in his March 30, 2017 complaint that post-
date the May 2016 meeting had been raised by the grievor. The Employer asks
that the complaint be found to be irrelevant and vexatious. In this regard the
Employer relies upon Nowoselsky v. Canada (Treasury Board), 2001 PSSRB 18
at paragraph 240:
- 23 -
240. While I believe I have considered all the relevant circumstances and they
are all significant, the grievor’s persistence in claiming he did no wrong, his
failure to respond in a forthright manner in the first instance to his employer’s
concerns, and his completely unjustifiable attempts to blame, undermine and
malign the employer’s management are major factors in my decision to refrain
from reinstating him in any position with the employer notwithstanding his lengthy
employment, previously good employment record, and his illness. There can be
no doubt that reinstatement is not an appropriate option.
[114] The Union stressed that it is important to look at the context of this very unique
case. The grievor had been a CO for nine years and, up until 2015, had not
received any discipline. In 2015 something changed. The Union states that in
2015, the grievor became involved in an abusive relationship and it affected his
self-esteem and he was also being harassed and discriminated against at work.
He filed a WDHP compliant and, while the Union does not take issue with the fact
it was withdrawn, the Union submits it ought to be considered that he was talked
into withdrawing it by his local union representative and, it was because his local
union representative told him he was a target, that he accepted the discipline
with respect to the Facebook posting.
[115] While at work, the grievor continued to have the problems with his co-workers
that he outlined in his evidence as well as in the March 30, 2017 email. The
March 30, 2017 email was not vexatious but rather a reasonable action for an
employee who felt alone and isolated. He had been out of work on suspension
without any insight as to what had occurred.
[116] The grievor testified that, on November 30, 2016 he did not feel like going to
work that day, however, he did go and that turned out to be a bad decision. The
grievor had booked off all of December 2016 to get himself together. He was
under signification personal stress; his family was not speaking to him; and he
had just gotten out of an abusive relationship. The grievor did not want to be at
work but he went, and he stayed.
[117] In response to the Employer’s submission that the grievor has not demonstrated
sufficient insight and is not credible, the Union submits that, when you compare
his responses in the allegation meeting, against his testimony on the stand, there
is a very good reason for differences. The grievor did not see the video until after
the allegation meeting. The grievor was not shown the video even though the
Union had requested a break to see the video. At the allegation meeting the
grievor was charged with answering the allegations without seeing the video. In
the Union’s submissions that is a violation of COR10. The Employer should have
rescheduled the meeting to provide the grievor with the video. Given the serious
conduct that the grievor is alleged to have engaged in, the parties could have
adjourned the meeting and rescheduled to a point in time later after the grievor
had seen the video. The video is helpful to understand what occurred and, by
not allowing the grievor to see the video, the Employer put the grievor at a
considerable disadvantage. There were changes in the grievor’s statements, but
they were not so much changes as they were clarifications.
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[118] Also, the grievor agrees his behaviour was not appropriate that day and, while he
has maintained it was not sexual, he says he is not sexually attracted to women
and so he honestly believes they were not sexual, and he agrees they were not
appropriate. He was shaking and moving his body with no sexual intent.
[119] It may be that the Board views the gestures as sexual, but the Union submits
that, what is more relevant is whether the grievor thinks the gestures were
appropriate and he agrees they were not. He also said, if he were feeling that
way again, he would not go to work – the grievor recognizes that he cannot go to
work if he is not feeling well.
[120] The grievor described his behaviour that day as off. He had never had a day like
this because there was a lot going on. He had moved to Windsor to be with his
family and his family had disowned him. He felt lost and lonely and did not feel
supported by his Union or co-workers and all of that led to the behaviour on the
video. The grievor spoke of being depressed, his place a mess, and his laundry
not done.
[121] The Union asks that, even if the grievor did not articulate as eloquently as one
might have liked, remorse and regret, his testimony is clear that he knows this is
behaviour that should not have occurred and he has demonstrated accountability
and insight and that should be taken into consideration.
[122] With respect to the March 30, 2017 email, the Union submits it is a WDHP
complaint and disputes the Employer’s submissions that it is vexatious. The
Union submits that the testimony of the grievor is that, any time he had concerns
in the workplace, the Union local talked him out of pursuing them. No one would
listen to him. So, he decided to send the March 30, 2017 email which was
similarly dismissed by the Employer. The Employer did not give any thought to
the March 30 complaint because they assumed the matter was dealt with by his
dismissal. As a result, we do not know if the grievor was harassed because the
Employer closed their eyes and ears to his complaint and now the actions
against the grievor are being tacitly endorsed by the Employer not conducting an
investigation.
[123] The Employer relies on the fact that the grievor withdrew his first WDHP
complaint to say that there was no workplace harassment but, in the Union’s
submissions, the Employer ought to have been alert to fact that, when he told
them everything was fine, nothing had happened to resolve the issues. The
Employer could have checked in on him, but they did not. Deputy
Superintendent Smith said she had no interaction with him after the May 2016
meeting.
[124] On November 30, 2016, the grievor was a man alone, isolated, and unsupported
in the work place, who acted out and now says his behaviour was not
appropriate. The grievor is a lot better now, comfortable with who he is, and he
knows he should not go to work when he is not feeling well.
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[125] The Union submits that, in light of the lack of any progressive discipline, the
insight the grievor has demonstrated, and his attempts to explain his behaviour
on that day after he saw the video, if discipline is warranted, it should be a lesser
penalty. The Union does not dispute that female inmate population is vulnerable,
but it does not follow that termination is the immediate response. The Union
relies on the following cases involving employees with responsibility over
vulnerable persons, who engaged in misconduct on a single day, and were
ordered reinstated by the arbitrator.
[126] In OPSEU and Ontario (Ministry of Community Safety and Corrections Services)
(Paplinskie) (2016), 290 L.A.C. 1, a CO, who had recently moved to the Brantford
jail where there was a significant number of indigenous inmates, allowed a
prisoner to keep contraband consisting of a necklace made of human teeth which
the inmate had said was a family artifact and the officer accepted that
explanation. It was later realized the teeth were those of another inmate. In
addition, the CO gave an inmate a key to the laundry room affecting the safety of
the institution. It was clear that, on that day, the grievor engaged in very poor
decision making.
[127] The arbitrator was not persuaded that the employer-employee relationship had
been breached beyond repair and directed the grievor reinstated with no
compensation. The Union asserts that, as in Paplinskie, the grievor exercised
poor judgment on November 30, 2016 and has now said that he will not return to
work if he is not feeling well. The Union states that, as in Paplinskie, where the
fact that the grievor was confronted with marital issues was taken into account, it
is appropriate to take the grievor’s personal issues into account as a mitigating
factor. Further, the Union argues that in Paplinskie, no medical evidence was
called, but the arbitrator accepted the grievor’s testimony about his health and
the factors that effected his behaviour. The grievor in Paplinskie had only seven
years of employment and a three-day suspension on his record; less service than
the grievor in the instant matter and a more significant disciplinary record.
[128] In OPSEU and Ontario (MCSCS) (Maude), (2016) 269 L.A.C. (4th) 38 a CO with
28 years of service punched an inmate, who was lying face down with his arms
handcuffed behind his back, in the back of the head. He did not report it
immediately. The incident constituted use of excessive force. The arbitrator
considered the significant emotional and financial impact of the discharge on the
grievor to be factors that favoured a penalty less than discharge and reinstated
the grievor to a position at the HWDC.
[129] In O.S.S.T.F, District 17 v. Simcoe (County) District School Board (2011), 215
L.A.C. (4th) 15, the grievor was a teacher who struck a student on the face. The
teacher pleaded guilty to the criminal charge of assault in exchange for a
conditional discharge. The student was developmentally delayed and thus a
member of a vulnerable population in respect of which a higher standard of
behaviour is expected. The grievor did not immediately report that she had
slapped the student and, the arbitrator notes at paragraph 98, that the grievor’s
evidence “suggested a minimization of the event.” In the course of discussing
- 26 -
penalty, the arbitrator noted the vulnerability of students and that the grievor had
difficulty in coming to terms with the significance of what she had done.
[130] The arbitrator applied the factors relevant to assessing the justness of discharge
of a teacher set out at paragraph 23 of Simcoe District School Board v. OSSTF
(Artichuk), unreported August 12, 2008 (Kennedy) and substituted a lengthy
suspension for discharge. The Union submits that, even if, as the Employer
argues is the case, the grievor has minimized his behaviour, it is possible for it to
be determined that the risk of reoccurrence is low. In the present case the
grievor is now self-reflective and, even if it is found he has minimized his actions,
that does not necessarily lead to a finding he cannot be reinstated.
[131] Finally, the Union relies upon Calgary (City) and CUPE, Local 38 (Messenger),
(2017), 293 L.A.C. (4th) 353 in which a Community Peace Officer sent a vulgar
message as a joke via the employer’s email system and removed a confidential
and sensitive document from his supervisor’s desk, photographed it and
distributed copies to his colleagues. At paragraph 102 the arbitrator found that
Peace Officers are held to a high standard of conduct, it was also appropriate to
take into account the context within which the conduct occurred as well as the
realities of human frailties and human fallibility. In assessing whether discharge
was an excessive response, the arbitrator noted: the grievor had an eight-year
unblemished service record; he accepted responsibility at the earliest possible
moment and apologized; shows insight into his misconduct; was under severe
personal stress and anxiety at the time that contributed to the grievor taking the
document; and there had been no formal progressive discipline. Discharge was
reduced to a one-year suspension.
[132] The Union submits that, in this case, the grievor was sent home on November
20, 2016 with no explanation and, after having been on suspension for four
months was called into an allegation meeting where he was not given the chance
to view the video and required to answer questions about a day months in the
past when he was not feeling well. The Union argues that the grievor’s evidence
at the hearing and the particulars he prepared after he had a chance to see the
video demonstrates he knows he should not have gone to work that day. The
Union states that while there is no medical evidence, the grievor testified about
the stress and loneliness he was feeling and how it contributed to his behaviour.
[133] Distinguishing the facts of this matter from the cases relied upon by the
Employer, the Union submits that this matter does not involve misconduct over a
lengthy period of time. It is behaviour on a single day with no planning or
forethought or deliberate action. The events occurred in full view of the cameras
and his co-workers. There was no attempt to hide what he was doing. If there
was any shift in the grievor’s explanations it is because he was not afforded the
opportunity to view the video at the allegation meeting. Further this case is born
out of the grievor’s own personal circumstances and not from any animosity
towards his co-workers or the inmates. Unlike other cases where the grievor’s
have ready support from the union, in this case, we have someone who felt he
was not supported by the union. He had booked off the entire month of
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December as a result of the loneliness and harassment he was feeling. Then he
found himself removed from institution on a suspension, so he put in his
allegations of harassment in the email.
[134] Separate and apart from the issue as to whether the Employer had just cause for
dismissal, the Employer still has an overall obligation to ensure workplace free of
harassment and that obligation does not end because the Employer thinks the
employee has engaged in misconduct; these issues comprise two separate silos.
The Employer still had an obligation to turn their minds to the grievor’s
complaints and also to turn their minds to whether it was a mitigating factor in his
misconduct.
[135] The Union asks that the board find that the Employer: did not meet its obligations
under the Occupational Health and Safety Act by failing to investigate the
grievor’s compliant; did not have just cause for dismissal; and violated COR10
when it failed to provide the grievor with an opportunity to view the video, after
being asked to do so, at the allegation meeting.
[136] In reply, the Employer denies that there was a violation of COR 10 as the
Employer did notify the Union of the video and, upon being asked at the
allegation meeting for a copy of the video, the Employer provided the video to the
Union as soon as practicable which, because the video was not at the meeting,
was after the meeting. The Employer notes that the Union was advised long in
advance of the allegation meeting that the video was to be relied upon and yet no
request for the video was made until the parties were assembled at the allegation
meeting.
[137] The Employer takes issue with the Union’s suggestion that the changes in the
grievor’s answers to the allegations at the allegation meeting and at the hearing
can be explained by the fact that he did not have an opportunity to view the video
at the allegation meeting. At the allegation meeting the grievor admitted to
throwing food items at an inmate. He stated: “I agree I did that.” Yet at the
hearing, when he knows the answer is incriminating, the grievor contends that he
cannot recall. This change belies the assertion that viewing the video brought
clarity to the allegations against him. The Employer maintains that the grievor
provided self-serving evidence and tried to deflect blame when he knows the
answer is damaging.
[138] The Employer also takes umbrage with the assertion the grievor was not trying to
conceal his behaviour. Most of the conduct occurred while CO Allard was out of
the unit or on watch tour. The grievor hides behind his assertion that Nurse
Dupuis authorized him to spray the inmates’ pillows and that CO McIntyre gave
him permission to give out cake. Further the Employer submits that the conduct
was not impulsive or spur of the moment.
[139] With respect to the failure to consider the grievor’s March 30, 2017 complaint, the
Employer relies on the will-say of Superintendent Baxter wherein it is stated that
the first complaint was investigated, dealt with and closed. At the May 2016
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meeting the grievor was advised to bring any further complaints to the attention
of management and no such complaints were brought forward. Each day, from
May to November 2016 the grievor worked, there was unit manager available
who he could have spoken to if he had complaints and he did not.
[140] The grievor gave no time frames for his family issues. The grievor arrived in
Windsor in 2014 and the misconduct upon which the Employer relies happened
in November 2016. A number of co-workers testified in this proceeding and none
of them were asked about harassment. The Union representative was not called
to speak to the lack of support from the local union. We have only the grievor’s
subjective views of his medical condition. While the Union has provided cases
where there was no medical evidence, this case is different in that it lay dormant
for a year so that the grievor could get medical evidence to rely upon. Such
evidence was never relied upon. The Employer asks that an adverse inference
be drawn given a report was sought and obtained but never relied upon.
[141] The allegations made by the grievor in his March 30, 2017 email all pre-date May
2016 except the one allegation against Sergeant Parr that, he heard him say “I
need a rim job.” This allegation is denied in a statement of Sergeant Parr filed in
evidence. The Employer asks that it be found that there is no possibility the
grievor could work as a CO, there is no violation of the OSHA and no obligation
to investigate his 11th hour complaint.
Analysis and Decision
[142] The facts of this case are unique. Throughout the day, on November 30, 2016,
the grievor engaged in juvenile antics and behaviours that one would never
expect to see in a detention centre. There is no question his behaviour was
inappropriate and unprofessional.
[143] As is evidenced from the submissions of the parties, the issue is not whether
misconduct warranting discipline occurred; the issue is what level of discipline is
warranted. In order to answer this question, it is necessary to determine the
seriousness of the misconduct engaged in and consider any mitigating and
aggravating factors. Did the grievor, as the Union submits, have a very bad day
bought on by the accumulation of workplace and personal stress, which is now
resolved, such that the very bad day is unlikely to reoccur, or, as the Employer
submits, did he repeatedly and deliberately flout policy creating safety risks and
causing potential harm to inmates for which he has shown little appreciation such
that he ought not to be returned to work.
[144] I begin with the severity of the grievor’s conduct on November 30, 2016.
Drawing on the findings of fact set out above, the grievor’s misconduct on that
day consists of:
• Creating an unsafe work environment for his colleagues:
o Handing out contraband in the form of cake and latex gloves to the
inmates.
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o Becoming distracted such that, on two occasions, an inmate is able
to remove an item that constitutes contraband from the workstation.
o Condoning, encouraging and not stopping inappropriate behaviour
amongst the inmates including the incident where an inmate slapped
AB in the groin, and AB pushing paper off of the workstation desk.
o Knowing about a glass bottle of cologne on the unit and not reporting
it.
o Spraying the cologne on pillows and the inmates.
o Lying to CO Allard about having sprayed the cologne.
o Leaving RN Dupuis unattended in the unit while he sprayed the
cologne on pillows.
o Undermining, and modelling disrespectful behaviour, towards
Sergeant Taylor.
o Giving preferential treatment to a few inmates by giving cologne and
cake to AB and few others.
o Allowing an inmate to watch how he activates a watch tour on the LU
monitor.
• Engaging in sexually inappropriate behaviours:
o Making groping motions with his hands.
o Mimicking the sex act both while standing looking at the inmates and
seated at the workstation talking to the inmates.
o Saying, in a suggestive manner, that he should frisk a female inmate
while making groping motions towards her.
o Spraying AB in the groin with cologne.
o Placing the lamp over his groin and switching it on and off while
talking to inmates.
o When asked for a pad of paper, putting it between his legs, and
inviting AB in a suggestive manner to reach for it.
• Engaging in inappropriate behaviour and modeling inappropriate
behaviour:
o Touching AB on the thigh.
o Rubbing AB in the face with a paper plate.
o Flicking AB’s hair with a plate.
o Allowing an inmate to look at the computer screen with OTIS open.
o Calling Sub Control on speakerphone for no purpose other than the
inmates asked him to do so for a joke.
o Tossing paper plates in the direction of the inmates.
o Bouncing up and down in his chair while making noise with paper
plates with seeds between them.
o Rolling around in the office chair.
o Making odd gestures while standing in front of the inmates such as
shuffling his feet while flapping his arms.
o Placing paper plates on an inmate’s shoulders and watching them
fall.
o Tipping AB’s chair forward.
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o Giving coffee/tea/sugar obtained from the staff room to one inmate in
a secretive manner.
o Jokingly spraying two inmates in the face with cologne.
o After standing and turning his back to the inmates putting a plastic
ruler down the back of his pants.
[145] For the reasons that follow, it is my determination that the foregoing misconduct
is serious and, given that the grievor does not grasp the potential serious
consequences that could flow from his conduct, and the fact that he tried to
deflect responsibility by blaming others, I am not confident that he would not
commit similar acts again if returned to work. Further, I am not persuaded that
the fact that the grievor was under workplace and personal stress on November
30, 2016 removes his culpability. His actions were: deliberate; they were not
spur of the moment; they continued over the course of 12 hours; and there was
some pre-planning as most of the events occurred when CO Allard was out of
the unit. I have no evidence that such actions are caused by stress. As argued
by the Employer, the significant stressors, his relationship with CD and his
estrangement from his parents, happened at least a year and seven months
before November 30, 2016.
[146] As the cases relied upon by the Employer state, contraband is detrimental to the
safety and welfare of the inmates, employees, and the overall security of the
institution. Handing out items to a select few inmates can result in physical
confrontations between inmates that can in turn create a risk to officers. COs are
required to be vigilant and remove contraband from inmates. Where an officer
does not deal with contraband appropriately it could lead to an inmate
blackmailing the officer into committing further violations of the rules. Clearly,
handing out contraband, especially latex gloves that can be used to move illegal
and dangerous items through the institution, is a serious offence. Unlike the
Bellamy/Brown, supra, case, where the discharge of an employee with four years
of service who had not reported seeing contraband in the institution was upheld,
this case involves a grievor who handed out the very gloves so often used to
move contraband through the institution and then placing two of his co-workers in
the difficult position of having to demand their return from the inmates.
[147] The grievor does not seem to grasp the safety risks his conduct creates for his
co-workers and it is especially concerning that, when confronted with such risks,
the grievor attempts to redeem himself by blaming his co-workers. When he fails
to fulfill his duty of providing protection to RN Dupuis, he claims she told him to
go spray the inmates’ pillows when the video shows no point at which RN Dupuis
could have made this comment before the grievor left her side. When he hands
out cake from outside the institution to AB and another inmate, he says that CO
McIntyre, who has seven months seniority, and with whom he had never worked
before, gave him permission. Instead of recognizing his failure to fulfill his duties
he blames others and proffers excuses. The grievor further lied to CO Allard
about having sprayed the cologne thereby putting her at a disadvantage in being
able to do her job and undermined the authority of Sergeant Taylor in the eyes of
the inmates by making fun of him behind his back for the inmates’ amusement.
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[148] The evidence given by CO McIntyre and CO Allard is telling. CO McIntyre
testified that she felt extremely uncomfortable while working alongside the grievor
as she felt that his conduct was not at all suitable or warranted in the workplace.
CO McIntyre testified that she was overwhelmed and unsure of whether this was
his usual behaviour on the unit. According to CO McIntyre: “I felt I was alone and
did not have any support.” CO Allard testified that the grievor’s conduct “caused
me to question my trust for him.” In connection with the incident where the
grievor handed out latex gloves, CO Allard testified that she was angry, the
grievor knew better, and she could not believe it. She believed he deliberately
waited for her not to be around to hand the gloves out. CO Allard stated that the
grievor put her in a bad spot when he handed out the gloves. With 32 inmates
and two officers, she needed to know he had her back; she needed someone
she could trust. When asked if she would work with the grievor again, CO Allard
said that he had put her safety in jeopardy, and she would not work with him
again.
[149] It is trite to say that safety in a detention centre is a high priority. While the
grievor’s actions may, on their face, appear relatively harmless, they undermine
the authority of officers in the eyes of the inmates, put the officers in a less safe
environment and deny officers the layer of safety working with a partner is to
provide. Being a CO is a dangerous job and each CO is entitled to work with a
partner they can rely on and trust. I find the grievor’s actions, in so far as they
reduce the safety of the institution, serious.
[150] Layered on top of the safety issue is the grievor’s conduct that is sexual in
nature. A high percentage of female inmates in the SWDC have suffered trauma
and abuse, including sexual abuse. As CO McIntyre testified, a “trauma based”
approach, is to be adopted by COs. Officer McIntyre testified that the grievor
communicated and acted in a way that is sexual in nature which could be
offensive or traumatic to the inmates involved: “I felt his behaviour was
unprofessional and could be traumatizing for those who were victims of abuse.”
The details of his behaviour are set out above.
[151] The grievor states that he does not see his conduct as being sexual in nature
and, because he is gay; he does not see himself as behaving that way towards
the female inmates. This statement misses the point. Sexual abuse and sexual
harassment are not about attraction; they are about power. Sexual harassment
is used as a tool to assert superiority; it is used to tell women they are inferior. It
is startling to hear the grievor explain that his groping motions towards an inmate
and request to frisk her were not as serious as CO McIntyre interpreted them
because the inmate laughed. The grievor lacks awareness that a woman who
has suffered abuse and harassment has also very likely been conditioned not to
complain.
[152] The grievor subjected the inmates to inappropriate, unnecessary and potentially
traumatizing sexual behaviour when he joked about frisking the inmate; put the
pad of paper that AB had requested, and was entitled to, between his legs and
- 32 -
told her to take it; put the lamp on his groin and flicked in on and off; flicked AB’s
hair and touched her thigh; made groping gestures and made motions mimicking
the sex act. The grievor does not recognize the impact of his behaviour or that it
is inappropriate regardless of the inmates’ reaction. I find the grievor’s sexually
inappropriate conduct to be a serious offence.
[153] The grievor also engaged in many other actions that were inappropriate and
failed to model proper behaviour. While any one of these other incidents might
not, on its own, be worthy of significant discipline, when viewed in combination,
they are certainly of concern. The grievor’s conduct towards AB, touching her,
tipping her chair and rubbing a plate in her face, all cross the line that is to be
maintained between CO and inmate. His antics, consisting of rolling around in
his chair, turning paper plates into tambourines and shaking them, bouncing up
and down in his chair, and making crank calls to Sub Control, do nothing to
maintain the authority and respect of his position. Selectively handing out coffee
and cake will do nothing to maintain inmate harmony in the unit. While this
behaviour might be described as horsing or joking around it is not without
potential impact. A detention centre is not a playground; it is a facility that
houses convicted criminals. A detention centre does not seek to merely
incarcerate; it hopes to have the inmates return to the general population with
better life skills. This is done through having the inmates follow appropriate
behaviours, be exposed to proper behaviours, and certainly not by subjecting
them to inappropriate ones.
[154] The Union argues that the grievor is not entirely responsible for his behaviour as
he was suffering from workplace and personal stress. I accept that the grievor
was likely under some stress at the time, but I do not accept that such stress
caused his behaviour. As indicated above, the most traumatic incidents, his
estrangement from his parents and his abusive relationship with CD, happened
at least a year and seven months before November 30, 2016. Further, the
grievor’s conduct was not spur of the moment, it was deliberate and, given that
the grievor waited for CO Allard to leave the unit to engage in most of the
conduct, it was planned. It is not a commonly known fact that stress can cause a
person to act the way the grievor did on November 30, 2016 and there is no
evidence before me to such effect. I cannot conclude that his actions are the
result of stress.
[155] For all of the reasons set out above, I find the misconduct engaged in by the
grievor on November 30, 2016 to be serious. Any stress he may have been
experiencing on that day does not reduce his culpability. He was not entirely
truthful in his testimony and sought to reduce his own responsibility by blaming
others. He does not appreciate the potential consequences of his misconduct.
As such I am not confident that, if returned to work, the grievor will not engage in
similar behaviours again. As a consequence, I find discharge to be the
appropriate penalty.
[156] The Union also seeks a declaration that the Employer violated COR10 as a result
of its failure to stop the allegation meeting when the Union asked for a copy of
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the video and reschedule the meeting for a point in time after the video was
provided. The Union was given notice that the Employer had the video, and
intended to rely on it, months in advance of the allegation meeting. It had ample
time to ask for the video before the allegation meeting took place. I find it was
not a violation of COR10 for the Employer, when asked at the allegation meeting
for the video, to continue with the meeting and provide a copy of the video to the
Union after the meeting, as it did.
[157] Lastly, the Union seeks a declaration that the Employer violated the Occupational
Health and Safety Act (the “OHSA”) and the collective agreement by failing to
investigate the grievor’s second WDHP complaint made by way of his March 30,
2017 email. The OHSA provides as follows:
32.0.7(1) To protect a worker from workplace harassment, an employer shall
ensure that,
(a) an investigation is conducted into incidents and complaints of workplace
harassment that is appropriate in the circumstances;
(b) the worker who has allegedly experienced workplace harassment and the
alleged harasser, if he or she is a worker of the employer, are informed in
writing of the results of the investigation and of any corrective action that has
been taken or that will be taken as a result of the investigation; …..
[158] In the present case, there is no dispute that the Employer did not conduct an
investigation of any sort into the grievor’s March 2017 complaint. The Employer
argued that the complaint was vexatious as it was filed two days after getting the
allegation letter. The fact that the complaint was filed on the heels of the
allegation letter may go to the credibility of the allegations, but I find that it does
not render the complaint vexatious. I have reviewed all of the allegations
contained in the second WDHP complaint herein and, for the reasons set out
above, I find that the allegations do not make out a case of harassment. Had the
complaint been investigated it would have been found to be without merit.
[159] Section 32.0.7 (1) of the OHSA states that the purpose of an investigation is to
“protect a worker from workplace harassment” and 32.0.7(1)(a) states that the
investigation is to be “appropriate in the circumstances.” While it may seem
absurd to investigate a complaint filed by someone who will never return to the
workplace for reasons that are unrelated to the harassment complaint, it is
possible that a complaint may advance allegations that should be looked into by
the Employer in order to ensure the health and safety of the remaining
employees. Where the complainant will not be returning to the workplace and
the complaint is not related in any way to their reason for leaving the employer,
the investigation “appropriate in the circumstances” may be less extensive than
would otherwise be the case; however, some “investigation” is required. In this
case no investigation occurred and hence the Employer has violated section
32.0.7(1) of the OHSA and the collective agreement and I so declare.
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[160] For all of the foregoing reasons I hereby dismiss the first grievance alleging a
violation of COR10; uphold the discharge of the grievor; and declare the
Employer to have violated section 32.0.7(1) of the OHSA and the collective
agreement.
Dated at Toronto, Ontario this 3rd day of June, 2019.
“Diane L. Gee”
Diane L. Gee, Arbitrator