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HomeMy WebLinkAbout2018-1201.Gardiner et al.2021-02-03 DecisionCrown 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# 2018-1201; 2018-1202 OPSEU# 2018-5112-0090; 2018-5112-0091 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gardiner et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Barry Stephens Arbitrator FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING DATES September 5, 2018, March 18, September 3, November 28, December 16, 2019, January 22, 29, February 4, April 30 and September 15, 2020 -2- DECISION Introduction [1] This matter involves the termination grievance of Luke Gardiner, a Correctional Officer (CO) at the Toronto South Detention Centre (TSDC). The TSDC is a maximum-security correctional facility for adult male offenders serving sentences of less than two years, and offenders who have been remanded into custody awaiting trial. [2] The grievor was terminated for failure to properly perform his duties on the night of June 22, 2017, when an inmate was attacked and seriously injured. The grievor was working on his usual unit, Unit B-4A. The unit was a Direct Supervision (DS) unit, which is distinguished from secure supervision units in that the CO’s monitoring the inmates are stationed in the same open area with the inmates. The DS units are intended to provide a form of incarceration with fewer restrictions for lower risk inmates, although it is often necessary to house ‘regular’ inmates in the DS units due to lack of space in the regular units. The inmate who was injured shall be referred to as “Inmate A” throughout this decision, out of respect for his privacy and that of his family. [3] On the evening of June 22, just prior to lockup at 6:30 p.m., Inmate A was lured by two other inmates into Cell 17 on Unit B-4A. There was no apparent warning of a problem involving Inmate A leading up to the incident. Inmate A was brutally beaten and suffered severe life-altering injuries. The injured inmate was not in his assigned cell. He was not discovered until approximately 164 minutes after the -3- assault when another inmate raised a medical emergency alarm. Inmate A was in a coma for more than two months after the attack, and he suffered permanent severe injury to his nervous system. No staff at TDSC were criminally charged as a result of the assault. [4] There was video evidence to demonstrate that, at the time the attack took place, the grievor was at the station desk in the unit, and he can be observed reading a book, and then looking at his cell phone. He was not wearing his boots. The employer asserted the grievor could not have been providing proper security because he was distracted by his book and cell phone. In addition, the employer alleged the grievor breached policies prohibiting reading material and personal electronic devices in a secure area. The employer also alleged that, because the grievor was not wearing his boots, he was not in a state of readiness to properly respond to an urgent incident on the unit. The employer alleged that the grievor failed to properly carry out his duties during the lockup round, and that had he done so, the injured inmate might have been discovered more quickly. The employer also alleged that the grievor left work twenty minutes early that shift, before Inmate A had been discovered. [5] There is no dispute that the assault started immediately prior to the time when the grievor and his two co-workers on the unit engaged in the process of locking down the inmates for the night. The grievor and another CO, whom I shall refer to as B, conducted a security round as part of the lockup procedure. B was a relatively new employee who had been with the ministry for approximately six months at the time of the incident. -4- [6] The employer described the grievor’s actions as amounting to a fundamental failure to carry out the core duties of a correctional officer, and that as a result, the grievor had destroyed the trust required to carry on with his employment. Evidence [7] Neil Longley was the ministry Inspector from Correctional Services Oversight and Investigations who conducted the investigation into the assault on Inmate A. Based on his investigation, Longley concluded that the grievor had breached a number of employer policies on the shift in question, including bringing a personal electronic device into a secure area. He candidly agreed that he had not made any inquiries into whether or to what extent the relevant policies were followed and enforced at TSDC, a subject which is considered in detail below. [8] Vicki Robertson became the Deputy Superintendent of Administration at TSDC shortly after the events under consideration in this award. She made the decision to terminate the grievor. She conducted the allegation investigation meeting with the grievor related to the June 22 incident, which took place on May 18, 2018, almost one year after the events. She testified that the grievor expressed genuine remorse about what had happened to Inmate A. However, she also testified that she concluded that the grievor was not remorseful about his own actions, that he attempted to deflect responsibility and that he was “more concerned” about the actions of others. [9] B. B was the CO who conducted the lockup round with the grievor. He had been in the position for several months at the time of the incident on June 22. He had received training as a CO, which included two weeks of orientation to the institution -5- and three weeks of job shadowing. He testified that he had not worked with the grievor before the June 22 shift. He said that the grievor told him about his prior experience in corrections and he also indicated he was familiar with many of the inmates on the unit. He testified that during the shift he noted the grievor using a cell phone “more than once.” He also stated that he was not certain how long the grievor had been reading but indicated it was more than a couple of minutes. [10] B also confirmed that he and the grievor did not follow the procedure for lockup set out in the employer’s policy. He testified that he did not verify the identity or proper cell assignments for inmates during the lockup round, nor was he aware of whether the grievor had done so. He testified that he assumed that the grievor knew the identities of all of the inmates given that he had worked on that unit for some time. He did not recall discussing any division of tasks with the grievor. He stated that he did not have an understanding that it was his responsibility to check that the inmates were in their proper cells. He agreed, however, that he felt comfortable asking the grievor questions. He did not voice any concerns to the grievor about the manner in which the lockup was being conducted or his role in it. He also confirmed that he assumed the grievor was locking all of the cell doors after the inmates were inside. [11] B asserted that during the lockup procedure all CO’s on the unit are jointly responsible for the safety and security of inmates. He confirmed he had a list on his clipboard that was organized by cell number. He used the list to confirm the lighting preferences of inmates. He agreed that it was easier for the person with -6- the clipboard to perform the task of identifying the inmates, given that the clipboard list contained the names and cell assignments for inmates on the unit. However, since he did not know the inmates on sight, he would have to take their word as to their identities. [12] Under cross examination B testified that he was not permitted to work on a unit until he had shadowed there, but that he could not recall ever having job shadowed on a DS unit during lockup procedure. [13] Luke Gardiner. The grievor has a background in social work. He worked as a social worker for approximately ten years, then began working in corrections, first with youth at Roy McMurtry, and then as a CO in adult facilities. [14] The grievor testified about an incident that occurred the day before the attack on Inmate A. The grievor’s daughter had been struck by a car at school and was taken to hospital with a concussion. The school attempted to contact the grievor at work but the grievor was not advised of the accident. (No other family member was available to respond to the emergency.) The grievor remained at work unaware of what had happened, and when he returned home that evening, he discovered that his daughter had been injured and that she had spent most of the day in hospital on her own. The grievor stated that his daughter had been “severely traumatized” by the accident and by being left on her own. He said it was difficult for him to attend work on June 22 but that he did so to avoid being marked absent under the employer’s attendance management program. Although he attended -7- work, he stated that he felt upset and distracted by the injury to his daughter and the employer’s failure to notify him of the emergency. [15] The grievor acknowledged that he was reading a book just prior to lockup. He agreed that the employer had a policy of no reading materials on the units but testified that there were books and magazines in the desk drawers on every unit he had worked. He stated that he was reading that day to distract himself from the anger he felt over what happened to his daughter the day before. He agreed “in hindsight” that he should not have been reading while he was on duty. He agreed that had he not been reading he could have taken better care of the inmates for which he was responsible. [16] The grievor testified that he understood that the purpose of the lockup procedure was to ensure that all inmates were in their correct cells and that they were safe and secure. It was also a time to be on the lookout for drugs, alcohol or other contraband in the cells. The grievor testified that CO’s at TSDC typically divide the duties for the lockup round. The process normally involves three CO’s. One CO takes the keys and is responsible for getting the inmates from the common area and into the cells, and also for ensuring the cells are all securely locked after. Another CO takes the clipboard with the list of inmates and their assigned cells and is responsible for ensuring that the right inmates are in the right cells. The third CO remains on the ground floor of the unit and observes the lockup process on both levels because the other two CO’s are often in blind spots where they cannot see the whole unit while they carry out their lockup duties. -8- [17] The grievor acknowledged that this procedure differed from the employer’s written lockup policy. The written policy, for example, states that all inmates are required to line up with their possessions outside their cells. The grievor stated, during his years as a CO, he had not seen a lockup procedure conducted according to the written policy. He testified that the process he described was that followed by most CO’s at TSDC, that he had followed it for years and that he had not been counselled or disciplined with respect to this procedure. He agreed that he raised this issue during the allegation meeting but did not do so in order to evade responsibility. He said he had come to consider the procedure he followed to be “best practice” because it was what most CO’s followed in the institution. [18] On the day in question the grievor had the keys. He stated this meant that he was responsible for getting inmates into the cells and locking the cells behind them. He testified that it was important to perform this task carefully because the inmates were being locked up early. Typically, he stated, lockup is scheduled for 9:30 p.m. but on June 22 the staff had been advised on half hour notice to lockup the inmates at 6:30 p.m. He explained that early lockups were frequent due to staff shortages, and that they were a source of tension in the institution. Some inmates would lose the chance to make phone calls or take a shower, for example, and early lockups could provoke “stand offs” where inmates refused to enter their cells. [19] Initially, the grievor testified in chief that he spoke to B prior to the lockup and told him to carry the clipboard and to ensure that inmates were in their proper cells. Later, in cross-examination, the grievor said he could not recall if he had spoken -9- to B. The grievor had the keys and B had the clipboard, and the grievor’s evidence was that he relied on B to perform the task of confirming that the right inmates were in the right cells and that everyone was safe. He testified that he assumed B had been properly trained and that he would have been trained in the lockup process used at TSDC since he had worked in the institution for several months. He said that he did not oversee B’s work, and that he would not oversee the work of any other CO he was working with. He stated that was not his role, and that he had to be able to trust that the CO’s he worked with were trained and understood how to carry out their duties. [20] The video of the events of that evening shows that there was an inmate standing in the window of Cell 17 when the grievor and B went by the first time. The grievor testified that he could see past the inmate in the window, and that he could see a second inmate lying on the bed who appeared to be sleeping. Although the assault had already taken place by this time, the grievor testified there were no signs of a struggle or blood, and that there “appeared to be no issues in the cell.” He stated that it was common for inmates to lie on their bed and appear to be sleeping shortly after lockup. He agreed that he did not see the face of the inmate on the bed. He stated that B had looked in the window prior to him and that he carried on to the next cell, so the grievor assumed everything was in order. He testified he trusted B’s judgment that nothing was amiss in Cell 17, and he proceeded to lock the cell door. He agreed that he did not ask the inmates in Cell 17 to stand beside their beds or outside their cell door. The grievor added that doing so would likely -10- provoke tension between himself and the inmates and, for this reason, CO’s did not have a practice of waking up inmates who appeared to be asleep during lockup. [21] At a later point, when the grievor passed Cell 17, there was a cloth covering the window. The grievor stated that this was common practice and was condoned by CO’s because inmates in the cell wanted to get temporary privacy to use the toilet. He testified that he did not think anything improper about the covering given that he had seen both inmates a few minutes before. [22] The grievor agreed that he left twenty minutes early that day because he was anxious to get home to his daughter. He stated he was not aware that a serious incident had occurred, and that he did not find out about the attack on Inmate A until he returned to work four days later. The grievor acknowledged that he should not have left work early. He testified that he had never signed out in the logbook at the end of a shift throughout his time in corrections. He admitted that he did not speak to any manager before leaving. The grievor testified that a security tour that would normally be performed at or around 7 p.m. would typically be conducted by the incoming evening shift. [23] Derek Warner. Derek Warner was also a CO at TSDC. He testified that the grievor’s description of division of duties between the CO with the keys and the CO with the clipboard was general practice at TSDC. He stated that the CO with the keys was responsible for making sure that none of the inmates remained in the day area and that the doors were locked after the inmates were all in the cells. The CO with the clipboard was responsible for checking the list to make sure the -11- right inmates were in the right cells. He explained that the CO with the clipboard checked on the inmates during lockup by speaking to them, normally by asking them their name. Generally, he said, inmates do not lie about their identity, and given that there were no photos on the inmate list, the CO’s relied on the verbal confirmation to identify inmates. If an inmate appeared to be asleep, however, Warner stated the CO should check to see they are breathing by observing that the inmate’s chest is moving. While he agreed under cross-examination that both CO’s were generally responsible for overseeing the health and security of the inmates, the CO who carried the keys did not have the inmate list and would not likely be in a position to have memorized the identity of every inmate and every cell assignment. He added that there were, on average, three to four cell assignment changes per day. He stated that it was common for inmates to enter cells other than their own, stating that almost every inmate enters the cell of another inmate every day. Under cross-examination Warner disagreed with the proposition that an experienced CO should always take on the role of carrying the clipboard and identifying the inmates in the cells. He stated that if this was the case the new CO would not gain experience in the full range of duties of their job. He stated that he also relied upon whoever was doing either job during a lockup to do it properly, given that he was performing other duties and could not oversee his co-workers. He testified that he would expect the person carrying the clipboard during a lockup round to be checking on the health and safety of the inmates. [24] Warner testified that, although they were against written policy, window coverings were commonly tolerated as a courtesy to inmates. He stated that when he saw -12- a cover on a cell window, he understood it to be for privacy while using the toilet, and he would likely knock on the door and “get a verbal.” He would then finish his patrol and check back later with that cell, sometimes on the next patrol, to make sure the cover had been taken down. He testified that he would not normally make a log entry to indicate that a window was covered nor did he advise a manager of such an occurrence. [25] Warner testified that he was aware of CO’s bringing in reading material and that such material could be found throughout the institution. He was not aware of anyone having been disciplined or counselled for doing so. He said he only would read work-related materials while on duty, but it was not uncommon for other CO’s to read unrelated materials. [26] Warner stated that he “tried to remember” to sign in and out of the logbook on each shift but he sometimes forgot. He said he had not been reprimanded for this, although there had been written reminders issued to CO’s in general to remind everyone to sign out. He also stated that failing to sign out would not protect an employee who left early given that they have to use a swipe card to exit and cameras within the institution would confirm their movements. Employer Submissions [27] The employer argued that the evidence demonstrated that the grievor’s actions amounted to a fundamental failure to exercise proper care, custody and control over the inmates under his protection who were dependent on him for the necessities of life. The grievor had failed to perform the core requirements of his -13- job, even though he was well aware of what those responsibilities were. The employer asserted that the mitigating factors were not sufficient to support a reduction in the penalty of termination. The grievor had less than ten years seniority when terminated, which the employer characterized as not substantial. [28] The employer submitted that the grievor’s failures started at the time of the assault, which was only a few minutes prior to the lockup procedure. At that moment, the grievor was reading a book and then checking his phone. The grievor conceded that it was against policy to bring a cellphone into the secure area. He was not wearing his boots. Even had the grievor been experiencing any personal stress, such stress was not a license to disregard any policy that was important to security. The grievor admitted that he was distracted from his duties while reading the book and while looking at his phone. The video from this time shows obvious signs of activity within the unit that, had the grievor been paying attention, would have indicated the possibility of a problem. A number of inmates were on the second tier, some outside of Cell 17. There was urgency in their movements as they went quickly up and down the stairs. During this time, none of the CO’s had an overview of what was happening on the unit. [29] The employer also relied on the fact that the grievor acknowledged that he did not use the logbook to sign in and out for breaks or when he left the building. The employer argued that this practice could assist an employee in disguising the fact that they were leaving early. Moreover, the employer argued that the grievor engaged in deflection by suggesting that the failure to sign out would not disguise -14- an early departure given the security cameras throughout the institution. Furthermore, by leaving early the grievor missed the security tour that would have taken place around 7 p.m. [30] The employer alleged that the grievor failed to react properly both when an inmate was obstructing the view by standing in the window at Cell 17 and, later, when there was a cloth in the window. Although the grievor stated in his evidence that he could see beyond the inmate, he did not mention this fact during the allegation meeting. The employer also asserted that the grievor alleged there was a practice permitting cell window coverings, but could not name one manager who would have been aware of the practice, so the employer was not able to call evidence to contradict the grievor’s allegation. [31] The grievor stated in evidence that he could not remember all of the inmates on the unit on June 22, and denied he had any responsibility for doing so because B had been in charge of verifying the identity and cell assignments of inmates. However, the employer argued that the grievor gave a different story during the allegation meeting, stating that there had been verbal confirmation at each cell. The employer also asserted that the grievor must have known that B was not conducting a proper verification procedure and that this fact could be inferred given how close the grievor and B were at times on the video record. The employer asserted it was inconsistent that B said he could not see past the inmate who was standing at the window when they first went by, but the grievor said he could. -15- [32] The employer argued that the grievor admitted only the wrongdoing that was caught on video, such as reading the book and using his cellphone in a secure area, and that he made no admissions that could not otherwise be demonstrated by supporting evidence. [33] The employer reviewed the reasons for termination identified by Robertson. While the grievor appeared to have been genuinely remorseful about what happened to Inmate A, the employer maintained that the grievor attempted to deflect responsibility for his failure to follow policy, and to blame B for not performing his duties during the lockup procedure. The employer characterized the grievor’s behaviour as a complete abandonment of his duties and a fundamental failure to protect the health and safety of the inmates under his care. He might have noticed that something untoward was afoot had he not been reading or looking at his phone, and might have prevented the attack on A entirely. The grievor was in a position where it would have been easy for him to conduct proper surveillance of the unit, simply by putting down his book and doing a walkaround in the common area. In addition, the employer argued, had the grievor performed a proper lockup inspection of either Cell 10 or Cell 17, the injuries to Inmate A would have been discovered within minutes of the attack, rather than nearly three hours later, and that might have made a difference in his treatment and recovery. Given that the grievor had failed to conduct a proper lockup round, CO’s conducting later rounds erroneously understood that the correct inmates were in the correct cells. The grievor had failed to fulfill core duties and had demonstrated a complete inability and failure to follow employer policies. The grievor’s actions had irreparably -16- destroyed the employment relationship and, as a result, termination was the only possible outcome. [34] The employer discounted the grievor’s assertions that some of the policies had not been enforced. The employer argued that there was no evidence that the employer condoned the grievor’s practices. In addition, the main issue was that the grievor failed to make proper identification of the inmates during the lockup, not that he failed to ask the inmates to line up outside their cells with their possessions. The employer was not and could not be aware that the grievor failed to take steps to verify the identity of inmates during the lockup, or that the grievor had silently relied on B to perform that task. [35] The employer submitted that the grievor gave “pro forma” recognition to his responsibilities and, at the same time, raised issues with respect to the practices at the institution and with respect to the behaviour of others in a way that indicated he did not accept true responsibility. This included the story about his daughter, which amounted to an attempt to deflect responsibility for his behaviour onto management for allegedly failing to pass along a message the previous day. The employer argued that, given that the grievor attended work that day he was warranting to his employer that he was fit to perform his duties despite whatever transpired with respect to his daughter the day before. [36] The employer argued that the mitigating factors were not sufficient to outweigh the grievor’s actions. He had less than ten years seniority, which the employer characterized as “not a long history.” Moreover, the grievor’s evidence confirmed -17- that the behaviour in question was not an isolated incident but his normal practice. He was not acting on provocation or on the spur of the moment but said that he understood his actions to represent “best practices.” The employer asserted that, given that the grievor was relatively young, he would be able to find new employment. The grievor’s actions, moreover, resulted in serious harm to Inmate A’s life and to his family. The employer also now faces civil liability for the tragedy. The fact that the grievor has not accepted responsibility or expressed real remorse has acted to shatter the trust essential for the employment relationship. The grievor provided inconsistent statements with respect to key parts of his story and was thus attempting to mislead this board of arbitration. [37] The employer relied on the following authorities: Government of Province of British Columbia, [1987] 27 LAC (3d) 311 (Hope); Ministry of Community Safety and Correctional Services, [2008] 177 LAC (4th) 1 (Petryshen); R v Feeney,[2008] 238CCC (3d) 49.; R v. Sammy, [2004] O.J. No. 1850.; McKenzie v. Deputy Head (Correctional Service of Canada, [2010] CPSLRB No 29 (Quigley); R v. Gittens, [2019] ONSC 5475 (CanLII); Faryna v. Chorny, [1951] BCJ No 152 (BCCA); Community Safety and Correctional Services (Langford et el), [2017] O.G.S.B.A. No. 48 (Stephens); Yayé v. Deputy Head (Correctional Services of Canada), [2017] CarswellNat 4023, 132 C.L.A.S. 176, 280 L.A.C. (4th) 335 (Shannon); Ministry of the Solicitor General (Miller),[2019] GSB 2017-0127, (Devins); Ontario Ministry of Community Safety and Correctional Services (Bijowski), [2012] 223 LAC (4th) 205 (Dissanayake); Ministry of Community and Correctional Services (Horan), [2002] GSB 2001-0670, (Herlich); Sheridan College Institute of -18- Technology & Advanced Learning v. OPSEU, [2010] CarswellOnt 11503, O.L.A.A. No 632 (Burke); Ministry of Community Safety and Correctional Services (Khan), [2012] GSB#2010-0606, (Briggs); Langley (Township) and C.U.P.E. 403, [1991] B.C.C.A.A.A. No 502 20 L.A.C. (4th) 256 (McPhillips); Ministry of Community Safety and Correctional Services (Bellamy/ Brown), [2011] GSB#2009-2053 et al (Petryshen); Ministry of Community Safety and Correctional Services, [2005], 137 LAC (4th) 111 (Herlich). Union Submissions [38] The union argued that, while there was little difference between the parties with respect to the facts as to what happened on June 22, there was a major difference in the assumptions applied and the assessment of the grievor’s evidence. The grievor acknowledged that he was reading a book and took time to look at his cellphone while on duty. He agreed that he was not wearing his boots while he was at the desk for a period of time. The grievor readily identified how he should have conducted himself in order to comply with the employer’s written policy. [39] The union argued that, although the grievor was disciplined for failing to follow the employer’s written policy with respect to lockup procedure, there was no evidence that the procedure was followed at TSDC. The union asserted that Warner’s evidence was consistent with the grievor’s testimony that the lockup procedure followed by the grievor and B on June 22 was the typical and established practice within the institution. Specifically, the union argued that the evidence demonstrated that the normal lockup procedure involved the division of -19- responsibility between two CO’s. The CO with the keys ensured that inmates moved from the common area to the cells and then locked the cell doors once they were in their cells. The other CO, with the inmate list on a clipboard, was responsible for confirming the identity and wellbeing of inmates. Although there were times when both duties had to be performed by one CO due to shortages of staffing, the normal procedure applied when there were three CO’s working the unit. The union argued that this fact was not a minimization of responsibility but served to explain why the grievor was not confirming the identities of the inmates during the lockup procedure. Although the grievor was familiar with some of the inmates, his evidence was that he did not know them all, and the evidence also disclosed that inmate cell assignments are subject to change on a daily basis. Given these circumstances, the union argued, the division of duties was logical and the grievor had reasonable grounds upon which to assume B was taking care of identifying the inmates. He also reasonably assumed that B had been properly and fully trained in his duties, and he could not have been aware that B had not previously performed a lockup in a direct supervision unit. [40] The union took issue with the employer describing the grievor’s actions on June 22 as a relaxing process during which he indulged in chat with various inmates. The evidence confirmed that lockup was a time of tension in the unit, and that during an early lockup the potential for conflict is higher. The CO with the keys was responsible for seeing that all inmates cooperate with the lockup procedure. This was the task the grievor was performing and the union asserted that it was a task that involved responsibility and should not be denigrated. -20- [41] The union pointed to aspects of the grievor’s testimony that confirmed he accepted responsibility for his actions, that he felt genuine remorse and that he was committed to following written policies and procedures in the future. The union argued that the evidence showed that from the time of the allegation meeting to his testimony at arbitration, the grievor had readily acknowledged his mistakes, explained how he had made those mistakes and, unprompted, had explained how he would act in future. He explained that some of his actions, such as bringing in his cell phone and reading, were the result of his emotional reaction to what had happened with his daughter the day before. [42] The union submitted that the employer had wrongly suggested that the grievor was being misleading by giving different versions of events at different times. Any inconsistencies were with respect to secondary issues, the union argued. The incident of June 22 was not brought to his attention until days later, and his allegation meeting was eleven months after the event. Any variations in the grievor’s evidence could be readily explained by the fallibility of human memory. [43] The employer also discounted the reality of the various practices that had been adopted at TSDC. For example, the increased tension caused by the frequency of early lockups led to some toleration of the use of window coverings and allowing inmates to select the light settings in their cells for overnight. These practices of granting small concessions to inmates in order to reduce tension enhanced the safety for inmates and staff alike. -21- [44] The union contrasted the employer’s reaction to the grievor with the manner in which it described the actions of B. The union asserted that the employer gave B the “benefit of the doubt” with respect to his statements but cast doubt and implied negative meaning when weighing the grievor’s statement. [45] There was no dispute that the grievor should not have brought a cellphone in to the secure area of the institution. However, this action had to be seen in the context of what had happened the day before, when the grievor’s daughter had been hit by a car and the nightmare that would create for any parent. The grievor was angry and understandably upset. The employer, in assessing the grievor’s behaviour, had failed to give any weight for the incident involving the grievor’s daughter, but rather dismissed the issue without investigating further. Indeed, the employer implied that the grievor had fabricated the story without taking the simple step of checking the letter from the school. The employer was correct that the grievor could have stayed home, and this was one of the decisions for which he justly deserved to be disciplined. [46] The union argued that the allegations related to the logbooks were not proven. The grievor acknowledged that the policy required that he sign in and out, but the grievor testified that he had never done this in his career. Warner testified that he did not always do so. The evidence also did not establish that CO’s used the logbook to record instances in which a cell window had been covered. Similarly, the grievor’s routine of removing his boots was not a disciplinable matter given that he had been following the same practice for some time. He provided medical -22- information after the termination that explained and justified accommodation for the issue he was experiencing with his feet. Regardless, the practice did not interfere with performing his duties, and the grievor testified about prior incidents that required interventions and restraints in which his ability to respond was not impeded. [47] The union stated that the evidence about reading materials was that such material was not uncommon at the unit desks and that managers must have been aware that these items were readily available throughout the institution. [48] The union also called into question the analyses of the situation undertaken by Robertson, who made the ultimate decision to recommend the grievor’s termination. She was not aware that there were blind spots on the unit, and that the grievor would not necessarily have been aware of anything untoward even if he had not been distracted at the time of the assault. She was not aware that there was a regular practice of permitting inmates to use temporary window coverings despite policy to the contrary. Indeed, the union asserted that Robertson took no steps to follow up on any of the grievor’s information about policies that were routinely not followed at TSDC, dismissing such evidence as deflection. Nor did she make any effort to follow up on the grievor’s story about his daughter the day before. On the contrary, she merely assumed the story was suspicious because of the date on the letter from the school principal. She also held against the grievor that, as the senior CO, he should have taken the time to mentor B. The union took exception to this, stating that it was the employer’s responsibility to determine the amount of training and job shadowing an employee requires, and that it was -23- reasonable for the grievor to assume that B knew his job and could be relied upon to perform his duties while the grievor performed his. B testified that he found both of his shift mates on June 22 to be approachable, so the grievor had not done anything that would have impeded B from asking questions if he was unsure about his responsibilities. Ultimately, it was the employer’s responsibility that B was assigned to a DS unit without having previously had training or job shadowing on the lockup procedures in such units. [49] The union argued that Robertson was “divorced” from the day-to-day realities of CO’s working on the units at TSDC. She made assumptions that the grievor’s behaviour was abnormal, when it was not, and that the grievor was fabricating a story about his daughter, although he was not. These two factors undermined the legitimacy of the decision she made to terminate the grievor’s employment. [50] The union addressed the employer’s assertions that the grievor could not be trusted by arguing that the grievor had made it clear that he wanted to rebuild the relationship with his employer. The fact remained that, when he followed the standard and accepted practices at TSDC, the grievor believed that he was doing all that was required in order to ensure the safety of inmates. Making reference to the realities of the workplace should not undermine the trust the employer has in the grievor. The union added that none of this relates to the grievor’s actions that he admits were improper, and it was conceded that he failed in his duty to do everything he should have done to monitor inmate activities and to ensure the safety and security of the inmates under his care. However, the union asserted, these failures, in all the circumstances, should not had led to termination. The -24- grievor made mistakes, but not because he did not care, and this was clear from his work history, and the injuries he has sustained intervening to protect inmates. [51] With respect to mitigation, the union stated that it was clear from the evidence that the events involving Inmate A had deeply impacted the grievor. He agreed that he had not followed policies, and that he had to work to repair the relationship with his employer and his co-workers. He was upset at the injuries that had been sustained by Inmate A. The grievor saw himself as someone who was prepared to put his own safety on the line to protect inmates, and that he has done so in the past. The grievor, in short, had accepted responsibility, demonstrated remorse, had explained his actions in context, and had taken the opportunity at the allegation meeting to describe to his employer how he should have acted on June 22 in response to each allegation. The grievor had no relevant or recent discipline on file, and his seniority of almost ten years was not insignificant. The union submitted that the grievor’s career had always been in the corrections field and it would be difficult for him to find work outside that field. The termination had had a profound impact on the grievor’s financial well-being as well as that of his family, and on his family situation in general. In addition, the union argued, the employer has not proven that the grievor lacked remorse or that he had fabricated the story about his daughter, although these two factors were part the decision to terminate. [52] The union relied on the following authorities: R. v. Persaud, [2020] ONSC 188; MCSCS (Maude), [2016] CanLii 18935 (Petryshen); MCSCS (Langford et. al.), [2017] CanLii 30327 (Stephens). -25- Conclusions and Decision [53] The grievor testified that he was reading a book at the desk because it helped to distract him from the stress he experienced related to the incident with his daughter. Similarly, he stated he was texting at work with his daughter who he said was suffering from a concussion and who was still very upset about being left alone in the hospital the day before. The grievor acknowledged that he was aware of the policy prohibiting bringing a phone into a secure area, and that he understood why the policy was important. Similarly, the grievor agreed that he left the workplace twenty minutes prior to the end of his shift. The grievor agreed that reading a book and looking at his phone would distract him from his duties. The employer has demonstrated that there was just cause to discipline the grievor for these failures on the day in question. The union and the grievor conceded that this was the case. The grievor is shown on the security video reading a book and looking at his cellphone at the unit desk at the time of the assault on Inmate A. Both reading and texting distracted the grievor from properly performing his duties. The grievor acknowledged that he left twenty minutes early on the shift in question. These are all workplace infractions for which there was just cause for discipline. [54] The fact that the grievor had his boots off at the time is less of a concern. The grievor stated that he did this at work due to a medical condition. He provided evidence to support this medical condition after the incident. He testified that removing his boots was his practice and that managers had seen him with his boots off. He stated he had never been counselled or directed to cease the practice. He also stated that he wears side-zipped boots and put his boots on -26- quickly when necessary and had never been advised that he failed to respond properly to emergency situations. He also stated that if he was reinstated, he would either seek proper accommodation or cease the practice. Given these facts, the employer has not established just cause to discipline the grievor for temporarily removing his boots without first counselling him that such behaviour was inappropriate. Inconsistent Statements [55] The employer relied on inconsistencies in the grievor’s statements at the allegation meeting and at the arbitration, asserting that the grievor was dishonest and attempting to mislead, and that this was evident from the changes in his story. However, the inconsistencies were with respect to secondary considerations, such as about what he said to B, and what he saw through the cell window during the lockup tour. These factors do not impact the main questions of the grievor’s culpability or the defences he raised to the allegations against him. Moreover, the allegation meeting was not held until nearly one year after the shift in question. I agree with the union’s submission that the inconsistencies in the grievor’s evidence were not surprising given the limitations of human memory. Given that the grievor acknowledged his misconduct, some of which he agreed was very serious, it would not make sense for him to attempt to mislead on secondary points that would not make a difference to his culpability. [56] I wish to note that the grievor often referred in his evidence to the practices that developed at the institution as “best practices.” This decision is not to be taken as -27- finding that the institutional practices were superior or inferior to the employer policy. Employer Policy – KVP - Consistent Enforcement [57] The grievor agreed that his behaviour was, at many points, at odds with the Ministry’s written policies. However, the grievor also raised the defence that many of the ways in which he conducted himself during the shift on June 22 were consistent with his practices and with the common practices in the institution. The grievor asserted that these practices were so common that managers in the institutions must have been fully aware of what employees were doing. [58] The employer interpreted these statements by the grievor as evidence that he failed to accept responsibility. The grievor was said to be deflecting or attempting to absolve his own behaviour by shifting the blame to others. This “failure to accept responsibility” was a major factor in the employer’s conclusion that the grievor had irreparably damaged the trust necessary for the employment relationship. However, the employer’s approach was not a balanced or fair assessment of the grievor’s statements about practices within the institution. [59] There is a legitimate question about how far an employer can go to discipline an employee who has transgressed a written policy that is not otherwise consistently enforced. I made reference to the decision in KVP in Langford, at page 20, stating at paragraph 38: “The employer has the right to establish written workplace policies, so long as such policies do not conflict with the collective agreement. However, before an employer can discipline an employee for a violation of a policy, it must be -28- clear that the policy is consistently enforced. This is obvious and trite labour relations law, and it is also common sense. It simply would not be fair for an employer to knowingly accept or ignore behaviour by some employees in breach of a written policy, and then to single out and discipline other employees for breaching the policy. If implementation of a written policy has lapsed, the employer is required to give a warning to all employees that the policy will once again be enforced and that breaches may lead to discipline. These principles are set out in the frequently cited decision in Re KVP (1965), 16 LAC 73 (Robinson, C.C.J.). One of the guidelines set out in that decision is that it would not be appropriate to uphold discipline against an employee for a failure to adhere to a policy that has not been “consistently enforced” by the employer.” [60] The decision in KVP has stood the test of time with respect to when an employer seeks to discipline an employee for the breach of policy. It is inappropriate for an employer to discipline an employee for breach of a policy that is routinely not followed, and for which other employees have not been similarly disciplined. Simply put, KVP stands for the proposition that an employee cannot be disciplined for breach of a policy where the policy is not consistently enforced. Moreover, an employee, such as the grievor, has the right to raise questions about the consistent enforcement of written policies. Raising such issues was not, in this case, deflection or denial of responsibility for the grievor’s actions – it was an appropriate response to the discipline. The grievor had a right to assert that it is not fair to discipline him for not following procedures that are routinely not followed and for which other employees are not disciplined. The employer ought to have listened to these assertions by the grievor and assessed them in an objective manner. This means that his assertions ought to have been investigated and, if proven true, weighed as part of the consideration of appropriate discipline. [61] The evidence is that the employer did not react objectively to the grievor’s assertions of inconsistent enforcement. The grievor made these assertions during -29- the employer’s investigation and at the allegation meeting, which means he raised them at the earliest opportunities. The employer’s reaction was similar in both instances. Longley, who conducted the Ministry’s investigation, testified that he did not make any inquiries as to whether the relevant policies were enforced in this institution. Robertson, who made the decision to terminate the grievor, characterized his references to the practice in the institution as “deflection” and a failure on the grievor’s part to accept responsibility. When Ms. Letton asked Robertson in cross-examination whether she had followed up on the grievor’s statements about practice at TSDC, Robertson stated that she had handed that off to a deputy who advised her that the practices the grievor referred to had previously existed but were no longer current. She did not follow up on this information and there was no evidence, for example, what was meant by “current.” The manner in which she testified and the fact that there was no meaningful investigation indicated that Robertson considered the grievor’s assertions to be of secondary importance. No documentation was provided of the details of the deputy’s findings, nor was the deputy called to testify. [62] The grievor conceded his wrongdoing with respect to a number of the allegations against him. With respect to other allegations his defence was that he was being disciplined for policies that were not enforced. When it was put to him that the policies had been developed and implemented for good reason, he responded, quite appropriately, that the policies had been developed but some had not been implemented. If some policies were not being followed or enforced, the employer cannot justify discipline with respect to the breach of those policies. -30- [63] The grievor raised a legitimate and important defence to some of the allegations, and his assertions with respect to workplace practices should have been investigated. The fact that he raised this defence should not have been held against him as an indication of lack of responsibility without further investigation. Obviously, had the employer investigated and determined the defence was without merit, the employer would be free to draw such a conclusion. But it was not appropriate to punish the grievor, in effect, for raising a legitimate defence to discipline. The employer’s case against the grievor is flawed as a result. The grievor related his experience and observations with respect to the routine procedure in the institution, but this information was held against him and treated as irrelevant or of minor importance. The details of how this issue impacted the outcome of the case are set out below. Failure to Sign Out in Logbook [64] The grievor advised Longley that he had not signed out in the logbook at the end of the shift and that he never signed in and out of the logbook during his time at TSDC. He confirmed in his evidence that this was not his practice and that he had never been disciplined or counselled about his failure to do so. The employer asserted that failing to log out could have been an attempt to disguise the fact that he left early. The grievor testified that it was only the newer CO’s who signed in and out on a regular basis. After years of such a practice it is unreasonable to conclude the employer was not aware that the grievor failed to sign out. Again, the evidence indicates that the policy is not strictly enforced. Warner testified that not signing out would not protect an employee who was leaving early, and he -31- confirmed that the employer can track the coming and going of employees via the key cards they use throughout the institution, as well as by way of video surveillance cameras. He also testified that he had failed to sign out at times and had never been counselled or disciplined. Warner said there were periodic reminders to do so, which indicates it was not an uncommon occurrence. The grievor admitted that he left early on June 22, and that is sufficient to establish just cause for discipline for his having done so. The employer has not demonstrated that the grievor failed to sign out in the logbook as part of a plan to avoid detection for leaving early. His action was part of a long-term practice for which he was not disciplined or counselled. Given that the policy was not consistently enforced, there was no foundation upon which to discipline the grievor for a failure to sign out. Reasonable observation [65] Apart from the issue of who was responsible for identifying the inmates as they were locked up, the employer submitted that the grievor was subject to discipline because he failed to inspect the cell. The employer asserted that, had the grievor engaged in a “reasonable degree of observation”, he would have detected a problem in Cell 17 during the lockup round. This assertion is not consistent with the evidence. B did not notice anything wrong in Cell 17 during the lockup round. In addition, none of the CO’s conducting regular security rounds on the next shift noticed anything in Cell 17. These later security rounds required the CO’s conducting them to look into the cells and confirm that the inmates inside were secure and safe. The grievor’s failure to notice anything in Cell 17 was consistent -32- with the experience of B and of the other CO’s who worked the following shift. From this it is reasonable to conclude that there were no signs of the assault or injuries to Inmate A that could be noticed through the cell window. 7 p.m. Security Tour [66] The employer faulted the grievor for not conducting the security tour around 7 p.m., which was a result of the fact that the grievor left early. While the employer demonstrated there was just cause for discipline with respect to leaving early, the grievor’s uncontradicted evidence was that the 7 p.m. tour was routinely performed by the incoming shift, not the outgoing shift. The evidence does not support the conclusion that the grievor should have performed the tour that was to take place around 7 p.m. or that he is subject to discipline for not having done so. Lockup Procedure [67] The security round at the time of lockup procedure is important for the security of inmates. Every witness, including the grievor, acknowledged that this was the case. The lockup process has the purpose of ensuring that the inmates are secured in their cells, and that each inmate is safe, in good health and in the proper cell. During the lockup, the grievor and B both failed to note that Inmate A was in the wrong cell and that he had, by that point, already been subject to an assault. Both failed to notice that the wrong inmate was in Cell 10, where Inmate A should have been. [68] When asked during his examination-in-chief, the grievor demonstrated an understanding of the purpose of both the regular and lockup security tours. He -33- testified in cross-examination that he had “never” seen any CO conduct a lockup according to the employer’s policy, which required inmates to line up with their possessions outside their respective cells. The grievor testified that the lockup procedure at TSDC evolved over the years since it opened, and it was his experience that most officers used the same method, and that it had become accepted as the “best practice” for the institution. [69] The grievor described the TSDC lockup procedure as follows. During a lockup round there would typically be three officers present on the unit. The work was divided among the three officers. Two officers conducted the walkaround to all of the cells, while the third officer supervised the unit because the two officers doing the cell inspections would often be in areas where there were ‘blind spots’ so that they could not see what was happening in the rest of the unit. [70] The two officers who performed the round of the cells divided the duties related to the lockup. One carried the keys and was responsible for ensuring the inmates went to the cells and for locking the cells afterwards. The other CO carried the clipboard with the inmate names and was responsible for ensuring the inmates were in their proper cells. The grievor had the keys during the lockup on June 22 and described his role as that of “crowd control”, in that he was responsible for getting the inmates into the cells. He asserted it made more sense for him to take on this role because he knew the inmates, and he had a rapport with them. He stated getting the inmates into the cells was sometimes difficult when lockup was early, as it was on June 22, given that inmates are resistant to re-entering their cells and sometimes standoffs can occur. -34- [71] The practice described by the grievor was not consistent with the employer’s policy, which required that inmates must line up outside their cells with all of the belongings, the cells are to be inspected for contraband, and then inmates are permitted to enter the cells. The evidence demonstrated that the employer’s written policy with respect to lockups was not followed in the institution. The practice the CO’s on the unit followed on June 22 was the same practice that had been in place at TSDC for years. The grievor has been at TSDC since it opened, and he testified that he had never seen a lockup conducted in accordance with the employer’s policy. Warner confirmed the grievor’s description of the typical lockup routine. Supervisors routinely conduct lockup rounds with CO’s, or are present when CO’s perform such rounds. It is not rational to conclude that management was not aware of the lockup practice described by the CO’s that had been in place for years. The employer’s policy regarding lockup procedure was not enforced at TSDC and it cannot be relied upon to support just cause for discipline. [72] B testified that all CO’s on the unit were jointly responsible for every task associated with the lockup. While all CO’s are responsible for the overall well- being of the inmates, it is not logical to find that all CO’s on the unit were equally responsible for every aspect of the lockup procedure where the duties were divided. This would require that all three CO’s, while carrying out their own duties, would also be required to watch and check as the other two conducted their duties. The grievor was not responsible for the manner in which B carried out his duties any more than the grievor was responsible for how the third CO conducted her duties. The third CO on the unit, who remained at the unit desk, could not have -35- been responsible for the way in which the grievor locked the cell doors or the way that B checked the list of inmate names. Moreover, B testified that June 22 was the first time he had conducted a lockup procedure on a DS unit, and that he did not shadow any other employees who conducted such a lockup during his training. Essentially, B was not aware of what was expected of him in these circumstances. This fact clearly contributed to the failures of this lockup procedure but the grievor was and is not responsible for the state of B’s prior training. The grievor could have engaged in better communication with B to ensure both knew their duties, but B could have initiated such a conversation as well. Both were equally at fault for poor communication. [73] The grievor provided an explanation as to why it would not necessarily be the case that he should carry the clipboard and identify the inmates. He testified that the role of getting inmates to leave the common area and proceed to the cells required a level of rapport, given that confrontations can develop, particularly during an early lockup. Warner also stated that if the senior employee always takes a certain role, the junior employees do not gain the necessary experience in all aspects of the job. The grievor had reasonable grounds to believe that B, who was also a CO, had been trained in his duties. As the grievor pointed out, it would be awkward for him to be looking over the shoulder of a peer in order to critique their performance. The grievor would have had a responsibility to intervene had he noticed any lapse in B’s work, but there was no evidence that he noticed any problems. -36- [74] The employer’s witnesses emphasized the view, and the employer argued in its submissions, that the grievor should have been responsible for ensuring the inmates were in their proper cells and for overseeing B’s work, given that he was the “senior CO” and had worked for some time on that unit. The notion of a “senior officer” is informal at best. There is no collective agreement recognition of such a role. The grievor held no such classification and received no additional compensation for accepting greater responsibility for lockups or with respect to the actions or decisions made by more junior employees. All CO’s have the same training and are expected to be able to carry out all aspects of their job. The grievor was not B’s supervisor, and it was not his responsibility to assign or direct B’s work on the shift. [75] Thus, the decision as to who took on which role was one of judgment. To be precise, the decision with respect to how duties were to be shared during the lockup procedure was a question of judgment made by all three CO’s involved. The grievor’s seniority or experience did not import a greater responsibility for the decision than his two peer co-workers. If either of the other officers believed the division of tasks was wrong, it was up to them to communicate their concerns. The grievor’s explanation that he believed he had a better chance of securing cooperation from inmates during an early lockup was as reasonable as the employer’s assertion that the grievor was better suited to identifying inmates in their cells. His explanation was not contradicted by evidence of a different practice in the workplace. To look at the issue in another light, if an incident had occurred because B had the keys, while the grievor was identifying the inmates in their cells, -37- the employer could have as easily argued that the grievor should have been responsible for clearing the inmates from the common areas and then securing the cells afterward due to the potential for confrontation inherent in that process. Either approach was a reasonable exercise of judgement in the circumstances and I do not fault the grievor or either of the other CO’s for the division of duties with respect to the June 22 lockup. [76] The fact that the grievor raised the normal lockup procedure did not constitute deflecting or minimizing of his own role, as the employer asserted, but was a factual description of how the workplace functions. The grievor had the right to lay out these facts because they impacted on the degree of responsibility he should bear for the terrible events of that night. After weighing all of the evidence and the submissions of the parties, it is my conclusion that the union demonstrated that the division of duties during the lockup placed greater responsibility on B to ‘ensure’ the identify of inmates and that they were in their proper cells. The fact that B was not aware of this task, and that the grievor was not aware that B was not aware, was the crucial factor that led to the failure of the lockup tour. I have concluded that B had the greater responsibility to speak up if he was not sure of his role, given that maintaining silence would more likely leave the grievor with the impression that he knew what to do. The employer should have given these factors proper weight in assessing the grievor’s culpability. [77] The employer argued that the video evidence showed that the grievor and B were often close together and that from this fact it should be inferred that the grievor -38- was aware that B was not identifying the inmates properly but did nothing about it. I decline to make such an inference. All that can be discerned from the video with certainty is that the grievor and B were at times close, at other times not. There is no sound. There is no way of knowing whether the grievor heard what B was saying or whether he was occupied with his own tasks. For his part, B testified that he did not ask the inmates to identify themselves “at every cell”, which suggests he did at some. He also stated that he was not sure whether the grievor was reviewing that the inmates were in the right cells during the lockup, which indicated that he was not paying attention to what the grievor was doing. When asked if he was aware of whether the grievor had properly locked all the cells, B said he did not know. From this it can be concluded that both the grievor and B assumed the other was doing what needed to be done. The inference urged by the employer requires the conclusion that the grievor was aware that a proper lockup was not being conducted but deliberately took no action. This does not fit with the grievor’s history as a CO. The evidence is not sufficient to make the inference the employer relied upon. [78] Stepping back a bit from the circumstances of this case, it is fair to observe that too much appears to be left to chance in the lockup tour, and that the effectiveness of such tours is vulnerable to well-known variables. There is no guarantee that the lockup will be conducted by employees who know all of the inmates on sight. Even a CO who knows most or even all of the inmates might miss a change in inmate cell assignments. Had the grievor called in sick for the shift on June 22, it might well have been that two CO’s unfamiliar with the unit could have been conducting -39- the lockup. It is not clear how, in such circumstances, CO’s are expected to properly identify the inmates and cell assignments except, as B stated, to accept the word of the inmates when the names are called at the cell door. [79] Thus, the quality of the identification of inmates in cells can be impacted by the relative experience of the CO performing the lockup, the honesty of the inmates in the identification process, and the perceived level of the potential for conflict on the unit. Given the lockup procedure that was common in the workplace, and given B’s training gap, it would appear that the grievor and B made assumptions about the process that turned out to be erroneous. The grievor does not bear responsibility for this failure. It was B’s job to identify the inmates, although he was unaware he was expected to do so. Cell Window Covering [80] The employer faulted the grievor for his reaction to a covering over the window on Cell 17 during the lockup security round. Longley testified that the employer’s policy, Living Unit Procedures, requires that the cell-door windows must be kept clear at all times. The policy states: “Unit windows must remain unobstructed. Cell windows, ledges and doors are to be kept clear of towels, clothing, and personal effects; this will assist staff in maintaining unit security.” The evidence, however, demonstrated that the policy was not consistently enforced and CO’s routinely allowed inmates to cover the cell windows when using the toilet in order to provide some privacy. This practice was open and known to supervisors, the grievor testified, and there was no evidence that anyone who had -40- been counselled or disciplined for the practice. The grievor stated that he saw the practice as part of a process of trying to find a balance to reduce tension and maintain order on the unit. He stated that the inmates do not react well to early lockups but that such lockups are quite frequent, and can exceed more than 200 in a year. The CO’s looked for ways, he stated, to “keep animosity and violence down.” [81] The employer argued it could not call evidence about this practice given the grievor had not identified any managers who were aware of it. That was not persuasive. Warner and B confirmed that window coverings were a common occurrence. The video evidence provided in this case appears to show other windows similarly covered on the evening of June 22. The grievor’s evidence was that the practice of allowing inmates to cover the cell window was common enough that it must have been obvious to managers. The employer was free to call a manager who had worked with the grievor on the unit to provide evidence to the contrary about cell window coverings. The fact that the employer did not do so leads to an adverse inference. The evidence supports the conclusion that the policy was not consistently enforced and that inmates were routinely permitted to use temporary window coverings while using the cell toilet. [82] Despite the institutional practice with respect to window coverings, the evidence also supports the conclusion that the grievor did not respond appropriately to the covering in this instance. Warner’s evidence about how to deal with window coverings was helpful in this regard. Warner testified that where such temporary -41- coverings are permitted in order to respect the privacy of inmates, CO’s should be expected to check back within a short period to ensure the covering had been removed. This is not a matter of policy but of common sense. The grievor, after he noticed the window covering, should have returned to Cell 17 and ensured the cover had been taken down. He did not do this. As the employer noted, he could have at least noted in the logbook that there was a covering over the window so that employees on the next shift could follow-up. The evidence demonstrates that there was just cause to discipline the grievor for the failure to respond appropriately to the window covering in Cell 17 on June 22. Decision to Terminate the Grievor [83] Robertson indicated in her evidence that she had taken verbatim notes of the allegation meeting with the grievor. A review of those notes indicates that the grievor’s explanations were often related to his view that he performed his duties on June 22 in the same manner as he had done in the past. This was relevant information that the employer should have taken into consideration. As set out above, the employer cannot discipline an employee for breach of policies that are not consistently enforced. The grievor advised the employer at the allegation meeting that the policies were not consistently enforced. Raising issues of this nature is why allegation or investigation meetings are held. It is the employee’s chance to raise any issues that may be relevant to the employer’s decision-making process. It is to be noted, however, that while he raised these issues, the grievor acknowledged that his behaviour did not conform with the written policy and that he would follow the policy at all times in the future. He was direct in admitting that -42- he had not properly logged out, that he left the workplace early, that he should not have been reading, and that he did not seek permission to bring a cellphone into the secure area. [84] It is significant that, according to Robertson’s notes, when asked towards the end of the allegation meeting whether he had anything to add, the grievor went through the allegations against him and described what he had done wrong with respect to each, and what he should have done in order to conform with the employer’s written policy. He concluded by stating that he “absolutely regretted” the mistakes he made on June 22. In other words, the grievor took the first formal opportunity he had to express to the employer that he knew what had gone wrong and how to correct his behaviour. [85] There was one statement in Robertson’s evidence that summarized the difficulty with the employer’s discounting of the grievor’s statements during the allegation meeting. When asked why she did not find the grievor’s statements about how he would work in the future to be persuasive, she stated that the employer could not trust the grievor to follow policy in the future because he had not been following the policy “all along.” This was a reference to the grievor’s comments about how common practice differed from written policy. Rather than treating the defence raised by the grievor as a relevant consideration, the employer took the grievor’s statements as an admission of his personal long-standing disregard for policies. The employer was and is responsible for consistently enforcing the policies if it intends to rely on the policies to justify discipline. The circumstances the grievor described called into question the consistent enforcement of the written policies. -43- Unfortunately, the employer took no meaningful steps to verify or refute the grievor’s assertions and proceeded to impose discipline as if the grievor were some rogue employee for failing to follow policies that were not generally followed in the workplace. [86] Robertson stated that she did not personally investigate the grievor’s assertion about the enforcement of the policies. She “handed off” this issue to another manager. That manager told her that the policies were current practice but may not have been the practice previously. It was not made clear at what period of time the policies might not have been consistently followed. Robertson could not provide direct evidence to contradict the grievor’s assertion that the policies were not followed prior to and at the time of the events of June 22. The manager who reportedly undertook the inquiry into workplace practices was not called as a witness. Mitigating Factors Incident Involving Grievor’s Daughter [87] The grievor testified that he was not in a good state of mind at work on June 22. He explained that this was because on the previous day, June 21, while he was at work his daughter had been involved in a serious incident at school. He said she had been struck by a car in the school parking lot and had been taken to hospital with a concussion. The school made attempts to reach the grievor by calling the TSDC but, for reasons that were not explained, the grievor was not contacted, and did not become aware of the accident or his daughter’s hospitalization until he -44- finished his shift. His former spouse was not available and as a result, the grievor’s daughter spent eight hours alone in the hospital. He stated that his daughter was very traumatized by the events and that he found it difficult to attend work the next day, June 22. The grievor testified that he was upset and angry about what had happened but that he did not stay home because he did not want to trigger the employer’s attendance management program. The grievor conceded, however, that he should not have reported for work on June 22. He did not speak to anyone in management about the incident with his daughter, nor did he file an occurrence report. He agreed under cross-examination that by attending work he had represented to his employer that he was well enough to perform the full duties of his job. [88] It was striking that the story about the grievor’s daughter did not lead the employer to take any action. The employer’s reaction was skepticism, a perspective that was explained by Robertson who testified that it was “odd” that the letter from the school outlining the incident, that was alleged to have occurred on June 21, 2017, was dated March 2018 and it was not provided to the employer until the allegation meeting in May 2018. [89] The grievor was not responsible for the fact that the allegation meeting did not take place until almost one year after the incident that gave rise to his termination. He provided the employer with the documentation from the school during the allegation meeting, which would have been his first formal opportunity to discuss all of the issues relevant to June 22. There was no evidence that the employer took steps to follow up on the grievor’s story and the letter from the school. The -45- explanation that Robertson provided was that she did not call the school because “we do not normally call outside” during an investigation. No explanation was provided as to why this might be the employer’s practice. The employer is free to adopt any practices that seem reasonable but an employer that seeks to establish just cause for discipline must be able to demonstrate that it conducted a full and fair investigation prior to imposing discipline. The grievor’s story about what happened to his daughter was a potential mitigating factor related to the events under investigation and should have been investigated. [90] The employer questioned the appropriateness of the grievor bringing the note from the school principal to the allegation meeting, and Robertson was skeptical because of the date on the document. It is true that the dates of documents can be significant, and that some skepticism was perhaps warranted in this circumstance. However, the date on the note was not determinative of its truth. The authenticity of the document could have been confirmed with a phone call. Obviously, had the note turned out to be dishonest, that would have formed a further ground for termination. [91] Given the lack of any evidence to contradict the grievor’s testimony, I find that the story about the injury to his daughter was true, and that it ought to have been taken into consideration in making the decision about how the grievor was to be disciplined. -46- Other Mitigating Factors [92] The grievor has a background in social work. He had worked for approximately 8 years as a CO (in both youth and adult institutions) at the time of his termination. He had no discipline on his record in the three years prior to his termination. There is no question that the grievor has suffered significant hardship since the termination. The grievor described the impact on his life. His fiancé and her son moved out and he stated that there has been little communication with them since. The grievor has three children from a previous marriage and sold his house in Brantford in order to continue to support his son who was in university. Selling his house required that he move to St. Thomas and for a time it was difficult to see his three children. Eventually, they were able to move to St. Thomas, but this was also disruptive to their lives. The grievor has been “living with my failure to keep [Inmate A] safe” and dealing with medical issues such as insomnia. He saw a counsellor and a psychiatrist and was prescribed sleep medication. He stated he has not been able to get a new job because he cannot get beyond the fact of his termination with prospective employers. [93] The grievor was a dedicated employee who has more than once been injured in efforts to protect inmates from assaults. He testified that no inmate had previously been injured on a shift that he worked and that he felt “horrible” when he discovered that Inmate A was so seriously injured. He described an emotional meeting with Inmate A’s mother at one of the court hearings arising from the assault when he hugged her and tried to comfort her. -47- Finding re Discipline [94] There is no doubt that the grievor’s actions on June 22 were serious. He was distracted by a book and his cellphone at the time when Inmate A was being attacked. He did not engage in even minimal communication with B about the division of duties on the lockup security tour. The grievor failed to respond properly to the fact that there was a covering on the window of Cell 17. And he left his shift early that evening. Moreover, although the grievor’s emotional reaction to the events involving his daughter were understandable, he committed a serious error in judgment in appearing for work on June 22 given his state of mind. It is difficult to escape the conclusion that, had the grievor not been processing the events of the previous day, he would likely have done a better job on June 22. All of this calls for serious discipline. [95] However, it is my conclusion, as detailed above, that the employer placed undue responsibility on the grievor for the failures of the lockup procedure. The employer did not investigate or consider the events related to the grievor’s daughter or with respect to the grievor’s assertions that written policies were not followed or enforced. The employer mistakenly viewed the grievor’s assertions of the different workplace practices as admissions of long-term malfeasance on his part and counted this against him in imposing discipline. Finally, the employer gave no weight to the grievor’s expressions of remorse and his demonstrated understanding of how he would comply with written policy in the future. [96] Weighing all of the evidence, the submissions of the parties and the jurisprudence, it is my conclusion that termination was not the appropriate penalty in this case. As -48- a result, I exercise my authority to substitute the penalty of a one-year suspension. The grievor is to be reinstated to employment effective the date of this award. The grievor is entitled to full restoration of seniority and service. He is also entitled to full compensation for all losses arising under the collective agreement from June 25, 2019. [97] Damages in Lieu. The employer asserted at the end of its opening statement that it reserved the right to argue for damages-in-lieu in the event I were to conclude that the grievor should be reinstated. The employer will have thirty days from the date of this award to advise the union and the Board whether it wishes to pursue those submissions. If the employer wishes to make submissions, I will make arrangements to hear the matter expeditiously. If the employer indicates it does not wish to pursue such submissions, the grievor is to be returned to work as soon as possible after that decision is communicated to the Board and the union. Regardless, the grievor is to be placed on payroll effective the date of this award. [98] I retain jurisdiction with respect to all issues arising from the implementation of this award. Dated at Toronto, Ontario this 3rd day of February, 2021. “Barry Stephens” ______________________ Barry Stephens, Arbitrator