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HomeMy WebLinkAbout2017-2255.Cassidy.20-10-29 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2017-2255 UNION#2017-0467-0017 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cassidy) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian Sheehan Arbitrator FOR THE UNION Jane Letton (Counsel) Ryder Wright Blair & Holmes LLP FOR THE EMPLOYER George Parris (Counsel) Treasury Board Secretariat Legal Services Branch HEARING June 18, 2019; June 22, 25; July 6,15 and 24; August 10 11, 21 and 27, 2020 (by videoconference) - 2 - Decision [1] This Award concerns a grievance filed by Lance Cassidy (the “grievor”) challenging the Employer’s decision to terminate his employment as of October 24, 2017. Overview of the Factual Background [2] The grievor was employed as a Correctional Officer (CO) at the Quinte Detention Centre (QDC). He had been employed as a CO at QDC for more than 25 years. [3] At the time of his termination, the grievor had a 15-day suspension on his record for an incident in 2015 which involved the grievor engaging in an inappropriate and unnecessary physical action against an inmate, and for displaying unprofessional bullying and provoking conduct against an inmate. [4] The termination of the grievor related to his interaction with WN, who was at the time, an inmate at QDC. In particular, the October 24, 2017 termination letter issued to the grievor outlined two reasons for the termination: (1) the grievor “displayed unprofessional bullying, provoking conduct, exhibited unnecessary conduct, and used excessive force on an inmate; and (2) the grievor “failed to submit an Occurrence Report after being involved in an incident with an inmate”. [5] There is little in dispute regarding the background events associated with the incident giving rise to the grievor’s termination. The grievor was working a 6:30 p.m. to 6:30 a.m. evening shift in the Maximum 1B unit on the evening of May 9, 2017. There had been a “Level 2” search of the cells on that unit during the day shift. As a result of that search, not all the inmates in the unit had received showers as scheduled. WN was one of those inmates who had not yet received a shower. - 3 - [6] It was the evidence of WN that shortly after the commencement of the grievor’s shift he called out to the grievor advising that he had not yet received a shower. According to WN, the grievor responded that “he doesn’t give a fuck” and accused WN of banging on his cell walls and yelling. [7] The grievor retrieved the shower key and opened the cell where WN was located. Upon leaving his cell, WN went to an adjacent cell and obtained a bottle of liquid soap from a fellow inmate. It was WN’s evidence that the grievor then aggressively yanked the bottle of liquid soap from his hands stating that WN did not deserve it. [8] WN then proceeded to the shower area with the grievor following. It was WN’s evidence that upon him entering the shower stall, the grievor “belly bumped” him; such that, he was briefly pinned up against the end wall of the shower. WN claimed the grievor proceeded to declare “you’re lucky it wasn’t back in the day—it would be a bloodbath between us right now”. According to WN’s narrative of the events, upon asking the grievor for soap, the grievor told him he could “fuck himself” and that if he “didn’t like it, he could go to Home Depot”. WN claimed that during this interchange, the grievor’s spit came into contact with his face, but WN was not sure that the grievor had intentionally spat at him. [9] WN testified in the proceeding pursuant to a summons served upon him by the Employer. [10] The grievor’s version as to his interaction with WN on the evening in question was dramatically different. The grievor claimed he could not recall the initial interchange between himself and WN regarding WN’s request to take a shower. It was - 4 - his evidence after WN had obtained the liquid soap (which the grievor thought was shampoo) from the inmate in the adjacent cell he advised WN that he could not have it as there were institutional sundries. He acknowledged that he then took the liquid soap from WN but disputed that he did so in an overly aggressive manner and he denied telling WN that he did not deserve the soap. [11] The grievor acknowledged that he followed WN into the shower area. He claimed he did so, in fact, to see if there was any shampoo in the shower for WN, and upon checking, he observed there was shampoo but no soap. There is no dispute on the evidence that upon leaving the shower area, the grievor returned the liquid soap to the inmate that had given it to WN, and then immediately retrieved a bar of soap and provided it to WN upon his return. [12] The grievor denied WN’s evidence pertaining to the nature of their verbal interchange while he was in the shower stall with WN. It was the grievor’s evidence that in reference to the grievor not allowing WN to have the liquid soap, WN asked, “what is the big fucking deal Cassidy?” The grievor claimed he responded “the big deal” was that the unit had just been searched for contraband and the grievor would be in trouble if, in fact, the item WN had obtained from the inmate in the adjacent cell was contraband. [13] At the hearing, the grievor denied that he came into physical contact with WN, in any way, while they were in the shower area. He suggested that because of his large physical frame (height – 6 feet 5 inches, weight – over 330 pounds) and the relatively narrow parameters of the shower stall (35 inches by 66 inches), WN may have felt intimidated. - 5 - [14] As part of the Fact-Finding Investigation regarding the incident conducted by Deputy Superintendent Craig Hillen, when asked if he had pinned WN against the wall in the shower, the grievor’s initial response was “not intentionally”. He went on to state that if WN felt intimidated, he had no control over that as “there was no argument between them”. When then asked if he was of the view that entering the shower stall with an inmate was inappropriate, the grievor responded, “no, what I did is what I do”. [15] In cross-examination at the hearing, in addressing this apparent discrepancy as to whether, in fact, he had come into physical contact with WN, the grievor suggested that he was under a lot of stress when interviewed by Deputy Superintendent Hillen, and that, he was on edge because he was aware his job was in jeopardy, in light of the outstanding 15-day suspension. The grievor further suggested that at the time, he was seeking to mitigate the potential damage flowing from the Employer potentially concluding that there had been some sort of physical contact between him and WN. The grievor added that with respect to the Fact-Finding interview conducted by Deputy Superintendent Hillen, and the subsequent Allegation Meeting interview conducted by former Deputy Superintendent Ted Sheil (currently an Acting Assistant Deputy Regional Director), that he acted unprofessionally in the course of those interviews, and did not treat the Employer’s investigation process with the respect it deserved. [16] There were CCTV cameras that recorded the activity in the hallway corridor aligning the Maximum 1B unit. However, given the inherent privacy issues, there were no CCTV cameras recording the inmates’ shower area. A video recording was entered into evidence which displayed the interaction between the grievor and WN in the - 6 - hallway corridor before WN entered the shower area. That video also revealed that the grievor was in the shower area with WN for up to 14 seconds. [17] Management at QDC only became aware of the incident involving the grievor and WN on May 14, 2017. On that day, Sergeant Dave Terry attended at the Maximum 1B unit to address complaints by inmates that they had not received the “canteen” that they had previously ordered. Canteen refers to personal items including sundries and confectionery items that inmates can order. The inmates fill out “canteen sheets” that Correctional Officers forward to the Records Department at QDC so that the canteen orders can be processed and fulfilled by an outside vendor. While Sergeant Terry was investigating the canteen issue, WN approached him and stated that the grievor had assaulted him in the shower area the previous Tuesday. Apparently, other inmates at that time claimed that the grievor tore up or did not forward their canteen sheets because of the incident involving WN. [18] Without being advised by Sergeant Terry, or any other member of QDC’s management hierarchy about WN’s complaint, the grievor sent an email from his home to Superintendent Larry Shorts later on the afternoon of May 14. In that email, the grievor recounted his version of his interaction with WN on May 9 as follows: At some point during my shift, I had 3 different inmates out to shower, one of whom was inmate WN. When inmate WN exited cell M1BA, inmate WN attempted to take an item from an inmate in cell M1B2. Because of the ongoing possibly [sic] of contraband being passed around the area, I told inmate WN to return the item to M1B2. Inmate WN said that inmate WN needed shampoo, I stepped into the shower area to see if there was any institutional shampoo. After discovering that there was shampoo but no bar soap, I secure inmate WN in to M1B shower, got bar soap and gave it to inmate WN. At no time did I have any physical contact with inmate W N, or any other inmate. - 7 - The grievor testified a fellow CO had alerted him by phone earlier that day that inmates were complaining about not receiving their canteen, and that an inmate was also claiming that the grievor assaulted him the prior week. [19] On May 14, about one hour after WN had spoken to Sergeant Terry, Alex Watson, a Registered Nurse (RN) employed at QDC, advised Sergeant Terry that he may have seen something suspicious between the grievor and WN on May 9. In an Occurrence Report completed by Mr. Watson later that day, he recounted that on May 9, while he and CO Kristin Ball were in the hallway corridor of the Maximum 1B unit conducting their evening medication rounds, he observed the grievor placing his hand on the shoulder of WN. Later when interviewed by Deputy Superintendent Hillen, as part of the Fact-Finding investigation, RN Watson also stated that while he could not make out what was said, the raised voices of the grievor and WN caused a commotion. Mr. Watson further indicated that WN had subsequently advised that the grievor had been “rough with him”. While it was not absolutely clear on the submitted evidence as to whether that claim by WN to RN Watson occurred on May 9 or a few days later, the evidence did suggest that WN’s complaint to RN Watson about the grievor being “rough with him” took place prior to May 14. [20] There was evidence led at the hearing with respect to the grievor’s claim that he took possession of the liquid soap from WN because of a concern over “contraband”. The grievor additionally claimed that it was inappropriate for inmates in different cells to trade or barter, in any manner, personal items such as soap and/or shampoo. It was the evidence of Deputy Superintendent Hillen, former Deputy Superintendent Sheil and - 8 - Superintendent Shorts that there was nothing necessarily improper for inmates in adjacent cells in the same unit to trade or barter personal items between themselves. [21] During his cross-examination, the grievor suggested that he would never have directed the sort of abusive and profane language towards inmates that was being attributed to him by WN. In particular, he suggested it was outside his normal interaction with inmates to use such language as “go fuck yourself” or “you’re lucky it is not a bloodbath”. The grievor suggested that any profanity he directed towards inmates was just part of friendly banter. As reply evidence, the Employer recalled former Deputy Superintendent Sheil and three individuals who at various times had worked alongside the grievor. The general nature of the evidence of those witnesses was that the grievor was an “in your face” type of CO, and it was commonplace for the grievor to direct profane and derogatory language towards inmates. Submissions of the Employer [22] From the perspective of the Employer, the tendered evidence unequivocally establishes that the grievor, by his actions towards WN on May 9, fundamentally breached the trust that the Employer must retain with respect to any CO in its employ. Specifically, it was suggested that the actions of the grievor breached that trust by: (1) his failure to properly report and account for his activities; and (2) his failure to abide by his obligation not to subject inmates to both verbal and physical abuse. [23] Mr. Parris, on behalf of the Employer, asserted that a scrutiny of the evidence suggests that WN’s version of the events should be clearly preferred over the one advanced by the grievor. It was submitted that WN had not endeavoured to cause trouble for the grievor, notwithstanding the abusive treatment he had been subjected to. - 9 - In this regard, it was claimed that it was his cellmates, rather than the grievor, who initially reported to Sergeant Terry that the grievor was the cause of their canteen being missing, which led to WN reporting his mistreatment at the hands of the grievor. Moreover, WN sought not to escalate the issue by filing a complaint with the police and only participated in the arbitration proceeding very reluctantly. It was further submitted that WN had “no skin in the game” as there was no prior history of acrimony between WN and the grievor, and there was no apparent reason that would have led WN to fabricate the allegations against the grievor. Additionally, it was asserted that the testimony of WN at the hearing was clear and cogent and was entirely consistent, aside from some minor inconsequential points, with the version of the incident set out in the Inmate Statement Form he completed on May 14, and with the description of the incident he had provided to Deputy Superintendent Hillen as part of the Fact-Finding process. [24] Mr. Parris further suggested that it was of particular significance that WN’s version of the events was corroborated by the evidence of RN Watson. In particular, prior to his cellmates complaining about not receiving canteen on May 14, WN had alerted RN Watson that the grievor had been rough with him. [25] In contrast, the Employer submitted that a number of aspects of the grievor’s version of the incident simply did not make sense. WN would not have, it was opined, sought to “turn up the heat” by asking the “what is the big fucking deal” question, given that the grievor had just grabbed soap out of his hand and was hovering over him in the narrow confines of the shower stall. - 10 - [26] Furthermore, the Employer suggested the May 14 email the grievor sent to Superintendent Shorts was particularly damaging to the grievor’s credibility for both the details included and the details excluded from the email. Mr. Parris noted that in cross- examination, the grievor could not remember with certainty as to whether the CO who tipped him off about WN’s complaint had advised him as to the date or the name of the alleged victim of the incident. Yet, the grievor in his email to Superintendent Shorts knew exactly the nature of the incident in question, the date of the incident, and that WN was the inmate involved. As to what was not included in the email, significantly, the grievor did not include any reference to the fact that he followed WN into the shower stall and remained there for as long as 14 seconds. Related to the above point, it was asserted the grievor never provided a credible explanation as to why he felt it necessary to go into the shower stall with WN; rather than just leaning in to take a look if there was shampoo for WN. [27] The Employer also asserted the lack of consistency in the grievor’s narrative as to whether he had made physical contact with WN was another significant blow to his credibility. On this point, it was noted that initially in the investigation process, the grievor, when asked whether he had pinned WN to the shower wall, responded “not intentionally”. Yet, three years later at arbitration, the grievor was suddenly adamant that he had not come into contact with WN. For the Employer, the grievor’s initial response of “not intentionally” was a case of the grievor “hedging his bets”, as he wanted to leave the issue of whether he had pinned WN as a “grey area” wherein he could subsequently claim, if necessary, that any such contact was inadvertent or accidental. - 11 - [28] Mr. Parris asserted that another example of the lack of plausibility that mires the grievor’s version of the incident relates to his claim that he took the liquid soap from WN because, in his view, it was contraband. It was suggested that if, in fact, the grievor was concerned about the nature of the item WN had received, he would have double- checked as to its contents before returning it to the inmate who provided it to WN. Ultimately, it was suggested that the grievor was forced to concede that the liquid soap was not contraband; accordingly, his story changed to a claim that he had a hard and fast rule of not allowing inmates to share personal items. Mr. Parris noted the evidence of Deputy Superintendent Hillen, former Deputy Superintendent Sheil and Superintendent Shorts affirmed there was nothing improper, whatsoever, with inmates in the same unit sharing personal items. [29] As to the grievor’s description of the verbal interchange between himself and WN in the shower stall, Mr. Parris asserted that again the grievor’s version does not stand up to scrutiny. First of all, it was noted that the grievor’s evidence was he had already advised WN as to why he could not have the liquid soap before they entered the shower area. Arguably, more tellingly, the grievor did not mention the alleged “big fucking deal” question of WN in his May 14 email to Superintendent Shorts. [30] Another cited example of the grievor’s evidence failing to ring true related to his assertion that he would have never used the alleged abusive language attributed to him by WN, because he generally did not speak in such a manner towards inmates. In relation to this point, Mr. Parris noted when he was advised in cross-examination that former Deputy Superintendent Sheil and a number of his former co-workers were going to testify in reply that he regularly directed profanity at inmates, the grievor’s story - 12 - suddenly changed to that while he may use profane language, he only did so as “street language”; as in, any usage of profanity by him was in the context of friendly banter. It was suggested that the grievor’s attempt to portray himself as a gentle giant partaking in friendly profane-tinged banter was belied by the evidence of his former coworkers that the grievor commonly used such profanity as an intimidation tool. [31] At the end of the day, the Employer submitted that this was a straightforward case based on credibility. There was no middle ground— either the grievor’s or WN’s version was more credible. Further to this point, it was suggested that if the grievor’s version was not accepted, there could be no doubt that the employment relationship had been irrevocably damaged beyond repair. The Submissions of the Union [32] The Union did not dispute that this case ostensibly turned on which version of the May 9 incident between WN and the grievor was deemed more credible. With respect to this point, it was asserted that at the end of the day, the grievance should be upheld, since the Employer failed to satisfy its burden of establishing that the grievor committed the acts alleged with clear and cogent evidence. [33] For the Union, the nature of the interaction between the grievor and WN was straightforward and did not, in any way, suggest any misconduct on the part of the grievor. In particular, all that transpired was that the grievor was concerned about an item that WN had received from an inmate in the adjoining cell, and that, he proceeded to take that item away from WN. Then the grievor followed WN into the shower area to see if there was shampoo and when he noticed there was shampoo but no soap, the - 13 - grievor later, after returning the liquid soap to the other inmate, retrieved a bar of soap for WN. [34] As to the Employer’s take on what transpired between WN and the grievor in the shower area, Ms. Letton, on behalf of the Union, asserted that a number of the pillars of the Employer’s argument were particularly weak. One such weakness related to the evidence of RN Watson. Ms. Letton suggested that it was far from clear on the evidence as to when in fact this alleged reporting by WN of the grievor being rough with him was communicated to RN Watson. Furthermore, to abide by RN Watson’s evidence, it would have to be accepted that an RN failed to take any action for up to five days after being advised by an inmate that he had been assaulted by a CO. [35] Another cited weakness of the Employer’s case was the supposition that the grievor extensively resorted to using abusive profanity in his dealing with inmates. If that was in fact the case— it was asked — why did former Deputy Superintendent Sheil or others not speak to the grievor about this purported inappropriate behaviour? It was also noted that the grievor’s former coworkers that testified in reply, regarding the grievor’s use of profanity, could never recall him using language such as “it’s going to be a bloodbath”. In this regard, Ms. Letton suggested that there is a significant difference between a CO saying to an inmate “go fuck yourself” than “you’re lucky it’s not a bloodbath between us”. [36] The Union also disputed the Employer’s claim that WN had “no skin in the game” with respect to the testimony he provided. It was asserted that WN made it clear that he was under the impression that a possible consequence of not participating in the arbitration hearing may have led to him going back to jail. That is, the wording of the - 14 - summons that was served upon him caused WN to be very much concerned that if he did not comply and testify, the arbitrator may have had the power to send him back to jail. Accordingly, Ms. Letton asserted that the safest route for WN to follow, in the circumstances, was to stick to his fraudulent story. [37] As to the possibility of WN fabricating the story against the grievor, Ms. Letton noted that Sergeant Terry’s initial May 14 report regarding the canteen issue suggested that WN was pressured into reporting the claim against the grievor by his fellow inmates who were frustrated with the grievor, as they were of the view that he had destroyed or not forwarded their canteen sheets as a result of what transpired with WN. Accordingly, from the Union’s perspective, WN was in a difficult spot as he knew that his fellow inmates wanted him to complain about the grievor, but he did not want to push his story too far. Accordingly, it was suggested that WN sought to have it both ways—to embellish what took place but not wanting any action to be taken against the grievor. It was also submitted that a review of WN’s evidence as a whole confirms that he had a propensity to embellish and exaggerate. [38] Ms. Letton additionally suggested the assertion that the grievor was so upset with WN that he physically assaulted him and threatened a bloodbath is just not in keeping with the complete picture of the grievor’s actions. In this regard, it was noted that the grievor after allegedly physically assaulting and threatening WN proceeded to immediately retrieve soap for him. [39] As to the grievor’s May 14 email to Superintendent Shorts, it was asserted that it would not have been difficult at all for the grievor to appreciate that the incident in question related to his interaction with WN on May 9 as he would have been aware that - 15 - the canteen sheets were distributed on that date. He was also aware that he did have a verbal exchange with WN in the shower area that night. Accordingly, given his perception that his job may have been on the line given his outstanding 15-day suspension, the grievor decided to take the initiative and outline his version detailing the limited nature of the interaction he had with WN on May 9. Related to this point, it was submitted that the basic thrust of the Employer’s narrative just doesn’t add up. In particular, why would a long-serving CO whose employment was in potential jeopardy due to an outstanding 15-day suspension assault an inmate because of a dispute over shampoo? [40] The Union accepted that the grievor could be accused of not being totally forthcoming with all aspects of his version of the events during his respective interviews with Deputy Superintendent Hillen and former Deputy Superintendent Sheil. It was suggested, however, that the way the grievor was ultimately disciplined provided justification for his concern over the overall fairness of the investigation process. In particular, Ms. Letton noted that the grievor’s termination letter referenced an allegation of the grievor choking WN when in fact that claim was never pursued by the Employer. [41] Ms. Letton also suggested that the grievor’s personal circumstances contradict the caricature of him as being the ogre and bully that the Employer was desperately attempting to portray. It was noted that the grievor had steadfastly stood by his wife through the difficult medical issues she had experienced, and they had adopted two children who were previously under the care of the Children’s Aid Society. - 16 - Decision [42] As outlined by both parties in their respective submissions, this case, at its core, is a “credibility case”; as the outcome entirely turns on whether the grievor’s or WN’s version of the incident in question is deemed more credible. In terms of assessing the credibility of witnesses and the narratives outlined, the gold standard in terms of the proper analytical approach to adopt remains the one set out by the British Columbia Court of Appeal in Faryna v. Chorny [1952] 2 D.L.R. 354 (B.C. C.A.), wherein it was noted: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Utilizing the above analytical background, I have concluded that the account of WN is far more credible, in accordance with the preponderance of probabilities, than that of the grievor’s for the following reasons: [43] First, the testimony of WN at the hearing was, in my view, convincing in nature. In a rather straightforward and credible manner, WN testified to the events in a manner generally consistent with the description of the incident as set out in his Inmate Statement Form of May 14, 2017, as well as to the information he provided during his Fact-Finding interview with Deputy Superintendent Hillen. While there were certain minor discrepancies to the prior recounting of the incident (i.e. reference to Canadian Tire as opposed to Home Depot) such discrepancies are not surprising, given he was testifying three years after the events took place. The overall impression left by WN’s - 17 - evidence, in terms of his demeanour and its contents, is that he not only did not want to be involved in this legal matter, but he also had no interest in “settling a score” with the grievor. In particular, he did not seek to embellish the evidence at the expense of the grievor. For example, of his own volition, he qualified the claim that the grievor spat on him by noting that it may have been inadvertent. He also suggested that he could appreciate that the grievor might have been frustrated by having to arrange showers for inmates which would have been completed during the day shift, but for the Level 2 search. [44] Second, in relation to the issue of motive or self-interest potentially colouring the evidence provided, obviously it was in the grievor’s interest for WN’s claim of being subjected to physical and verbal abuse at the hands of the grievor to not be accepted. [45] Third, no viable explanation was ever provided by the Union or the grievor as to why WN would fabricate such a detailed story of abuse by the grievor. There being no prior history of acrimony between the two suggests that WN did not have any sort of “axe to grind” that may have otherwise provided a theoretical motive for WN to concoct the story in question. As to the theory that WN was pressured by his cellmates into embellishing the incident with the grievor as retribution for the grievor purposely preventing them from receiving their canteen, there was a complete absence of tangible evidence to support that theory. Furthermore, the evidence suggesting that his cellmates were aware that there was a significant incident between WN and the grievor on May 9 arguably supports the Employer’s position that the grievor was angry with WN, prior to them entering the shower area. - 18 - [46] Fourth, the submitted evidence relating to the incident beyond the direct evidence of the two participants is in harmony with WN’s version. In particular, as has been previously outlined, RN Watson’s testimony buttresses WN’s claim, in that there was a reporting of the grievor being rough with WN prior to the grievor and his cellmates raising the matter on May 14 in relation to the missing canteen issue. Additionally, the video evidence is not consistent with the grievor’s narrative. In particular, the grievor sought to downplay any animosity between him and WN prior to them entering the shower area; accordingly, he suggested that he was not irritated or angry with WN when he removed the liquid soap out of WN’s hands. A review of the video, however, bears witness to the grievor rather aggressively removing the soap from WN. The fact that there was an incident brewing at that point, even before their entry into the shower area, is also consistent with RN Watson’s evidence that he heard raised voices between the grievor and WN in the corridor prior to them entering the shower area. The video ostensibly confirms RN Watson’s evidence on this point, as it records RN Watson and CO Ball in the corridor of the Maximum 1B unit turning and looking to see what was happening down the corridor between the grievor and WN immediately prior to the grievor removing the liquid soap from WN; which is consistent with the view that there was some sort of heated verbal exchange between the grievor and WN. [47] Fifth, for the grievor, his May 14 email to Superintendent Shorts is a particularly incriminating piece of evidence. The grievor in cross-examination suggested that he was unsure if in fact the CO who had tipped him off about WN’s complaint had advised him as to the date of the incident and the inmate involved. Yet, before even being asked by the Employer to respond to the allegations, the grievor provided extensive details regarding the nature of the incident including the date of the incident and that the - 19 - inmate involved was WN. The grievor also suggested, without specific details apparently being provided, that the incident did not involve any physical contact. Of arguably more significance, is what the grievor did not include in his May 14 email. Specifically, there is no mention of the verbal interchange between the grievor and WN; and arguably more telling, in terms of the grievor’s credibility, there is no reference to him actually being in the shower stall at the same time as WN. The claim by the grievor that those omissions from his email were due to the stress he was experiencing on that day is not accepted. The email clearly was an attempt by the grievor to exercise damage control, and the failure of the grievor to include any sort of incriminating details was, in my view, intentional. [48] Sixth, there is the additional element that the grievor’s story changed as to whether he had any contact with WN in the shower stall, inadvertent or otherwise. During the Fact-Finding interview, when asked by Deputy Superintendent Hillen whether he had pinned WN to the shower wall, the grievor responded, “not intentionally”. Yet, at the hearing some three years later, the grievor was adamant that there was absolutely no physical contact between himself and WN. The grievor could not provide a credible explanation for this change in his recollection; or more to the point, why he had not adamantly declared throughout, that he had not pinned WN to the shower wall or had any contact with him whatsoever. [49] Seventh, there was never a plausible explanation provided as to why the grievor felt it necessary to go into the shower stall with WN in the first place; never mind, to be in that stall for up to 14 seconds. That is, no reason was offered as to why the grievor could not have simply looked into the shower to see if there was shampoo in the stall, or - 20 - have asked WN to confirm if there was any shampoo, or asked WN to step out while he took a look. Rather than taking any of those steps, the grievor, an experienced CO, who was admittedly a very large man, entered a narrow shower stall with an inmate who he had just aggressively taken a personal item away from. [50] Eighth, the grievor’s explanation as to why he felt it necessary to take the liquid soap off the grievor does not completely ring true. The grievor’s claim that there was a prohibition on inmates in the same unit sharing personal items was in direct conflict with the evidence of Deputy Superintendent Hillen, former Deputy Superintendent Sheil and Superintendent Shorts that such an exchange of personal items in such circumstances was not, in any way, inappropriate. Moreover, there is also a disconnect between the grievor’s purported reason for confiscating the liquid soap and the subsequent conversation he claimed to have had with WN in the shower. Specifically, if the actual reason the grievor took the item from WN was because there was, in his view, a strict rule forbidding inmates from sharing personal items, it is not clear why he did not state that to WN rather than declaring the “big deal” was the search earlier in the day for contraband. [51] Lastly, there is the grievor’s claim that he would not have made the abusive profane statements attributed to him by WN. On this point, the grievor’s claim that he only used profanity in relation to inmates as part of friendly banter is particularly suspect. The evidence of his former co-workers clearly suggests that the grievor, at a minimum, directed dismissive and abusive profanity at inmates at times as a way of intimidating them into compliance. - 21 - [52] In summation, it has been concluded that the preponderance of evidence suggests that on a balance of probabilities the grievor on May 9, 2017 displayed bullying conduct, made unnecessary contact, and used excessive force on an inmate. In light of that finding and given the outstanding 15-day suspension for similar misconduct; combined with no admission of wrongdoing or acceptance of responsibility on the part of the grievor suggests that notwithstanding the grievor’s lengthy years of service, the Employer had just cause to terminate his employment. Accordingly, the grievance is, hereby, dismissed. [53] Before closing, I want to thank Mr. Parris and Ms. Letton and all those that participated in this proceeding, with respect to their combined efforts to ensure that this virtual proceeding was conducted in a professional and efficient manner. Dated at Toronto, Ontario this 29th day of October, 2020. “Brian Sheehan” ________________________ Brian Sheehan, Arbitrator