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HomeMy WebLinkAbout2019-2224.Wade.23-03-28 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2019-2224 UNION# 2019-0369-0029 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Wade) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian McLean Arbitrator FOR THE UNION Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING January 6, February 24, June 8, July 7, July 20, 2021; January 14, February 18, July 21, August 12, September 28, December 5, 2022 - 2 - Decision BACKGROUND [1] This is a discharge grievance. At the time of his discharge, the Grievor was on a last chance agreement (LCA) dated July 17, 2019, following a settlement of an earlier grievance. The Grievor was formerly a correctional officer (CO) but under the LCA he was placed in the position of Laundry Worker 2 at the same correctional institution, Central North Correctional Centre (CNCC), where he had previously worked as a CO. The relevant provisions of the LCA for the purposes of this case are the following: 5) In the event that at any time the Griever is disciplined for: (i) a breach of institutional Services Policy and Procedures Manual, Section: Security & Control: Use of Force (ii) a breach of institutional Services Policy and Procedures Manual, Section: Administration: Reports: Report Writing (iii) a breach of the Respectful Workplace Policy (iv) a breach of the Workplace Violence Prevention Policy (v) a breach of the Statement of Ethical Principles his employment will be terminated. For greater clarity, any future misconduct must be as contained in this paragraph or similar to those in the letter of discipline dated July 10, 2018 for this provision to apply. This provision will remain in force until February 7, 2022. 6) If termination arises pursuant to paragraph 5 and it is grieved or disputed in any fashion, the parties agree that the dispute will be placed as a grievance before Arbitrator McLean who will determine only whether the events giving rise to the discipline referred to in paragraph 5 took place. If the Arbitrator finds that the events alleged took place, the parties agree that the appropriate discipline is dismissal. - 3 - [2] The Grievor was reinstated to employment as a laundry worker under the LCA on or about August 12, 2019. Incidents took place soon after his reinstatement (September 5 and 13, 2019) and the Grievor was suspended pending investigation. The Grievor’s employment was terminated by letter dated December 11, 2019, which stated: Dear Mr. Wade: Re: Termination of Employment On December 4, 2019, you attended an allegation meeting in the Administration Boardroom at the Central North Correctional Centre (CNCC). Also present at this meeting were Deputy Superintendent Scott Gale and Staff Sergeant Derek Ainsworth. You waived your right to union representation at this meeting. You were advised that the purpose of the December 4, 2019 meeting was to present you with an opportunity to provide management with additional information or mitigating factors to consider before any decisions as to what, if any, discipline should ensue as a result of the allegations the Ministry made against you regarding your actions / behavior with respect to your adherence to various Ministry policies on September 5, 2019 and September 13, 2019. The following allegations were made against you: Allegation #1 On September 5, 2019, you used poor judgment and behaved in an inappropriate and unprofessional manner when you made threatening comments to inmate kitchen workers at CNCC. Specifically, you told the inmates in a raised voice that the next inmate who chirped would be fired. Code of Conduct and Professionalism (COCAP) Statement of Ethical Principles - 4 - Allegation #2 On September 5, 2019, you used poor judgement and acted outside of the scope of your duties when you failed to seek out correctional staff or a manager to address the inmates regarding their alleged inappropriate behavior, and instead you addressed the inmates regarding their behaviour directly yourself. Code of Conduct and Professionalism (COCAP) Statement of Ethical Principles Allegation #3 On September 13, 2019, you made inappropriate and unprofessional comments in the presence of two co-workers. Your comments left your co-workers feeling intimidated and disrespected. Specifically, you: • made reference to your co-worker being a "rat" • made reference to your co-worker sucking inmate assholes • told your co-worker to "get the fuck out" Code of Conduct and Professionalism (CO CAP) Statement of Ethical Principles At the allegation meeting, you partially agreed with allegation #1, stating that you did make the outlined statement to inmates, but that you did not understand the allegation or how your comments were threatening. You further stated that it was your job to make such statements to inmates, and that you apparently didn't receive training on how to deal with inmates. With regard to allegation #2, you disagreed with the allegation and stated that you went to see Richard Plante and he wasn't there, and that the floor supervisor wasn't there either. You further stated that you weren't trained that this was out of your scope of duties, and that you had called your supervisor that night. With regard to allegation #3, you disagreed with the allegation and offered no further explanation. - 5 - After reviewing all the information provided to me, including your responses at the allegation meeting, it is my conclusion that all of the above allegations have been substantiated. As a result, you have directly violated the Ministry's Statement of Ethical Principles, and the Ministry Code of Conduct and Professionalism. As a Laundry Worker, and as a public servant, you are expected to conduct yourself in the workplace in accordance with Ministry policies at all times. Through your actions you failed to act in a respectful and professional manner toward both inmates and your fellow staff. As a result of your actions, you showed a lack of judgment and acted disrespectfully towards your coworkers. As a result of your actions, your coworkers were left feeling intimidated and disrespected. It disturbs me greatly that you felt it was appropriate to address inmates in such a manner and that you were not apologetic for any of your actions. Through your actions you have undermined the employer's trust in you, and you have damaged the employment relationship beyond repair. I have taken into consideration all the circumstances surrounding the substantiated allegations, including your employment history, your disciplinary record, your length of service and the lack of remorse and accountability you took for your actions, your untruthfulness surrounding this incident, and the seriousness of the above noted offences. As you are aware, you entered into a binding MOS on July 17, 2019 ("MOS") wherein you agreed that if you were disciplined for a breach of any of a number of policies, including the Statement of Ethical Principles your employment would be terminated. With due consideration to your conduct and given the language contained in the MOS paragraph five (5), it is my decision to dismiss you for breach of your obligations under the MOS. You are therefore dismissed with cause from your position with the Ontario Public Service, pursuant to Section 34 of the Public Service of Ontario Act, effective the date of this letter. I note that any of the substantiated allegations on their own would trigger termination under the MOS. You have the right to grieve my decision in accordance with paragraph 6 of the MOS. A copy of this letter will be placed on your corporate personnel file/record. Julie Croke Deputy Superintendent, Administration - 6 - [3] The Union grieved the discharge. In accordance with the terms of the LCA the matter was referred to me for determination after a hearing. The hearing took several days. I viewed video evidence (without sound) and heard from several witnesses called by the Employer about each allegation that the Employer relies on. I also heard from one witness from the Union, the Grievor. THE FACTS [4] The first two allegations relied on by the Employer took place on September 5, 2019, that is a little more than three weeks after the Grievor had re-commenced employment under the LCA after being off work for well over a year. The problems started when the Grievor was walking from the outdoors back into the facility on a warm summer day. Laundry workers do not have uniforms and the Grievor had chosen to dress all in black that day. [5] Among those that work in the laundry and the food preparation area are inmate workers. These jobs are awarded to inmates for good behaviour. Because it was a beautiful warm day, one of the employee laundry workers decided to give the inmate workers a chance to bask in the sun for a bit. They were all sitting on a loading dock as the Grievor approached. As the Grievor passed by, one or more inmate workers made comments about him such as “the man in black” and “dog the bounty hunter” (a reality television celebrity who dresses in black). The Grievor was upset by these comments. The Grievor turned and said, “who is the tough guy?” and no one answered, but he claims he heard one inmate say, “he is scared”. The Grievor’s evidence was that he was feeling bullied and harassed. That may be true, but I think it is likely that he also felt disrespected by people, the inmates, who he felt ought to show him respect. Employer witnesses testified that they did not hear any comments but that was likely because they were not close enough to hear. I am satisfied that comments of some kind were made to the Grievor. COs would not tolerate such comments and, as a former CO, the Grievor believed that the same rules should apply to inmates’ interactions with laundry staff. - 7 - [6] After the inmates had been brought inside, the Grievor tried to locate the workers who had made comments, or as he put it, “chirped him”, but was unsuccessful. The Grievor sought out his manager, Richard Plante, because he wanted to do something about the situation. He could not find Mr. Plante, likely because he was at lunch. He then tried to find his (the Grievor’s) direct supervisor, Dave Moffat, but he had gone home early and also was not present. He decided he would go to the kitchen and talk to the workers about their inappropriate conduct. Before doing so, he spoke to the kitchen supervisor, Mike McLaughlin. He then went out to the kitchen and forcefully told the inmate workers who were present that it was not appropriate to disrespect a member of staff and he would not tolerate it. The Grievor testified that he went to the kitchen and got the attention of everyone that was present. He said, “Listen up” and “the next person who chirps staff is going to be fired on the spot”. He then said, “thank you” and left the kitchen. He denied threatening the inmates because in his mind he was just telling them the truth. [7] Mr. McLaughlin is a cook 3, the kitchen supervisor employed at the institution. He has been in that job for approximately 20 years, the last 10 of which were at CNCC. He does no cooking and only engages in supervisory duties. Nevertheless, he is a member of the Union. He knew of the Grievor when he was a CO but did not really know him that well. [8] In examination-in-chief Mr. McLaughlin testified that he first became aware that there was an issue with the Grievor when he heard some commotion and noise in the kitchen. Mr. McLaughlin was in his office, which is located in the kitchen, with his office door partially open. He could not hear what was said but he was aware that the Grievor was “yelling” at some inmates. A few minutes later the Grievor came into the office and apologized for his actions, but Mr. McLaughlin could not recall what he apologized for. Later in his examination-in-chief, he described the Grievor as not “exactly loud but louder than usual”. He interpreted his loud voice as trying to get attention. The next day the Grievor came to Mr. McLaughlin’s office and apologized again. - 8 - [9] On September 18, Mr. McLaughlin wrote an occurrence report with respect to the September 5 kitchen incident. His report said that the Grievor yelled at the inmates and confirmed that the Grievor had twice apologized. Under cross-examination Mr. McLaughlin was asked about the fact that the occurrence report was written 13 days after the incident, which had occurred on September 5th. He replied that he wrote the report at the request of management and agreed that he did not write an occurrence report on September 5 because he did not think anything had happened that warranted an occurrence report. [10] He was asked where he was when the Grievor was “yelling” at the inmates in the kitchen. He replied he was in his office and his door was open. He also agreed that the kitchen is a fairly large space. He confirmed that when he said the Grievor was yelling he meant that he was speaking a little louder than usual. He also agreed that the Grievor normally speaks in a louder than average voice. It is not unusual for people to speak louder than usual in the kitchen because it can be a noisy place. [11] Mr. McLaughlin was asked about his recollection, which he gave in examination-in- chief, that the Grievor first spoke with him after speaking with the inmates in the kitchen. While he was initially uncertain about that he was shown a video where the Grievor attended at his office first and then spoke to the kitchen inmates. He did recall that the Grievor asked whether he could tell the inmates that if they did not stop “chirping” they would lose their work privileges. He also recalled telling the Grievor something to the effect of that the “inmates had to be kept in line”. He also agreed that he gave the Grievor permission to speak to the inmates and to advise them that if they did not stop chirping, they would lose their work privileges. I am satisfied therefore that before speaking with the inmates the Grievor asked Mr. McLaughlin for permission to do so. [12] Sherry Hervieux, a service office and food service helper at CNCC since 2004, testified that she was extremely upset by the Grievor’s behaviour, both on the loading dock and in the kitchen. She believed that all the Grievor did was rile up - 9 - the inmates which was the wrong way to handle the situation. However, she did not file an occurrence report about what had occurred. [13] Ms. Hervieux testified about her concerns with the Grievor’s conduct when he purported to correct the inmates’ behaviour. Ms. Hervieux stated that there was no correction, and it was more of confrontation. Her evidence was that if an inmate was behaving as the Grievor was, they would not be working in the kitchen any longer. She indicated that once you bring negativity, hostility, and conflict into the food services department, you get more aggressive behaviour from the inmates. Ms. Hervieux indicated that when the inmates feel disrespected, if they believe someone is misusing their authority, then the inmates can make things very challenging for the kitchen staff. [14] Ms. Hervieux and other Employer witnesses testified that laundry workers had no authority to remove work privileges from an inmate. Instead, the process was that if a laundry worker had concerns about an inmate, they should make those concerns known to management and there would be an investigation and a decision made. This process reflected the fact that work privileges were extremely important to an inmate. There could be serious psychological consequences if an inmate lost his privileges. In other words, the Grievor was in no position to follow through on the threat he had made to the inmate kitchen workers. [15] After he left the kitchen the Grievor then let his coworkers Brad Lapointe and Tony Ferlito know what he had done. He said that Mr. Lapointe, who had been on the loading dock at the time of the first incident, replied that the inmates had not been chirping. The Grievor said, for him it was chirping because he had no established rapport with inmates that might have led to that kind of banter being permissible. He had only been there a few weeks. The Grievor finished his shift and went home. [16] Mr. Ferlito’s evidence was that the Grievor was upset when he talked to him and Mr. Lapointe. He did not understand why the Grievor was upset about what had - 10 - happened at the loading dock since all that the inmates had said was “here comes the man in black”. Mr. Ferlito perceived that the Grievor became upset because Mr. Lapointe was siding with the inmates. He testified that the Grievor said “you all suck inmates’ assholes” or “asses”. Mr. Ferlito testified that he told the Grievor that he put himself in a bad situation by going by himself to talk to the inmates (both on the loading dock and in the kitchen). The Grievor was upset, and Mr. Ferlito believed he did not understand what they were trying to tell him. Moreover, Mr. Ferlito’s testimony was that the Grievor’s behaviour was not in accordance with how these types of issues were handled with inmate workers. In principle, in the kitchen and laundry areas the inmate workers were treated with dignity and respect. You cannot make enemies with the inmates as you have to work with them all day. While the Grievor’s words to himself and Mr. Lapointe did not upset him, Mr. Ferlito thought it was not an appropriate thing for the Grievor to say. [17] Mr. Ferlito was asked to write an occurrence report on September 19 and did so. That occurrence report mirrored his oral evidence. [18] Under cross-examination Mr. Ferlito acknowledged that the fact he did not write an occurrence report on September 5 meant that he did not think the Grievor’s comments were serious enough to deserve one. He also acknowledged that he had discussed these events with Mr. Lapointe prior to writing his occurrence report on September 19. He also agreed that if inmates were being disrespectful or doing something else inappropriate he had an obligation to tell them to stop. As part of that obligation he could say, if you don’t stop doing the activity you will get fired/lose privileges and that he did not need to get a CO or a manger to tell the inmates that. He also did not know exactly what comments the Grievor had been subjected to. He agreed that many staff swear in the workplace. [19] Mr. Lapointe did not testify due to illness. [20] The Grievor’s direct supervisor, Mr. Moffat, was also in the bargaining unit. He was at the relevant time in the position of storekeeper clerk 6 and had previously been a - 11 - laundry worker. His main job was to receive everything that the institution needs to keep operating. He has an office located near the loading dock near a storage area where the stocks are kept. As part of his job, he helps supervise inmate workers. He works in conjunction with Mr. Lapointe who is another storekeeper. He also works near and with the two laundry workers, the Grievor and Mr. Ferlito. [21] Mr. Moffat did not know the Grievor prior to the Grievor coming to work in the laundry, but he was aware that his employment as a CO had been terminated, he had grieved it and “won”. Mr. Moffat was not present for the loading dock incident or the aftermath since he left before noon on September 5 to prepare for dinner with his parents that night. [22] The Grievor testified that he continued to be upset about what had happened on the loading dock despite speaking to the kitchen inmates in the kitchen. He was upset because the other laundry and warehouse employees did not back him. In fact, he was so upset that he decided to call Mr. Moffat at home at approximately 730pm that evening. Mr. Moffat described him as agitated and upset about the comments that had been made. Mr. Moffat told the Grievor he did not think the comments were anything to get upset about but he acknowledged he was not there at the loading dock. The Grievor told Mr. Moffat that he had gone to the kitchen to try and find out who had made the comments. He advised that he asked around, but no one would tell him who had made the comments. This was the first Mr. Moffat had heard of any incident. He did not recall the subject of occurrence reports coming up. Since Mr. Moffat is not management, he does not tell employees to write occurrence reports, but he might give advice regarding them. The Grievor testified that he asked Mr. Moffat whether he should write an occurrence report and Mr. Moffat advised him that he did not have to. [23] Under cross-examination, Mr. Moffat agreed that on the night of the incident he spoke to the Grievor for approximately 25 minutes. He agreed this was quite a long conversation and his memory of it was not too clear since his parents were over for dinner. The Grievor told him all about the events including the comments made by - 12 - the inmates including “man in black”. He may have told him that the comment “I see white” (a reference to the Grievor’s skin) was also made. He did not think he told him that they said “dog the bounty hunter” but acknowledged he may have, and he had just forgotten - it was more than two years since their conversation. He was also asked whether an inmate said, “he’s scared” and Mr. Moffat did not think he told him that. [24] Mr. Moffat agreed that it was possible that a lot of abuse by inmates goes unreported by staff. Union counsel put to Mr. Moffat that if the incident at the loading dock and kitchen was worthy of filing an occurrence report he had an obligation to file an occurrence report. He acknowledged that he made a supervisory decision that he did not want an occurrence report. He therefore acknowledged that what had happened at the loading dock and the kitchen was not sufficiently notable to justify the writing of an occurrence report. [25] The Grievor testified that the next day an inmate worker came up to him and apologized “on behalf of “me and my fellow kitchen workers”. The inmate offered his hand and the Grievor shook it. The Grievor’s evidence was that he had never shaken an inmate’s hand in his nearly twenty years in corrections. September 13 Incident [26] That should have been the end of the matter, but it was not. A little more than a week later, on September 13, 2019, the loading dock and kitchen incidents came up again. On that day Mr. Moffat was at work in his office. The Grievor came into his office to get coffee and Mr. Moffat asked him whether something was wrong. The Grievor responded “no”, but Mr. Moffat asked again because, he testified, he could tell the Grievor was upset. The Grievor was reluctant to talk about it, but Mr. Moffat pressed him to speak his mind. The Grievor said that he was still upset about the loading dock incident. Mr. Moffat testified that he tried to calm him down by speaking to him in a quiet voice. The Grievor told him he was upset that no staff had reported who the inmate was that made the comments despite the fact they - 13 - were standing right there. Under cross-examination, Mr. Moffat acknowledged that when the Grievor first walked into his office on September 13 he did so in a calm, normal manner. [27] The Grievor’s version was that on September 13 he was in a great mood and was over with what had happened on the loading dock and the aftermath of that. He went to get coffee and Mr. Moffat was there. Mr. Moffat said, “I hope you are OK?” and the Grievor answered that he was. Mr. Moffat asked him again and then began speaking about what had happened on September 5. Mr. Moffat said that he had nearly “incited a riot on that day”. The Grievor could not believe that he said that and became upset. He said that he needed to go home. Throughout the conversation he was not angry and yelling, he was just talking. The entire conversation lasted about 40 minutes and he then went home. [28] The Grievor was shown the video of him speaking to Mr. Moffat. In his view the video confirmed everything he recalled. He was not angry or threatening. In the video Mr. Lapointe can be seen showing unusual interest in the conversation which was occurring between the Grievor and Mr. Moffat. He kept trying to peer through the office window to see what was going on. He appeared to be just hanging out near the office engaged in busywork in an effort to be nearby. On reviewing the video, the Grievor did not understand why Mr. Lapointe was hanging around Mr. Moffatt’s office seemingly obsessed with their conversation. [29] My assessment of the video is that the Grievor was not as calm as he thought he was. He was often standing and appeared to be towering over Mr. Moffat in a way that might be seen as intimidating. He appeared to have difficulty staying still and appeared animated. It also did not appear that the Grievor was aware of Mr. Lapointe’s activities until the Grievor left the office for the first time when they had a discussion. [30] As an aside, I observe that it appears that the Grievor was having difficulty understanding how inmate/staff relations worked in the laundry area. As a CO for - 14 - many years he had a particular understanding of how inmates were to be treated and how inmates were to treat COs and staff (including a wide variety of professional staff who work in an institution). As the Employer witnesses testified, they had a very different relationship with inmates which was based on trust, calmness and mutual respect. There was no evidence before me that anyone in management explained these differences to the Grievor. Mr. Moffat was asked in cross-examination whether the Grievor had received any training when he started work in the laundry. Mr. Moffat said that he had directed his staff to train him. They trained him as a laundry worker, and he was doing his job. He was not trained in how he was supposed to interact and relate to the inmates as a laundry worker. To give one example, as a CO he would generally not call an innate by their first name, whereas as a laundry worker it was normal to do so. [31] Returning to Mr. Moffat’s office, Mr. Moffat’s reaction to the Grievor’s complaint that no one had “backed him” about the loading dock comments shocked the Grievor. Mr. Moffat stated that he had heard negative reactions from other staff about the Grievor’s conduct on the day of the loading dock incident. Mr. Moffat advised him of this and the Grievor was angry to hear that. The Grievor replied in a loud and upset way “Are you kidding me? I didn’t do anything wrong”. The Grievor testified that one of things Mr. Moffat said to him was that he had almost incited a riot through his conduct. He was asked in examination-in-chief whether he had suggested that the Grievor was “inciting a riot” on the day at issue. He replied that he “did not think so”. He claimed to have never said the phrase “inciting a riot before” in his time at the institution. The Grievor became so upset that he decided he could not continue to work that day. He asked to be allowed to go home and that was granted. In order to do so, the Grievor had to fill out a form. [32] At a certain point another employee came into the office and interrupted the conversation with a question to Mr. Moffat that is not relevant. After she left, Mr. Moffat’s conversation with the Grievor continued, now with Mr. Lapointe. The Grievor and Mr. Lapointe had been talking outside of the office. Mr. Lapointe told the Grievor that he had heard the Grievor swearing on the loading dock on the day - 15 - in question. The Grievor replied that he did not swear at the dock and said something to the Grievor which Mr. Moffat could not recall in his testimony. Mr. Moffat testified that Mr. Lapointe told him if he were to continue with that language “he would put pen to paper” (write an occurrence report or make a complaint). The Grievor responded “Are you going to rat me out?” and told him something to the effect of “Fuck off and go see your inmate buddies and suck their assholes”. Mr. Lapointe left right after that. Mr. Moffat was asked what “rat me out” meant and he replied that it meant telling on him. In a correctional institution that meant that co- workers may not trust him. Again, this is another point where the Grievor was confronted with a difference between being a CO and a laundry worker. It was almost inconceivable to the Grievor that a fellow worker would report him for swearing. [33] Under cross examination, Mr. Moffat agreed that by speaking with the Grievor Mr. Lapointe was interjecting himself into a situation that was none of his business. He also agreed that even though the Grievor was upset, and Mr. Lapointe was making the situation worse, he did not tell Mr. Lapointe to be quiet or leave them alone. He did and said nothing despite the fact that the Grievor made it clear that he did not want to talk to Mr. Lapointe. [34] Mr. Moffatt testified that after Mr. Lapointe left, he told the Grievor that he could not speak to people that way. The Grievor asked if Mr. Moffatt was on Lapointe’s side, and Mr. Moffatt stated that he “was right now because the Grievor’s language was not appropriate”. Mr. Moffatt also testified that to his recollection, Mr. Lapointe did not say anything inappropriate back to the Grievor and, if he did, it was not on that level. [35] After the Grievor left the workplace Mr. Moffat then reported what had happened to a member of management, Norm Walker. He told him about the comments that had been made by the Grievor and that Mr. Lapointe was upset by them. He was told to write out an occurrence report which is what he did. Under cross examination Mr. Moffat was asked why he went to Norm Walker to report the - 16 - incident with the Grievor rather than going to his direct supervisor, Mr. Plante. Mr. Moffat replied that he was not sure and that perhaps Mr. Plante was not there. He did not recall going to look for him. In the occurrence report Mr. Moffat noted that the Grievor is a domineering person by which he meant that he is a large man whom he found intimidating. The occurrence report states in relevant part: Brad came in and tried to talk to Brian again who was still talking about the kitchen incident, and Brad made a comment about hearing him swear at the inmates on the dock. Brian said he didn't swear and Brad said I heard you swear, Brian got more upset and visibly angrier-stood up and said I'm not talking about this anymore, Brad said I'm just triing (sic) to help you. Brian said something offensive and Brad said you cant talk to me like that and said if this continues I am going to have to put this on paper. Brian said oh your going to fucking rat me out are you. Brad came in they exchanged words and Brian said why don't you just get the fuck out and go cuddle with your inmate buddies and suck their ass. I intervened and told the two staff to calm down, Brad left and I told Brian that he couldn't talk like that and Brian angrily said to me-are you on his side, I replied yes in this situation I am because were are just trying to help you and you cant talk to people like that. Brian is a very angry person at times and can be very domineering . By the end of this Brian was very angry and intimidating, he left approximately at 10:30. At 11:00 I went up to Norm Walkers office and told him that Brian had left for the day because I wasn't sure he told management and then proceeded to tell him about the incident. [36] Mr. Moffat and Mr. Lapointe were friends outside of work. They were both bargaining unit employees. [37] Virtually every witness agreed that swearing was not unusual in the institution. It was common for staff, including COs and managers to swear. Nevertheless Mr. - 17 - McLaughlin agreed that the Grievor had apologized to him for swearing during the kitchen incident but could not recall anything else he said. The Restaurant Incident [38] The parties also led evidence, over the objections of the Union, about an incident which the Employer alleged took place at a restaurant parking lot. The incident involved the Grievor and a member of the institution's management and was alleged to have occurred well after the Grievor's employment was terminated. For reasons which are discussed below I have decided this incident is not properly before me and therefore I need not describe it in any detail. DISCUSSION The LCA [39] Last chance agreements are an important feature of the labour relations landscape in Ontario, including between these parties. They are often used to resolve difficult matters that might take significant hearing time to determine through arbitration. As the Employer notes, in comments I agree with, arbitrators have consistently emphasized the importance for labour arbitrators to uphold LCAs. In Via Rail Inc. and Unifor (Caissie), 2018 CarswellNat 1452 (Sims), at para 11 arbitrator Sims stated that arbitrators are reluctant to avoid the consequences of breaching a last chance agreement because LCAs are usually clearly drafted, and the expectations are well understood by the parties. Employers would be discouraged from entering into LCAs if they can be easily undone by a grievor’s claim their breach was due to an unexpected or unintended relapse, for example. [40] However, the converse is also true. LCAs should be strictly interpretated so as not to expand the grounds under which an LCA might be invoked. If LCAs were interpretated too broadly to cover circumstances not intended by the parties’ bargain, unions might also be reluctant to agree to them. [41] A number of issues were raised regarding the LCA in this case. - 18 - [42] First, the Union argued that it must be successful in this grievance because the Employer, in deciding to terminate the Grievor’s employment, relied on historical discipline which should have been taken out of his file in accordance with the sunset clause in the collective agreement. I disagree with the Union’s argument. I rely on the provision of the LCA which gives me jurisdiction over this matter which states: 6) If termination arises pursuant to paragraph 5 and it is grieved or disputed in any fashion, the parties agree that the dispute will be placed as a grievance before Arbitrator Mclean who will determine only whether the events giving rise to the discipline referred to in paragraph 5 took place. If the Arbitrator finds that the events alleged took place, the parties agree that the appropriate discipline is dismissal. [43] The parties have agreed in the LCA that what I must determine is “only whether the events giving rise to the discipline … took place”. In the next sentence, the parties agree “If the Arbitrator finds that the events alleged took place, the parties agree that the appropriate discipline is dismissal.” In other words, if I find that the Grievor’s conduct violates one of the listed policies within the meaning of paragraph 5 then the parties have agreed that the appropriate discipline is dismissal; I am bound by that agreement. It may be that there is an exception to that agreement if the dismissal is illegal (i.e. contrary to the Human Rights Code), an issue which I need not decide, but, in my view, there is no exception for potential breaches of other provisions of the collective agreement. My jurisdiction arises from the LCA, not the collective agreement. [44] Similarly, in its termination letter the Employer referred to the Grievor’s actions as violating the Code of Conduct and Professionalism (COCAP) and the Statement of Ethical Principles. However, the COCAP is not among the policies listed in the LCA. Accordingly, in my view, under the terms of the LCA I cannot consider it. The issue is, therefore, whether the Grievor violated the Employer’s statement of ethical principles policy. - 19 - [45] Finally, my assessment of my jurisdiction means that I can give no weight to the incident between the Grievor and Acting Deputy Supervisor of Operations Chris Thompson at the restaurant. That incident, which took place long after the Grievor’s employment was terminated, says nothing about whether the event giving rise to the discipline referred to in paragraph 5 of the LCA took place. [46] Turning to what is in my jurisdiction, as noted, paragraph 6 of the LCA describes my jurisdiction as “the parties agree that the dispute will be placed as a grievance before Arbitrator Mclean who will determine only whether the events giving rise to the discipline referred to in paragraph 5 took place. If the Arbitrator finds that the events alleged took place, the parties agree that the appropriate discipline is dismissal”. [47] One interpretation of that provision is that my only jurisdiction is to determine whether the events which the Employer alleges took place actually took place. On that interpretation my only role would be to determine whether, for example, the Grievor on September 5, 2019, “used poor judgment and behaved in an inappropriate and unprofessional manner when he made threatening comments to inmate kitchen workers at CNCC. Specifically, he told the inmates in a raised voice that the next inmate who chirped would be fired”. That is not the way in which this matter was litigated and was certainly not the parties’ apparent intention when entering the LCA. [48] In my view, at a minimum, the Employer must prove that the Grievor’s conduct breached one of the listed policies in the LCA. That is certainly how the matter was argued. For example, in its written submissions, the Employer asks me to find that the Grievor’s conduct breached the statement of ethical principles. In my view, that exercise is not a mechanical one. Context still matters. For example, if the Grievor had been joking around with a co worker and called him a “turkey” and the co- worker took no offence whatsoever, I think that could hardly be said to be a violation of the statement of ethical principles even though the statement prohibits derogatory name calling. Obviously, context matters. Moreover, paragraph 5 - 20 - makes it clear that the Grievor’s action must be misconduct as it says, “For greater clarity, any future misconduct must be as contained in this paragraph or similar to those in the letter of discipline dated July 10, 2018 for this provision to apply.” [49] Finally, in making these preliminary comments about the LCA I also disagree with the Union’s interpretation of paragraph 5 of the LCA. For ease of reference, I repeat it here: 5) In the event that at any time the Griever is disciplined for: (i) a breach of institutional Services Policy and Procedures Manual, Section: Security & Control: Use of Force (ii) a breach of institutional Services Policy and Procedures Manual, Section: Administration: Reports: Report Writing (iii) a breach of the Respectful Workplace Policy (iv) a breach of the Workplace Violence Prevention Policy (v) a breach of the Statement of Ethical Principles his employment will be terminated. For greater clarity, any future misconduct must be as contained in this paragraph or similar to those in the letter of discipline dated July 10, 2018 for this provision to apply. This provision will remain in force until February 7, 2022. (emphasis added) [50] The Union argues that any discipline must be similar to that in the letter of discipline dated July 10, 2018, for paragraph 5 to apply. I disagree. The first clause lists five policies, which, if breached by the Grievor, would result in a disciplinary consequence under the LCA. The next clause goes on to say that in order for the LCA to apply, any future misconduct must be in relation to the list in the first clause or similar to those in his original termination letter. In order for the Union’s argument to succeed the word “or” would have to be the word “and”. I am satisfied that in order for the Employer to succeed it must demonstrate a breach of the list of the five listed policies or an action similar to that which took place which resulted in the original termination which ultimately was settled by the LCA. However, in this case the latter point is moot since what is alleged here is a breach of policy. - 21 - The Policy [51] The Statement of Ethical Principles states in relevant part: Statement of Ethical Principles Correctional Services employees of the Ministry have a responsibility to protect the public by providing custodial and community supervision and rehabilitative services to those referred by the judiciary and other legislative authorities. To meet this goal requires a commitment to ethical behaviour and a high calibre of professional conduct. Accordingly, as employees we will: … Fulfil our duties in a diligent, competent and courteous manner. Fulfil our responsibility to colleagues by fostering and maintaining working relationships based on mutual respect, dignity and cooperation. Contribute to sustaining an environment which is fair, equitable and free from all forms of discrimination and harassment. Statement 2 Fulfil our duties in a diligent, capable and courteous manner. Duties are performed in a manner consistent with the law and policy directions, values and principles and working procedures of the Ministry and the Government of Ontario. The responsible discharge of duties means that staff will: Act with honesty, courtesy, fairness, tolerance and impartiality in the conduct of professional duties. Under no circumstances shall any person be subject to threatening, humiliating, bullying or degrading treatment. … Present a professional image, both in actions and words. Be innovative and participate in decision making through positive and constructive means. - 22 - Statement 3 Fulfil our responsibility to colleagues by fostering and maintaining working relationships based on mutual respect, dignity and cooperation. A working environment characterized by positive communications and collaborative working relationships contributes significantly to the quality of service. Work in the Ministry is a cooperative effort, drawing upon a wide range of expertise and knowledge. Therefore, each member of staff will: Contribute to a cooperative and productive working environment. Build shared workplace values that recognize a diverse workforce. Have a responsibility to work as a part of a team to meet Ministry objectives. Respect the privacy and dignity of fellow employees in our dealings with one another. Statement 4 Contribute to sustaining an environment which is fair, equitable and free from all forms of discrimination and harassment. It is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights, opportunities and treatment. The aim is to create a climate of understanding and mutual respect. Each member of staff is therefore: Entitled to a work environment free of harassment, discrimination and prejudice. Entitled to a work environment that is welcoming to a diverse workforce. Entitled to a barrier free workplace that is accessible to all employees. Each member of staff will: - 23 - Act in a respectful manner towards fellow workers and treat every person with fairness, equality, courtesy and understanding, regardless of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. … Not participate in or condone any form of harassment, discrimination or bullying such as derogatory name calling, using insulting terms, generating or displaying hate propaganda, vandalism, membership or affiliation with any organization promoting hate. Report all serious, unprofessional and illegal acts that are witnessed. In the case of managers, act on reports of suspected harassment, discrimination and/or bullying. Refrain from reprisal and whenever possible provide full protection from reprisal for any persons who report inappropriate behaviour. Expect disciplinary action, up to and including discharge, for discriminatory and/or unlawful conduct. Provide support and assistance to both colleagues and clients when they are faced with uncertainty or are in distress. DECISION Allegation #1 [52] Allegation number one reads as follows: On September 5, 2019, you used poor judgment and behaved in an inappropriate and unprofessional manner when you made threatening comments to inmate kitchen workers at CNCC. Specifically, you told the inmates in a raised voice that the next inmate who chirped would be fired. - 24 - Code of Conduct and Professionalism (COCAP) Statement of Ethical Principles [53] The Employer argues that the Grievor used poor judgement and also demonstrated inappropriate and unprofessional behaviour when he confronted the inmate workers. It relies on the assertion that the Employer’s witnesses emphasized that the key concepts behind correcting inmate behaviour are de-escalation and constructive feedback. This included speaking to the inmates in a calm tone of voice and telling the inmates what they are doing wrong. By contrast, the Grievor’s behaviour at the dock and in the kitchen demonstrated neither of these concepts. The Grievor was being loud, aggressive, and hostile when he confronted the inmates. The Grievor used words to the inmates (“chirp”, “bird”) which are derogatory in nature. The Grievor’s threats against the inmates were illegitimate as he had not followed the process for removing an inmate from the privilege of kitchen/laundry duties. [54] The Employer also addressed the Grievor’s evidence that he was simply correcting the inmates’ behaviour on September 5, 2019, and that he had received permission to do so from Mr. McLaughlin. It asserts that the evidence was that the Grievor had not been interested in actually speaking to the inmates who had “chirped” him at the docks, but instead was lashing out at any inmate workers who happened to be in the kitchen at the time. Although there was some cursory attempt by the Grievor to identify the kitchen worker who “chirped” at him, it was clear from Ms. Hervieux’s evidence that the workers in the kitchen area had little idea as to what the Grievor was concerned about. Despite this, the Grievor went to make his comments about being fired to this particular group of inmates, despite the strong likelihood that some or all of them were not involved in the “chirping” incident on the dock. [55] Further, there were only six inmates in the kitchen area when the Grievor made his comments, but there were approximately 15 inmates on the dock. This discrepancy makes it all but certain that the Grievor was not speaking to all of the inmates who had made comments on the loading dock. The Grievor in cross-examination - 25 - asserted that inmates elsewhere in the kitchen would also have heard him, or that the inmates would have passed his message along. The Grievor’s assertion that his statement would have been heard by the inmate workers elsewhere in the kitchen was at odds with his statement in direct examination that he would have raised his voice in a controlled manner because it was noisy in the kitchen. If the kitchen was noisy enough such that the Grievor had to raise his voice to speak with people directly in front of him, it was unreasonable for the Grievor to believe that he would still have been heard by inmate workers at the opposite end of the kitchen. It is also unreasonable for the Grievor to have relied on the institution grapevine to pass his message along, especially as he has alleged that there was some urgency to the situation because he had to nip the situation in the bud. [56] The Employer argues that the Grievor was not seeking to correct the inmate workers when he had his outburst in the kitchen. The Grievor’s highly inappropriate, confrontational, and hostile behaviour was not a legitimate attempt to correct the inmates’ behaviours. Indeed, they were nothing more than angry outbursts by the Grievor, based on his perceived slights by the inmate workers on the docks. The fact that the Grievor did not care if he was actually confronting the actual inmate workers from the dock also spoke to his poor judgment and the inappropriateness and unprofessionalism of his behaviour. The Grievor cannot hide behind the excuse that he was correcting inmates’ behaviour when it was all but a certainty that at least some (if not all) of the inmates that he confronted were not actually on the dock. [57] The Union argues that the Grievor was not trained that anything he had done was not acceptable and in fact nobody thought what he had done was so serious that it warranted the Grievor being reported or a written occurrence report be made. He was given permission to speak to the inmates and had been told that the inmates needed to be kept in line. - 26 - Decision Allegations 1 [58] There are few facts in dispute in assessing the Employer’s case with respect to the first allegation. In this respect, there is no dispute that “on September 5, 2019, the Grievor made [threatening] comments to inmate kitchen workers at CNCC. Specifically, [he] told the inmates in a raised voice that the next inmate who chirped would be fired.” The only real factual dispute is whether his comments could properly be characterized as threatening. [59] Before assessing the merits, it is appropriate to make findings of the facts that may be in dispute that are relevant to my determination. In this regard, I am satisfied that inmates made comments to the Grievor as he walked past them at the loading dock which included “Dog the Bounty Hunter” and “the Man in Black” and more likely than not “he is scared”. While some Employer witnesses denied that any comments were made, there is no rational reason for the Grievor to have reacted the way he did if nothing was said to him. Second, I find that he tried to locate his manager Mr. Plante and his direct supervisor Mr. Moffat before deciding to take things into his own hands. Third, the Grievor sought and received permission from Mr. McLaughlin to do exactly what he did-to advise the inmates in no uncertain terms that making comments (“chirping”) staff was not acceptable and that if inmates did so they would lose privileges. [60] I do not accept that the Employer had grounds for discipline with respect to this allegation. The Grievor was new to the position. He had not been given any training or instruction about the relationship between laundry/kitchen staff and inmates. I am satisfied that he had an honest belief that what the inmates had done to him was inappropriate, particularly given that he had worked around them for such a short period of time in his capacity as a laundry worker after years as a CO. I am also satisfied that he had a genuine concern that it was dangerous to permit inmates to “chirp” staff on the theory that if you “give them an inch, they will take a mile”. He believed that inmates had to be kept in line. - 27 - [61] In that context the Grievor attempted to talk to his manager Mr. Plante but was unable to find him. The Employer has led no evidence that Mr. Plante was actually in the facility and there is no reason to dispute the Grievor’s claim. Similarly, there is no reason to doubt his claim that he also sought out Mr. Moffat who, it is clear, was not in the facility. Finally, the Grievor asked for and was granted permission of Mr. McLaughlin to do what he did. Despite the evidence from employer witnesses that what he did was not the way things were done in the laundry/warehouse/kitchen areas Mr. McLaughlin, a very long service supervisor, approved it and agreed that the inmates had to be kept in line. Importantly, there is no evidence before me that Mr. McLaughlin was disciplined or admonished in any way for granting the Grievor permission to speak to the inmates in the kitchen whom he oversaw. [62] I also disagree with the Employer’s contention that he engaged in misconduct by advising the inmates that if they “chirped” they would lose their privileges because he did not have that authority. Again, he was not advised of the procedure for withdrawing inmate laundry and kitchen working privileges. He asked a very experienced kitchen worker, Mr. McLaughlin, and was not told that he did not have the authority to “fire” employees. In fact, he was encouraged to make that “threat” to inmate workers. [63] In my view, the Grievor did not do anything knowingly wrong. He violated no written policy. His “threat” was, in his view, a statement as to what would happen if the inmates were disrespectful to staff. At most the Grievor should have been counseled as to what was appropriate communication with inmates as a Laundry Worker. Most importantly, I see no violation of the statement of ethical principles. He dealt with the inmates firmly, but fairly. He did not call them names. He simply sent a short message to all about the way he wanted to be treated and the way he expected staff to be treated. He may have been loud but that is his nature, and it was appropriate in the context of the kitchen. - 28 - Allegation 2 – Grievor used poor judgment and acted outside the scope of his duties. [64] Under Allegation 2, the Employer asserted that the Grievor had used poor judgement and acted outside of the scope of his duties when he addressed the inmates’ behaviour directly himself as opposed to seeking out correctional staff or a manager. [65] The Employer submits that this allegation has been made out as well. It argues that while staff do have the ability to correct inappropriate behaviour by inmates, this was not what the Grievor was doing when he confronted the inmate workers in the kitchen on September 5th. Instead of de-escalating and providing constructive feedback, the Grievor approached the inmates in an aggressive and confrontational manner. The Grievor’s actions could not be said to have corrective in nature and as such he could not have been said to have been acting within the scope of his duties. [66] Further, the Grievor was telling the inmates that the next one who chirps will be fired. The Grievor in his cross-examination accepted that he did not actually have the ability to fire the inmates, and that he did not take Mr. McLaughlin’s comment literally in reference to having the next inmate fired if they chirped. The Grievor nevertheless goes to state, if not to intimate strongly, that the inmates can be summarily removed from the works program without any adjudicative process. This is not something that the Grievor or indeed anyone could have done. Instead, there was an adjudicative process that begins with the issuing of a misconduct. The Grievor in effect was issuing an empty threat to the inmates and could not be said to be acting within the scope of his duties. [67] Finally, in response to the Grievor’s claim that he did try to find his manager Mr. Plante, the bottom-line is that the Grievor never did reach a manager. Indeed, the Grievor appeared to have moved on very quickly from looking for Mr. Plante to getting his purported Okay from Mr. McLaughlin. The Grievor’s explanation as to why he needed to confront the inmates right after the incident is also not credible. - 29 - In essence, the Grievor stated he need to nip the situation in the bud, or else the situation would escalate and staff could be in danger. As Ms. Hervieux has noted, however, the Grievor’s aggressive and hostile demeanour with the inmate workers was precisely the conduct that can lead to aggression by the inmates. As noted earlier, the Grievor was also seemed prepared to have inmates pass on his message to others through word-of-mouth (in light of the fact he was only speaking directly to six of the inmate workers). This form of haphazard communication is hardly consistent with the Grievor’s claim that his message needed to be communicated to the inmates on that same day. Decision Allegation #2 [68] For much the same reasons as I came to my decision with respect to allegation #1 I find that no discipline was warranted for the Grievor’s conduct in allegation #2. Allegation #2 asserts that the Grievor should have sought out a CO or member of management rather than dealing with the inmates directly. On the evidence before me, of course, the Grievor did seek out a member of management-his manager. He also sought out his direct supervisor and before speaking to the inmates he asked permission of Mr. McLaughlin, the supervisor of the kitchen inmate workers he spoke to. [69] There is nothing before me to suggest the Grievor could have known that he was not to speak to inmates directly without getting the permission of a manager or CO. In fact, Employer witnesses agreed that they sometimes did so without speaking to management first. For them, it was the way the Grievor spoke that was the issue not the fact that he spoke. Even then none of them thought the Grievor did anything so wrong that an occurrence report should have been written. It is clear that, but for the events of September 13, nothing would have come of the Grievor’s activities on September 5. In coming to this conclusion, I do not suggest that what the Grievor did in the kitchen and loading dock was acceptable, but only that the Grievor would not have known it was unacceptable given his work history and lack of knowledge about his new position. - 30 - [70] Importantly, I see no violation of the statement of ethical principles by the fact that the Grievor spoke to the inmates without getting management approval first. Nothing in the statement discusses getting permission in such circumstances. [71] For all of these reasons I find that the appropriate response to the Grievor’s conduct would have been to advise him of its expectations as to the appropriate response where an inmate is acting out. Allegation #3- September 13th Incident [72] In order to justify discipline with respect to the September 13 incident the Employer must prove on a balance of probabilities that the Grievor spoke to Mr. Lapointe in the manner alleged (or something close to it) and that the comments made are misconduct in violation of the statement of ethical principles under paragraph 5 of the LCA. Arguments [73] The Employer submits Mr. Moffatt testified in a straight-forward manner, and his evidence should be preferred over the evidence of the Grievor. Mr. Moffatt’s recount of the Grievor’s statements was consistent across his Board testimony, his occurrence report and his interview by Staff Sergeant Downard. Mr. Moffatt reported the incident of September 13th to Deputy Superintendent Walker on the same day. There was absolutely no reason for Mr. Moffatt to have fabricated these allegations against the Grievor. There has been no suggestion, for example, that Mr. Moffatt had harboured any prior ill will towards the Grievor or had any other motive to falsely accuse the Grievor. [74] The Employer also notes that the Grievor was also described by Mr. Ferlito as having used the almost identical language on September 5th about “sucking inmates’ assholes” in relation to the incident on the dock. Mr. Moffatt was not involved in this earlier conversation between the Grievor, Mr. Ferlito and Mr. - 31 - Lapointe. Again, there is no reason why Mr. Ferlito would fabricate these allegations against the Grievor. Even though the Grievor testified in his direct examination that he has never used those words in his life, he has not offered any credible explanation as to why Mr. Moffatt and Mr. Ferlito would separately falsify these allegations against him. [75] The Employer further submits that the Grievor’s comments were not “shop talk.” Mr. Moffatt testified that to be labelled as a rat could lead to an employee being shunned by their coworkers and people not trusting you. This evidence is consistent with the evidence of Deputy Superintendent Thompson when testified about the parking lot incident. Mr. Thompson testified that from personal experience, anyone labelled as a rat could lead to other not wishing to work with them and can have a pretty negative impact on their careers. The matter of code of silence is also specifically prohibited under the Statements of Ethical Principles and COCAP. In his cross-examination, the Grievor initially suggested the term “rat” is not offensive because it just means you are telling the truth. When pressed, however, the Grievor did agree that the term ‘rat’ is derogatory as an old-school term. [76] Further, the Grievor’s other comments went beyond mere swearing that would take place in the workplace. For instance, Mr. Ferlito testified no other staff member, besides the Grievor, had ever said to him that he sucked inmates’ assholes or words to that effect. Mr. Ferlito distinguished the Grievor’s inappropriate language from other instances where staff members might have used curse words in the past, in that the Grievor had actually directed his comments at Brad Lapointe and himself. [77] Finally, it is important to note that Mr. Moffatt told the Grievor that his comments were inappropriate at the time of the September 13th incident. Mr. Moffatt also testified he would not like it if the Grievor was reinstated to employment, and would be a little worried and definitely intimidated. He stated that it was based on the things that have gone on as well as the language used. Mr. Ferlito similarly stated - 32 - that he would not like it if the Grievor were reinstated to work in the warehouse because he is unpredictable. These reactions by the Grievor’s coworkers to the Grievor’s comments and behaviour clearly demonstrate they went beyond the banter that may occur in some workplaces. Rather, they should be taken as the inappropriate, harassing and bullying comments as they appear to be on their face. [78] The Union disputes that the Grievor made the comments (“Fuck Off”, “cuddle with inmate friends”, “suck inmates’ assholes” and “are you going to rat me out”). It says the Grievor’s evidence on these points should be preferred. The Union argues that the Grievor’s evidence regarding whether he made the comments to Mr. Lapointe and Mr. Moffat should be preferred over their evidence. The Grievor strenuously denies making the comments and he should be believed. [79] In any event, the Union argues that even if the comments were made, in this workplace such comments do not rise to the level that is worthy of discipline. The institution is filled with hard people. The evidence was clear that almost everyone swears on a routine basis. In fact, the Grievor’s evidence about coarse, offensive and misogynistic language used with by and with respect to Mr. Lapointe, which everyone laughed at, went unchallenged. The Grievor’s career should not be ended because of a few curse words. The other comments must be examined with great care. The most consistent evidence was that the Grievor did not call anyone a “rat”. Instead, at most he said, “are you going to rat me out”. That is a wholly different thing and none of the comments made about being labeled a rat apply. Were Comments Made as Alleged? [80] In its termination letter the Employer stated that the Grievor made the following comments to Mr. Lapointe: • made reference to your co-worker being a "rat" • made reference to your co-worker sucking inmate assholes • told your co-worker to "get the fuck out" - 33 - [81] I am satisfied that the conversations which resulted in the alleged comments started when Mr. Moffat asked the Grievor how he was doing. The Grievor eventually admitted that he was still upset about what had happened at the loading dock because he felt like he wasn’t supported by his co-workers. They seemed to side with the inmates over him. [82] Rather than being sympathetic to the Grievor as the Grievor likely expected, Mr. Moffatt told the Grievor some news which he may have thought would be welcome: none of the staff were going to report him for his behaviour at the loading dock or kitchen. The Grievor was shocked by Mr. Moffat’s statement. He had no idea that he had done anything wrong. He responded to the effect of “report me for what?”. Mr. Moffat replied. The Grievor says he responded with “for almost inciting a riot” which Mr. Moffat “100%” denies. Mr. Moffat says he told the Grievor that his co- workers were not happy with how he had acted on September 5 and had complained to him about it. It does not really matter what he said because it was to the effect that the Grievor did something seriously wrong. The Grievor was very upset and decided he needed to go home, and Mr. Moffat agreed to allow him to leave. [83] There was then a break in their discussion. Mr. Lapointe, who had been lurking around the office while the meeting between Mr. Moffat and the Grievor was going on, began to speak to the Grievor. Mr. Lapointe did not testify so it is difficult to determine exactly what occurred and when. What I find most likely is that whatever Mr. Lapointe was saying was making the Grievor angry. Mr. Moffat cannot recall what was said by the Grievor, and he was not paying attention to the whole conversation anyway, but I think it more likely than not that Mr. Lapointe accused him of swearing at the inmates and the Grievor told Mr. Lapointe to go away or, most likely, to “get the fuck out of here” because he did not like Mr. Lapointe’s involvement or what he was saying. Mr. Moffat acknowledged that Mr. Lapointe had no business being involved in this conversation, that he was upsetting the Grievor and that he did not tell Mr. Lapointe to leave them alone. Those facts are consistent with the Grievor, within his rights, telling Mr. Lapointe to get the fuck out - 34 - of here or something similar. It is also consistent with Mr. Lapointe and Mr. Moffat’s reaction. [84] Mr. Lapointe was upset by being told to “get the fuck out of here” or something similar and he told the Grievor that he did not like being talked to like that and that if he did it again, he would report him (“put pen to paper”). The Grievor responded with anger and incredulity: “You are going to rat me out”? He then made comments to the effect of “why don’t you go cuddle with your inmate buddies and suck their assholes”. Mr. Lapointe left and Mr. Moffat then told him that he should not speak to people like that. Mr. Moffat then reported him. The Grievor denies that he made those comments to Mr. Lapointe. [85] I note that although there was some suggestion that the Grievor called Mr. Lapointe a “rat” or a “fucking rat” I am satisfied that he did not do so. Mr. Moffat conceded as much in his cross examination. Instead, as noted, it is most likely the Grievor said something very much like: “are you going to rat me out?”. [86] In the absence of Mr. Lapointe, I must determine whether the Grievor made the alleged comments based largely on whether the Grievor or Mr. Moffat’s evidence should be preferred. There were no other witnesses to their conversation. After careful consideration, I find that Mr. Moffat’s version of the events should be preferred over that of the Grievor. I come to that conclusion for several reasons. [87] First, the comments are very similar to ones that Mr. Ferlito testified that the Grievor made to him on September 5. Mr. Ferlito’s evidence is trustworthy, in part, because he took the comments with a grain of salt. He felt that the Grievor was just blowing off steam and did not take the comments personally. His evidence about them was very matter of fact. There was no suggestion before me that Mr. Ferlito bore any animosity towards the Grievor or any other reason to fabricate what he said. Unlike many of the other Employer witnesses, I did not get the sense that Mr. Ferlito would be happy to see the Grievor out of the workplace. - 35 - [88] Second, while the Grievor strenuously denied making the comments, his version of the interaction between him and Mr. Lapointe was not particularly detailed or coherent. His story does not integrate the known facts in a way that flows as does Mr. Moffatt’s description of the interaction. Rather than give evidence about what was said to him by Mr. Lapointe and, most importantly, what he said in return, he mostly denied making the comments. He claimed that he had never said the phrase “sucking inmates’ assholes” in his life but did not state what he did say that caused Mr. Lapointe to become so angry and for Mr. Moffat to report him. While he says that Mr. Lapointe accused him of swearing at the inmates at the loading dock, the Grievor’s evidence about what his response was - that he told him that Mr. Lapointe could work with the inmates that he had been working with (since he was leaving the workplace for the day) - is not credible. The Grievor’s version of his actions simply makes no sense in view of Mr. Moffat’s response; why would he immediately complain about that? Indeed, why would he then fabricate a whole story about what the Grievor said? [89] Third, the Grievor’s evidence in cross examination that the word “rat” has no special meaning in a correctional setting was not credible and undermines his whole testimony. His later admission that it used to have importance did little to resurrect his testimony on this point. While the code of silence may not be what it once was in corrections, as the Grievor alluded to in his testimony, as the Employer’s witnesses made clear, to be called a rat in a correctional institution is not welcome. [90] Fourth, Mr. Moffat’s version is consistent with what was occurring in the conversation and the participants actions following the conversation. The Grievor thought Mr. Lapointe was provoking him and the Grievor acknowledges that he was very upset bit by what Mr. Moffat said and what Mr. Lapointe was saying. Mr. Moffat’s version is consistent with the Grievor being angry with Mr. Moffat and Mr. Lapointe. Mr. Lapointe was accusing him of swearing at the inmates which the Grievor denied. The Grievor said something to him, and Mr. Lapointe objected, telling the Grievor that he would report him (“put pen to paper”). The Grievor then responded in a natural way, asking “what are you going to do “rat me out?””. It is - 36 - hardly surprising he responded in such a way given his background as a CO; a CO would almost never report a fellow CO for something like that. [91] In saying that, I emphasize that I do not believe the Grievor called Mr. Lapointe a “rat”. Instead, he asked him if he was going to “rat him out” which carries a far less severe negative connotation and impact. [92] In conclusion, returning to the termination letter, I do not find that the Employer has proven that the Grievor “made reference to your co-worker being a "rat"”. I find that it has demonstrated that he did ask Mr. Lapointe whether he was going to “rat him out”. I further find that the Grievor told him to “fuck off” or “get the fuck out" in an effort to have him leave him alone. I also find that the Grievor told Mr. Lapointe that he should go “suck inmate assholes”. Did the Grievor’s Comments Violate the Statement of Ethical Principles? [93] The essence of the Employer’s argument regarding Allegation 3 is that the Grievor violated the statement of ethical principle #2 because he did not “fulfill his duties in a courteous manner” and did not “contribute to a cooperative and productive working environment”. He also violated the statement of ethical principle #3 because he did not “fulfil [his] responsibility to colleagues by fostering and maintaining working relationships based on mutual respect, dignity and cooperation”. Finally, he violated statement of ethical principle #4 because he did not “Act in a respectful manner towards fellow workers and treat every person with fairness, equality, courtesy and understanding…” and because he participated in “harassment, discrimination or bullying such as derogatory name calling, and using insulting terms …”. [94] In assessing this allegation, I disagree with the Union that this is about curse words. Were that all it was it would be easy to find in favour of the Grievor. In fact, my finding that he told Mr. Lapointe to get the fuck away or fuck off is of little concern as a violation of the statement of ethical principles. For some reason Mr. Lapointe - 37 - had decided to inject himself into the conversation between the Grievor and Mr. Moffat. He persisted in antagonizing the Grievor even though he must have seen the state of mind the Grievor was then in. It is hardly surprising that the Grievor said what he said to Mr. Lapointe in that moment. In that workplace, the Grievor’s comment in this regard was not, on its own a serious matter. [95] The real concern arises after Mr. Lapointe told the Grievor that if he continued to speak to him like that, he would report him. This put the Grievor on notice that Mr. Lapointe was unhappy about the way the Grievor was speaking to him. At that point the Grievor knew or ought to have known that the comments he was directing at Mr. Lapointe were unwelcome. [96] Rather than recognize that he was in jeopardy, the Grievor engaged in an escalation. He asked Mr. Lapointe if he was going to “rat him out”. Again, I have little concern with the fact that the Grievor asked Mr. Lapointe if he was going to rat him out. Mr. Lapointe had just said he was going to report him if he continued with his conduct towards him and the Grievor asked him, in a coarse disapproving way, whether he really was going to report him. The Employer argued that the Grievor’s comment constituted a breach of ethical principle which mandates that employees “refrain from reprisal and whenever possible provide full protection from reprisal for any persons who report inappropriate behaviour.” To put it another way, the Employer argues the comment reinforces the “code of silence” among correctional employees which the Employer seeks to eliminate. The code of silence is a long standing issue at the Ministry and reflects the fact that corrections staff would not report each other for any wrongdoing, even of the most severe kind. Employees who broke the code were often subjected to the most severe social and professional retaliation. [97] While the Grievor’s comments were unpleasant, I do not see them as an attempted perpetuation of the code of silence or a reprisal. The statement merely reflects the Grievor’s surprise that Mr. Lapointe might report him for something so minor. - 38 - Again, in this workplace, the way the Grievor questioned Mr. Lapointe’s intentions was not out of line. [98] However, the same cannot be said for the Grievor’s statement about “sucking inmates’ assholes”. In my view it clearly violated the statement of ethical principles in a number of ways. It was not courteous. It was contrary to the Grievor’s responsibility to his colleagues under which he was to foster and maintain working relationships based on mutual respect, dignity and cooperation. It was degrading and unprofessional. Given Mr. Lapointe’s statement that he would report the Grievor it was clearly unwelcome and harassing. It violated the requirement to act in a respectful manner towards his fellow workers. [99] The statement was not just swearing. It was a comment directed straight at Mr. Lapointe after he had told him that if he continued to speak to him like that, he would report him. It accused him of preferring inmates to staff. It was a sort of reprisal statement for Mr. Lapointe’s suggestion that he would report him. Unlike the other incidents relied on by the Employer there was no suggestion that the Grievor should have been trained not to speak to his co-workers in that manner. Nor was there a suggestion that the Grievor used to converse with his fellow COs like that. Of course, they swore with each other, but I highly doubt that COs angrily accuse one another of sucking inmates’ assholes and there is no evidence of that in any case. [100] I was struck by a statement the Grievor made about the loading dock incident. He testified that he had only been at the laundry for a few weeks, and it was unacceptable for inmates to “chirp” him because he did not know them and had not yet developed a rapport with them. Much the same thing could be said about the Grievor’s interactions with his new co-workers. He had only worked with them a few weeks. He had been told by Mr. Ferlito and Mr. Lapointe on September 5 that things were different in the laundry than they had been when he was a CO. Yet he assumed that he had sufficient rapport with Mr. Lapointe that he could accuse him of sucking inmates’ assholes in an angry way and that was OK. He did so even - 39 - after he had been warned by Mr. Lapointe that it was not OK. Even if it had been that way when he was a CO, which I seriously doubt and about which there was no evidence, he failed to recognize that things were different in this area of the institution. He failed to recognize that Mr. Lapointe did not find his comments acceptable and modify his behaviour accordingly. [101] This is a deeply unfortunate situation. The Grievor lost his job when he went into the laundry unprepared for the way in which it was different than what he was used to. He engaged in inappropriate behaviour which in the normal course would likely warrant a minimal discipline response. However, this is not the normal course. The Grievor was a party to the LCA which provided strict terms for his reinstatement to employment following a previous discharge. It is my obligation and duty to apply the LCA in accordance with the agreement of the parties. Regretfully, I must find that the Grievor’s statement regarding “sucking inmates’ assholes” to Mr. Lapointe took place as alleged, was deserving of some disciplinary response, and violated the statement of ethical principles. In these circumstances the parties agreed in the LCA that the appropriate discipline is dismissal and I have no authority to modify that penalty. Accordingly, the grievance is dismissed. Dated at Toronto, Ontario this 28th day of March 2023. “Brian McLean” ____________________ Brian McLean, Arbitrator