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HomeMy WebLinkAbout2010-0606.Khan.12-04-11 Decision Crown Employees rieva nce Settlement oard 1Z8 l. (416) 326-1388 x (416) 326-1396 t des griefs es employés de la t Z8 l. : (416) 326-1388 léc. : (416) 326-1396 UNION#2010-0530-0062 IN THE MATTER OF THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ETWEEN G B Suite 600 180 Dundas St. West Toronto, Ontario M5G Te Commission de règlemen d Couronne Bureau 600 180, rue Dundas Oues Toronto (Ontario) M5G 1 Té Té Fa GSB#2010-0606 AN ARBITRATION Under B Ontario Public Sployees Union (Khan) Union - and - (Ministry of Community Safety and Correctional Services) Employer ervice Em The Crown in Right of Ontario BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION ice Employees Union FOR THE EMPLOYER Tim Hannigan O G ntario Public Serv rievance Officer Services ractice Group Omar Shahab Ministry of Government L C abour P ounsel HEARING er 7, 2011, January 25, 2012. March 25, Novemb - 2 - Decision [1] The grievor was a fixed term Correctional Officer who began her employment in December of 2005 at the Mimico Correctional Centre. She later moved to the Toronto Jail continuing to work as a fixed term Correctional Officer. On October 14, 2009, she was suspended with pay pending investigation. On March 29, 2010, Ms. Khan attended a meeting convened by Rose Buhagiar, Superintendent of the Toronto Jail. On April 13, 2010, the grievor received a letter of termination that stated, in part: On Monday March 29, 2010 a meeting was held in my office to allow to an opportunity to respond to the following allegation: 1. You failed to disclose your relationship with ex-offender C.B., contrary to the Adult Institutions Policy and Procedures Manual, “Statement of Ethical Principles”, “Conflict of Interest” and “Staff Conduct and Discipline”, and Standing Order 2.23, “Involvement with Inmates, Ex-Inmates or Their Families or Friends”, copies of which are attached. 2. You were involved in an ongoing relationship with ex- offender C.B., contrary to the Adult Institutions Policy and Procedures Manual, “Statement of Ethical Principles”, “Conflict of Interest” and “Staff Conduct and Discipline”, and Standing Order 2.23, “Involvement with Inmates, Ex-inmates, or Their Families or Friends”. 3. You entered into a business relationship with ex-offender C.B., by renting your apartment to him, contrary to the ……… ……. I have reviewed all of the information available, including that provided by you and your representative. I am satisfied that all three allegations are substantiated. In determining the appropriate penalty, I have considered the serious nature of the allegations and the subsequent findings; the impact on the employment relationship; your length of service and your employment record. I have also taken into account your admission of the allegations, your apology and - 3 - considered those in conjunction with your lack of justification and explanation to the fact that you knowingly withheld information regarding this conflict of interest, thereby, breaching the Employer’s trust. I have determined that you will be dismissed for cause from employment with the Ontario Public Service, effective immediately, pursuant to Section 34 of the Public Service of Ontario Act. Please be advised that you have the right to grieve your dismissal pursuant to Article 22.8.2 of the collective agreement. [2] Shortly thereafter the grievor filed a grievance that she was discharged without just cause. At the hearing, the Employer’s position in opening statement was consistent with the above letter. It asserted that there was just cause for dismissal and that the evidence would establish that the grievor’s behavior caused an irrevocable severing of the employment relationship. [3] The Union took the position that while it was true that the grievor has known C.B.’s family for years, she did not know that he had been incarcerated until many months after his actual period of confinement. It was conceded that she did rent her condominium to C.B. but she did so before knowing of his criminal history. It was not until the point where she was asked to act as surety for C.B. that she became aware of his background. The grievor should have made the Employer aware of her relationship at this point but she failed to do so. The Union conceded that there is no question that she made a significant error in judgment. However, she has stated repeatedly that she is sorry for that failure and very much wants an opportunity to prove to the Employer that she can be a good employee. While there can be no doubt that some level of discipline is warranted, discharge is too severe. [4] As noted by the Employer in its opening statement, most of the salient facts that are not in dispute. - 4 - [5] David Ruttle, Security Manager at the Toronto Jail testified in these proceedings. He had previously held the position of staff trainer from 2005 until May of 2010. In this capacity he trained Correctional Officers new to the Jail whether they arrived as a transfer from another institution or directly from their training at Bell Cairn. He met and provided training to Ms. Khan. Both transferred and new Correctional Officers receive one week of orientation. As was his usual practice, Mr. Ruttle filled out an employee orientation checklist with Ms. Khan. A copy of that checklist was provided which indicated Ms. Khan acknowledged receipt of the Toronto Jail standing orders dated April 28, 2009. [6] Mr. Ruttle also relayed that it was his practice when reviewing the policy about conflict of interest he would relay a personal experience. He testified that he hoped through relating his own experience he could impart on new employees that significant damage could be done as the result of a seemingly small event. He was unmoved in his evidence during his cross- examination when it was suggested that the grievor had no recall of this personal anecdote. It was also suggested that the grievor would say she never received copies of the Conflict of Interest and Post-Service Directive or the Rules of Conduct for Public Servants. Mr. Ruttle stated that these documents are part of every orientation and was included in the binders that the grievor received. She acknowledged receipt with her signature. [7] Mr. Ruttle also testified that he was contacted in early October of 2009 by Mr. Raposo, the Security Manager at the time, to determine whether the grievor was living with C.B. His evidence was congruent with his occurrence report filed at the time which stated: - 5 - Sir, on Saturday October 10th, I was assisting Mr. Raposo in the gathering of information about a Correctional Officer who currently works at the Toronto Jail. Mr. Raposo informed me he had information that stated C.O. Khan was living with C.B, an offender. He informed me that they might be living at a particular address. I entered the building at approximately 0945 hours, I was looking for an occupant directory and could not locate it. The security officer on duty opened the inner secure door and asked what I was looking for. I told him I was looking for a person with the last name of B. he said to wait a second. He then proceeded to access his computer registry. He informed me that anyone named B. was not registered at the Condominium. I then asked if he might have a person with the last name of Khan registered. He typed in the name as I waited. He said, “look here” as he pointed to the computer screen. I saw the name Khan, Shabina occupying suite 408. The security guard also pointed to the screen and said “there is a C.B. also living in this suite.” I thanked the security guard and departed the condominium. I walked over to Mr. Raposo and updated him on the conversation I had with the security guard. Mr. Raposo wanted to see this information for himself and we both re-entered the condominium. The security guard again showed us both on his computer screen the information he had shown me earlier. I also took note of the license plate on file. We watched the building from different viewpoints for a few hours to see if C.B. would be departing from the building. At no time did we see him. [8] In cross-examination Mr. Ruttle conceded that he had no way of knowing whether C.B. was living at the condominium as of October of 2009 when he spoke to the security officer. He was at the condominium address for a number of hours but never caught sight of C.B. [9] Ms. Rose Buhagiar was the Superintendent of the Toronto Jail at the salient time. After the Employer became aware of the grievor’s relationship with C.B. she was suspended with pay. The matter was then sent to the - 6 - Correctional Investigation and Security Unit. Ms. Buhagiar was sent a copy of three pages of a four-page investigation report dated December 14, 2009. It is apparent from the investigation report that the investigator was of the view that Ms. Khan’s relationship with C.B. was more than platonic. It appeared on the face of the document that this conclusion was drawn because she had “posted bail and provided her mortgage as collateral.” The findings of that report stated:  That CO Khan failed to disclose her relationship with CB and, it is reasonable to conclude that she did not intend to, only doing so when confronted with same.  That CO Khan was involved in an ongoing relationship with C.B.  That CO Khan entered into a business relationship with C.B. when she rented her apartment to him. [10] On March 29, 2010, Ms. Buhagiar held a meeting attended by the grievor and her Union representative. Ms. Buhagiar testified that the purpose of the meeting was to provide the grievor with an opportunity to disclose any information that should be taken into account in the determination of a penalty. During the meeting the grievor admitted that she was wrong in not disclosing her relationship but that her omission was “out of innocence”. She admitted that she had read the standing orders and was aware of her obligation to report any such relationship. She was very sorry and had only wanted to help out a friend. The Union rep indicated that C.B. was not a boyfriend and that the grievor no longer had contact with him. Ms. Khan expressed how sorry she was throughout the meeting. [11] Ms. Buhagiar reviewed why the facts in this matter led to the grievor’s dismissal. She stated that even if the grievor had committed only one of the three allegations set out in the letter of termination, there would still be just - 7 - th offenders – either current or past – they no longer trust that employee. [12] be romantic in order to be disclosed. All relationships must be reported. [13] believe that the grievor had shared any OTIS information with anyone. cause for discharge. The grievor’s failure to disclose the various aspects of her relationship with C.B. was a severe breach of the Employer’s trust. For people who are responsible for the care, custody and control of offenders there must not be even the potential for impropriety. As a Correctional Officer the grievor would have complete access to OTIS, the offender tracking system, and all his court records. She could have breached security by sharing with him notations made on the file and a breach such as this could cause significant problems for herself and other staff. Ms. Buhagiar stated that when Correctional Officers learn that their co-workers have relationships wi In cross-examination Ms. Buhagiar said that her decision to terminate the grievor was not based on the fact that the grievor’s relationship with C.B. was more than platonic. She said that a relationship between a CO and an ex offender need not Ms. Buhagiar conceded that she did not have the full four pages of the report when she decided to terminate the grievor. However, in her view she had sufficient information to make an informed decision. She also agreed that the grievor was forthright during the March 29, 2010 meeting and acknowledged her wrongdoing. Finally, Ms. Buhagiar agreed that there was no evidence or reason to - 8 - [14] ined there until transferring to Toronto Jail in April of 2009. She said that she quickly [15] m to do their own reading. She recalled no specific discussion regarding the Conflict of Interest rules but she did read the [16] ed in and lived there only for a few months because she hated it. She moved back in [17] mbers but it was not something that was shared with her The grievor testified on her own behalf. She is a 27-year-old woman who graduated from Sheridan College’s Correctional Workers program. She later took the training at Bell Cairn and began to work as a fixed term Correctional Officer at Mimico in December of 2005. She rema learned to love the work and wanted Corrections to be her career. Ms. Khan reviewed the training she received when she moved to the Toronto Jail. She said that she and another person were in a class for “about a week reading the standing orders”. She recalled that Mr. Ruttle was not always with them, leaving the policies in this regard. In the fall of 2008 Ms. Khan was living with her parents and was encouraged by her father to “do something with her life”. It was as a result of his urging that she purchased a condominium on the Queensway. She mov with her parents and decided that she should rent out her property. Ms. Khan testified that she has known the B family for in excess of ten years. She came to know them through association with her cousins. She would go to their home on Sundays and spend time with the sisters of C.B. She was about 15 when she first met C.B. She said that she became aware “at some point” that he got into trouble. She had overheard discussions amongst family me - 9 - [18] working as a C.O. she had any knowledge of C.B.’s criminal wrongdoing. She said [19] ollars per month. At no time during his occupation in her condo did she live with him. She would attend at the condominium building from [20] r, who was considered the “leader” of the family, and after a long discussion it was decided that the grievor would [21] in detail. He left Canada for approximately eight years but returned to his family in Toronto. In Ms. Khan’s evidence in chief she was asked if, while she was “nobody let me know anything”. She became aware of his criminal background when he asked her to “bail him out” in July of 2009. In March of 2009 C.B. asked Ms. Khan if he could stay in her condominium. She asked her father if this was acceptable and shortly after C.B. moved in and paid her rent in the amount of “whatever he could afford”, four hundred and fifty d time to time because she utilized the gym facilities but she did not reside with C.B. The grievor stated that in July of 2009 C.B. called her and told her that he was being charged with assault with a weapon. He asked if she would bail him out and allow him to continue to stay at the condominium. Ms. Khan immediately called C.B.’s older siste agree with C.B.’s requests. She attended with him in court and put up five thousand dollars bail for his release. Ms. Khan said that certainly at the point where she became C.B.’s surety she knew of his background and was aware she should report her relationship to her employer. However, she was “not thinking as a C.O – but as a friend.” - 10 - ying for over 200 positions and the financial impact has been huge. She has lost [22] enied knowing that C.B. was serving an intermittent sentence at Mimico while she worked there. She did not think [23] nship. It did not occur to her because she thought about the situation as her personal life having nothing to do with work. The first time She acknowledged that she exercised poor judgment and made the “worst decision of her life.” She testified that if she were reinstated she would never jeopardize her job again and would uphold the integrity of the position. Since her termination she has been without work despite appl her condominium and her independence. She continues to be friends with the B. family but has not spoken to C.B. since her termination. In cross-examination Ms. Khan was asked if she knew of C.B.’s criminal background at the time she began to work at the Toronto Jail. She said that she was not aware of actual crimes committed, that she had overheard some talk but it was not confirmed until she signed his surety. She did not want to raise the matter with anyone in the family because she did not “want to step on anyone’s toes.” She d to ask him of her criminal background at the point where she agreed that he could rent her condominium. She testified that she understood that as C.B.’s surety she had certain responsibilities. She was to ensure that he “stayed away from his victim” and that he reported to his probation officer as required. She agreed that when she returned to work after attending at court with C.B. she still did not report the relatio it occurred to her that she had made a large mistake was at the point that she got suspended. - 11 - [24] on the occurrence report because she thought she was just to address the allegation she had just heard. She wrote about what had just been put to her in the allegation. She felt rushed at the time y. EMPL [25] letter of termination were proven by the Employer and establish sufficient grounds On the day the grievor was suspended she was confronted with the allegation that she was living with C.B. She was asked to write an occurrence report before leaving the jail. All she wrote after setting out the context was “I have known C.B. for approximately ten years and we’re very good friends. C.B. does not reside at my address.” In cross-examination Ms. Khan conceded that it might have been more forthright to say that he was living at her condominium. However, at the time she wrote that they were not living together because, in fact, she was living with her parents. She thought she was being accused of living with C.B. and she stated that she was not. She also stated that she did not mention that she had acted as C.B.’s surety in this report because she was advised by the Union that there would be an investigation meeting and that was the forum for her to disclose all of her information. When it was later established that she did not speak with a Union representative until after she had been suspended she testified that she had not written more and was not thinking clearl OYER SUBMISSIONS Mr. Shahab, for the Employer, submitted that the grievor’s actions have caused a fundamental and irreparable breach of trust in the employment relationship. This breach cannot be restored and for that reason the grievance must be dismissed. The three reasons given in the grievor’s - 12 - [26] of misconduct at issue are extremely serious. There is an ongoing obligation to [27] t result. It is irrelevant whether in this case there was an actual security risk such as the smuggling of contraband. It is sufficient that there [28] t that she had acted as surety. While the Union might characterize these infractions under for discharge. Ms. Khan violated the Employer’s policies and standing orders over a sustained period of time without regard for consequence. The Employer urged that there are a number of reasons that this grievance must be dismissed. Taking these in turn, it is obvious that the acts report relationships with inmates, their families or friends. A failure to do so fosters basic distrust between the Correctional Officer and the Employer. This type of offence goes to the very heart of the trust because it affects safety and security the Employer said. These policies and standing orders serve as a critical foundation in the correctional setting. The potential for offenders to abuse relationships with Correctional Officers is real, not speculative. If some information about the running of a facility inadvertently or otherwise was made known to an offender, significant damage migh was a potential for harm that has brought about the Employer’s complete lack of trust. Mr. Shahab suggested that this case would have been different if there had been a single lapse of judgment. However, that is not the case at hand. The grievor did not report the relationship in the first instance, she did not report that she was renting her apartment to C.B. and she did not repor one broad heading, it is essential that this Board keep in mind that there were three distinct acts each of which were just cause for discharge. - 13 - [29] ility of rebuilding trust. The grievor was not forthright until many months later when she was sat across [30] The Employer conceded that the grievor has claimed remorse. However, it is important to review the evidence and determine the actual point when her regret was advanced. Ms. Khan’s remorse is self serving rather than genuine. The most genuine type of remorse is some one who self reports an infraction. The least sincere is regret that is expressed at the point of being confronted with an impropriety. A confession and apology that comes after being caught is suspect and that is what happened in this case. There is no question that Ms. Khan failed to reveal any information until she was called into a meeting. She was made aware that the Employer knew about C.B. She could have, and should have, made it known at this point that she had acted as a surety for C.B. She did not. She revealed no information beyond what was presented to her. Her silence in this regard reveals her lack of contrition or regret. Had she been more forthcoming at this point, this would have been a very different matter. The report that the grievor wrote after being ordered to do so was beyond incomplete. It was misleading. The grievor’s failure to be completely candid and forthright in this first discussion weighs immensely against the possib from an SIU investigator. She could have called the Employer before this and provided more information but she did not. Mr. Shahab contended that even in the grievor’s evidence she was not completely forthcoming. Her testimony that she was not aware that C.B. had been incarcerated until she was asked to act as surety is, simply put, not credible. Additionally, Ms. Khan’s evidence that Mr. Ruttle did not talk about the matter of disclosing relationships during her orientation should be - 14 - d not occurred to her” that her relationship was a problem. But that does not stand up to 1] The Employer suggested that there are few, if any, factors that would [32] General and Correctional Services) and OPSEU (Cassidy) (1998), GSB#456/96 seen as nothing more than an effort to avert responsibility. This matter is of particular import because the grievor said that it “just ha scrutiny if this Board accepts Mr. Ruttle’s evidence that he went over this issue generally and specifically with a personal anecdote. [3 mitigate the penalty imposed in this case. The grievor was a fixed term Correctional Officer with less than four and a half years employment. The Employer relied upon Re Cottenoir and Treasury Board (Solicitor General Correctional Services of Canada) [1997] PSSRB File No. 166-2- 27324; Re O’Connell and Treasury Board (Solicitor General Canada – Correctional Services [1997], PSSRB File Nos. 166-27507 and 27508 and 27519; Re Lachapelle and Treasury Board (Solicitor General Canada – Correctional Services) [1994], PSSRB File No. 166-2-23956; Re Simard v. Treasury Board (Solicitor General Canada – Correctional Service) [2003], PSSRB File No 166-2-31695; Re Francis and Treasury Board (Solicitor General – Correctional Service Canada) [1993], PSSRV File No. 166-2- 24111; Re Canadian General Tower Ltd. and United Steelworkers of America, Local 862 (2003), 118 L.A.C. (4th) 193 (MacDowell); Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Bellamy/Brown) (2011), GSB#2009-2053 (Petryshen); Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Larkin) (1994), GSB#2844/92 (Verity); Re The Crown in Right of Ontario (Ministry of the Solicitor - 15 - arsons and Treasury Board (Solicitor General Canada – Correctional Service) (1996), 56 L.A.C. (4th) 136 (Chodos). UNIO [33] nion, agreed with the Employer that most of the salient facts are not disputed. The real issue this Board will have to deal [34] her first meeting with the superintendent Ms. Khan made significant acknowledgements regarding her conduct. She continued [35] relatively short-term employee made an error in judgment and a suspension is a more appropriate response. Any employer (Leighton); and Re P N SUBMISSIONS Mr. Hannigan, for the U with is not credibility but what are the implications of the grievor’s acknowledged conduct. The Union conceded that this case is about trust. However, the Union is of the view that trust can be rebuilt and this is a case where that process is possible because the grievor has taken responsibility for her actions from the outset of this dispute. In to cooperate with the investigators and her evidence before this Board was forthright and fulsome. The Union asked the Board to recall that the grievor testified that she loved her work. Indeed, her education was geared to preparing her for this type of work. She had suffered losses both financial and emotional as the result of her termination. More than anything else Ms. Khan was an opportunity to prove to this Employer that she is trustworthy. She was discipline free at the time she was terminated and that should mitigate the severity of the penalty. This is a case where a - 16 - ition of a [36] re are urther, it is not the relationship that was wrong it was the failure to disclose the relationship that [37] idence that the grievor realized that C.B. had a criminal record until she acted as a surety. This is not the type of [38] etween the grievor’s evidence and Mr. Ruttle is a red herring, the Union asserted. She was not suggesting that she was unaware of [39] , she was asked if she resided with C.B. and she responded to the questions. She did not lie and she did concern about deterrence would be assuaged with the impos substantial suspension. While it was conceded that the grievor should have disclosed her relationship with C.B., it should be recalled that this is not a case where the grievor had care or control over C.B. nor is this an instance where the allegations involving passing of contraband. F caused the Employer to discipline the grievor. There is no complete prohibition against friendships such as these. Mr. Hannigan urged that there was no ev fact that is discussed around a family dinner table. It is information that individuals and families like to conceal. Any discrepancy b the policies and standing orders, she simply did not recall Mr. Ruttle’s personal anecdote. The Union took issue with the Employer’s contention that the grievor’s first written report was misleading. To the contrary not hide information. She simply responded to the question asked and did so accurately. She should not be faulted for that. - 17 - [40] nity Safety and Correctional Services) and OPSEU (Adam) (2005), GSB#2003-0892 (Herlich); and Re The Crown in ng the Union urged that while the grievor ought to receive some level of discipline, she should be given another chance. DECI [42] or standing orders said to have been breached. Some versions of this policy have been before [43] that there is cause for discipline and therefore it is not necessary to make that determination. While that concession is laudable, it would have been extremely difficult in these circumstances to ask this Board to find no just cause. The Union relied upon Re The Crown in Right of Ontario (Ministry of Natural Resources) and OPSEU (Wickett) (2005), 143 L.A.C. (4th) 14 (Petryshen); Re The Crown in Right of Ontario (Liquor Control Board of Ontario) (2008), GSB#2007-3507 (Watters); Re The Crown in Right of Ontario (Ministry of Commu Right of Ontario (Ministry of Correctional Services) and OPSEU (Johnston) (1983), GSB#14/83 (Verity). [41] In closi SION In this case, the Union did not take issue with the policy the Board in past cases and it has been consistently found to be reasonable and appropriately connected to the Employer’s business. Usually the first issue to address in a discharge grievance is whether there was just cause for discipline. If the answer to that question is in the affirmative, the next matter is whether the level of discipline imposed was appropriate in all of the circumstances. In this case, the Union and the grievor have conceded - 18 - [44] the face of the Union’s concession, to look at the nature of the misconduct. [45] to comply with her obligations that are set out clearly in Ministry policies. [46] s misconduct or negligence in this matter was of a very serious nature. As suggested by Vice Chair Petryshen in Re MCSCS & OPSEU (Bellamy & Brown) (supra), it is useful, even in Irrespective of the differences in evidence regarding the details of the training/orientation Ms. Khan received upon arriving at Toronto Jail, there is no dispute that she knew and understood her obligations regarding the reporting of relationships with ex-offenders and their families. Yet she continuously failed to report her various types of relationship with C.B. to the Employer. This constituted a significant failure Further, Ms. Khan’s failure to self-report the relationship represents a breach of trust that takes place over many months. This is not an instance of a momentary lapse in judgment. Even if, as the grievor claims, she did not know for sure that C.B. was an ex-offender until his court appearance wherein she acted as surety, (a claim I will address later in the decision) a further three months elapsed before the Employer had an inkling of a problem. Unfortunately, even at that point, the Employer’s awareness of this situation did not come as a result of any confession or self-reporting from the grievor. The extent of the grievor’s failure to comply with clear longstanding policies is considerable. There can be no doubt that the grievor’ - 19 - [47] s approached and confronted with these allegations, she could have and should have taken that opportunity to reveal [48] urred as the result of the grievor’s failure in this case, the potential for some type of negative [49] It is also troubling that at the point that the grievor is confronted with the fact that the Employer was aware of her relationship with C.B., she continued to be less than completely forthcoming. While she suggested in her evidence that she merely answered the question that was put to her at the time and that it was her intention to disclose more at a later date, this was a missed opportunity to reveal the extent of her involvement and her regret. The Employer suggested that it suspected that she was waiting to learn of the extent of its knowledge before making any incriminating statements. I understand that skepticism. This failure reveals another instance of poor judgment. While I appreciate that the grievor might have been taken aback by the speed in which she wa every aspect of the issues raised. The Employer argued that the facts in this matter reveal a breach of its most significant area of concern, namely safety and security. I have to agree that while there might not have been consequences that occ outcome is sufficient for a finding of a breach of trust. As noted above, there were some inconsistencies in the evidence regarding precisely when Ms. Khan became aware of C.B.’s criminal record. When asked this question at different times she answered differently and somewhat evasively. For example, she said in her evidence in chief that she did not know of his past “when I first met him.” It was a “subject that was never raised.” She went on to say that she “knew he got in trouble” but she did not know why. She said that she just overheard people talking about it. Later in - 20 - asked again if she knew he had problems with the law she testified that “no, not specifically – I [50] the precise transgressions, she knew or ought to have known that she should have reported her relationship long before being [51] and the public at large. I have found these cases helpful, but note that the her evidence she said that she “believed” that she did not have knowledge of any wrongdoing on his part while she was a Correctional Officer, because “nobody let me know anything.” She said that she became aware when he asked her to be his surety. However, when asked in her cross-examination if she knew that C.B. was a former offender when she was began working at the Toronto Jail she said “I was not aware of actual crimes committed – there was some overheard talk – he may have done something but it was never confirmed until I signed his surety.” Later when knew he had some problems – I had no access to OTIS.” These vague and inconsistent answers have led me to find that the grievor did know that C.B. had a criminal past. While she might not have an exhaustive knowledge of asked to act as his surety. The Employer provided a number of arbitration decisions involving federal Correctional Officers who were fired for various inmate relationships and failure to report it. While a number of those cases involved breaches of greater magnitude, each dismissal was upheld despite, in some circumstances, significant seniority. It was noted that a breach of trust such as the matter at hand must cause an arbitrator to weigh not only the interests of the Employer and the grievor but also those of other employees, inmates facts are quite different than the situation before this Board. - 21 - [52] when confronted with a contraband incident” and after weighing various mitigating factors, he determined that [53] tional Officees in circum tre constitutes a serious error in dgment. While that error may not amount to dishonesty, it [54] violation of a policy regarding safety and security. I am of the view that the facts in this case In Bellamy/Brown (supra), Vice Chair Petryshen was asked to determine whether discharge was too harsh a penalty for two grievors who were terminated for intentionally permitting the passing of contraband between two units. After finding that the grievors’ conduct amounted to a “complete failure to comply with their obligation discharge was an appropriate penalty. In Re Larkin (supra), this Board decided that an unclassified Correc r was terminated for just cause when she failed to report chang stances regarding her paroled spouse. It was noted at page 13: While we have serious concerns as to the accuracy of some of the statements contained in the report of security Officer. R.L. Campbell to Superintendent Simmons, on the evidence adduced, we are satisfied that the dismissal was based solely on the grievor’s failure to abide by the requirements to communicate information of significant changes in the relationship with Tulk. In our view, the grievor’s failure to communicate in a timely fashion with senior management at the Guelph Correctional Cen ju does, in our view, adversely affect the viability of the continued employment relationship. The Union urged that the Employer’s failure to adopt the principle of progressive discipline should lead to the grievance being upheld. I think not. This is not a case where there has been a short term or momentary lapse in judgment. There has been a prolonged and significant override the usual imposition of progressive discipline. - 22 - [55] pposed to sorrow for the fact that she has been discharged from a position she had thought she would [56] an said throughout her evidence that she acted as a friend and not as a Correctional Officer. Be that as it may, her sustained failure to [57] until the Employer learned of her association with C.B. by some other means. It is this sustained period [58] It also contended that the grievor had rehabilitative potential given her ability and willingness to accept responsibility for her mistake and fervent wish for another opportunity. I accept that the grievor has shown remorse, although I am not convinced that her remorse was for her actions and the potential consequences of her failure to report as o hold throughout her career. In any event, heartfelt regret is insufficient in this instance for this Board to order re-instatement. In this case, there were a number of occasions when the grievor could have and should have informed the Employer about her relationship with an ex- offender. Ms. Kh appreciate and act upon her responsibilities as a Correctional Officers is most worrisome. Even if I accepted that the grievor had absolutely no knowledge of C.B.’s past criminal record until the summer of 2009, at the point where she was asked to act as his surety, she should have immediately approached the Employer. Instead she allowed months to go by of silence after she had certain knowledge that she was in violation of the policy that has caused me to deny the grievance. A review of the usual factors that arbitrators consider in deciding whether to mitigate the penalty of discharge do not particularly assist the grievor in this matter. Her service is relatively short as a fixed term employee. While she - 23 - did not have past discipline on her record, the seriousness of the offense and, as mentioned above, the lengthy period of her silence are factors too grave to lead to a finding for Ms. Khan. There might have been some opportunity for mitigation if the grievor had realized, even as late as October of 2009 that . However, she did not. She never owned up to any impropriety until confronted by the Employer. [59] [60] here was a second grievance that the parties were holding in abeyance of is matter is to proceed, I ask counsel to contact the Board regarding the scheduling of this matter. f April 2012. Felicity D. Briggs, Vice-Chair she was in error and had self reported her situation For all of these reasons, the grievance is dismissed. T which I am seized. In the event that th Dated at Toronto this 11th day o