OPSEU (Reale) v. The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services), 1997 CanLII 22677

EMPLOYES OE LA COURONNE DEL'ONTAfl/0

180 DUNDAS STREET WEST. SUITE 2100, TORONTO ON MSG 1ZB

180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) MSG 1Z8

TELEPHONE/TELEPHONE: (416) 326-1388

FACSIMILE/TELECOPIE: {416) 326-1396

GSB # 99/96, 606/96

OPSEU # 96C434, 96F196

IN THE MATTER OF AN ARBITRATION

Under

BETWEEN

THE GRIEVANCE SETTLEMENT BOARD OPSEU (Reale)

and -

The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services)

Grievor

Employer

BEFORE

N. Dissanayake Vice-Chairperson

FOR THE GRIEVOR

M. Bevan

Grievance Officer

Ontario Public Service Employees Union

FOR THE EMPLOYER

A. Gulbinski

Grievance Administration Officer

Ministry of the Solicitor General & Correctional Services

HEARING

December 6, 1996

January 6, 1997

DECISION

This is a grievance filed on February 23, 1996 by Mr. Marc Reale alleging that he was unjustly suspended without pay. In order to put this grievance in context, it is necessary to review the factual background which is not in dispute in any material way.

The griever was employed as a corrections officer at the Hamilton Wentworth Detention Centre (HWDC) with over 6 years of service. on May 4, 1995, Ms. Marion Jones, Acting Deputy Superintendent (Operations) of the HWDC, had occasion to interview an inmate about an unrelated matter. During the interview the inmate made certain allegations against the griever and another corrections officer. Ms Jones made her superiors aware of the allegations which related to inappropriate sexual behaviour with female inmates. At the request of the employer, the Ontario Provincial Police (OPP) commenced an investigation sometime later in May. On December 15, 1995, the OPP charged the griever with 3 counts of sexual assault and 5 counts of breach of trust. He was arrested and remanded in custody. On December 18, 1995 he was granted bail at $ 10,000 with surety. The judge imposed twelve conditions of bail including the following:

(1) "Have no communication directly or indirectly with any employee or ex-employee of the Ministry of Correctional Services except through his counsel or his agent excluding his union reps and Franko DiMarcantonio."

(2) "Have no contact directly with any inmate or exinmate of the H.W. Detention Centre, Niagara Regional Detention Centre or Guelph Correctional Centre. 11 and

(3) "Stay out of Hamilton except for court or to see counsel."

on January 26, 1996 certain additional charges of a similar nature were laid against the griever. The charges ultimately went to trial before judge and jury and on October 10, 1996 the griever was acquitted on all of the charges.

While the foregoing criminal justice process was underway, the employer took certain actions against the griever at the workplace. The day the griever was first charged and arrested, December 15,

1995, Ms.Jones suspended the griever for 5 working days by issuing the following letter.

Please be advised that under the authority delegated to me by the Deputy Minister1Superintendent pursuant to

Section 22(1) of the Public Service Act of Ontario, you are suspended from duty without pay for five working days effective this date, pending an investigation. During this period you are not to enter the building unless authorization has been given by the Superintendent or myself.

A meeting to discuss the following allegations has been scheduled for Tuesday, December 19, 1995 10:00 hours at Welland Probation and Parole Office, 2nd Floor, 9 Burgar Street, Walland.

That you did engage in sexual advancesjacts against

Ministry clients while employed as a Correctional Officer

at the Hamilton-Wentworth Detention Centre.

That you breached the trust afforded to you in your position as a Correctional Officer.

3• That you breached Ministry policy by your involvement with inmates and relatives of inmates while employed as an employee of the Ministry of the Solicitor General and Correctional Services.

That you were absent from your post and in other areas of the Institution without authorization, contrary to Ministry policy.
That you supplied contraband to inmates while on duty as a Correctional Officer.

As this meeting may result in disciplinary action, you may have an employee representative of your choice present. You are further advised that, should you choose not to attend, the allegations will be heard in your absence.

This suspension was continued for 5 further working days by the following letter dated December 18, 1995 issued by Ms. Cathy Morris, Deputy Superintendent Services.

Pursuant to the letter dated December 15, 1995 signed by Ms. M. Jones, Deputy Superintendent(A), I am advising you that, by mutual consent, the meeting scheduled for December 19, 1995 at 10:00 hours in Welland P&P Office is cancelled.

I am further advising you that you will continue to be suspended without pay pursuant to Section 22(1) of the Public Service Act for another period of up to five (5) days pending further investigation. This suspension period will be in effect up to December 31, 1995.

We will advise you further regarding this matter.

The griever's suspension without pay was further extended by three 20 day periods by the following letters issued by Ms.Pauline Radley, Regional Director, 'which were dated December 28, 1995, February 7, 1996 and March 7, 1996 respectively.

Pursuant to the letter dated December 18, 1995 to you signed by Ms. c. Morris, Deputy Superintendent, Services,

Hamilton Wentworth Detention Centre, please be advised that as Regional Director, Western Region, I am hereby suspending you without pay for a further 20 working days commencing January 1, 1996. This suspension period will be in effect up to February 10, 1996.

Pursuant to my letter dated December 28, 1995, please be advised that I am hereby suspending you without pay for a further 20 working days. This suspension period will be in effect up to March 8, 1996.

Pursuant to my letter dated December 28, 1995, please be advised that I am hereby suspending you without pay for a further 20 working days. This suspension will be in effect up to April 9, 1996.

It is clear that in this manner, the griever's suspension without pay which commenced on December 15, 1995 was continued uninterrupted until April 9, 1996 for a total of 70 working days.

At the expiration of the griever's last period of suspension without pay, he was dismissed effective April 10, 1996 by the following letter dated April 10, 1996 issued by the Superintendent of the HWDC, Ms. Diane poherty:

This correspondence is written pursuant to a letter dated March 7th, 1996 from Regional Director Ms. P. Radley authorizing the continued suspension for 20 working days without pay effective until April 9th, 1996.

This letter will serve as official notice that, effective immediately, you are being dismissed for cause pursuant to Section 22(3) of the Public Service Act. This decision is based on your conduct being incompatible with your position as a Peace Officer and for matters related to serious breaches of trust. You have the right to grieve this decision in accordance with provisions of the Collective Agreement.

You are requested to make the necessary arrangements through your employee representative to return all issued Ministry clothihg/property, including your Ministry I.D. card, keys, uniform and Standing Orders, at the earliest opportunity to Mr. J. Boychuk, Staff Training Officer.

The griever had filed the instant grievance on February 13,

Following his dismissal, he filed a further grievance alleging dismissal without cause.

Following the griever's acquittal, the union and the employer reached a settlement whereby it was agreed that all discipline imposed on the griever stemming from the charges in question would be rescinded. The griever was reinstated in his job, and compensated for all lost wages from the date of dismissal April 10,

1995 to the date of reinstatement. That for all intents and purposes settled the griever's discharge grievance. However, the employer has continued to refuse to compensate him for the period of suspension- December 15, 1995 to April 9, 1996 -which preceded his dismissal. In the instant grievance the union seeks an order that the griever be fully compensated for lost wages and benefits during that period.

The employer's defence is two-fold. Firstly, it is submitted that the suspensions were a valid exercise of the authority conferred by s. 22(1) of the Public Service Act. In the alternative, it is contended that there was just cause for the suspensions.

The Authority under Section 22(1) of the Public Service Act to suspend without pay.

section 22(1) provides:

22.-(1) A deputy minister may, pending an investigation, suspend from employment any public servant in his or her ministry for such period as the regulations prescribe, and during any such period of suspension may withhold the salary of the public servant.

Sections 13(1) and 13(2) of the Regulations under the Public

Service Act read:

13.-1(1) Where the deputy minister suspends a public servant from employment pending an investigation, the period of suspension shall not exceed twenty working days.

(2) Despite subsection (1), where in the opinion of the deputy minister, an additional period of time is required to complete the investigation, the deputy minister may renew the period of suspension for not more than twenty working days in each case for such additional periods as are considered necessary.

The parties disagree in several respects as to whether the suspensions without pay imposed on the griever meet the requirements of section 22(1). In addition, it is the union's position that even if they did, that does not relieve the employer from the requirement to prove 11 just cause" for penalizing the griever by denying him his pay.

The union submits that s. 22(1) contemplates an investigation by the employer. Ms. Jones, during her testimony was of the view

that since the legislation does not specify any particular type of investigation, but merely states pending "an investigation", any pending investigation entitled the employer to suspend an employee

under s. 22(1). Under cross-examination she took the position that

an investigation by Revenue Canada of an employee's tax declaration or an investigation by the College of Nurses into the professional conduct of a nurse employed in the OPS, would fit within the provision. The Board strongly disagrees. The authority to suspend

under s. 22(1) pending an investigation is a specific and peculiar

power conferred on the employer for a specific purpose. This is a recognition that the employee's presence in the workplace during an investigation may have a negative impact on the operations and also tend to hinder the employer's investigation. Section 13(1) of the regulations limits the suspension to twenty working days. Section

13(2) permits an extension of the suspension for further periods of

20 days each, but only if "an additional period of time is required to complete the investigation" and for additional periods "as are considered necessary". The legislation thus contemplates that if

the employer elects to suspend an employee pursuant to s. 22(1),

the investigation will proceed and be completed in an expeditious manner. If someone other than the employer is carrying out the investigation, that person or body would not be subject to s.22(1) or the regulations. The employer would not have any control over the speed with which it is carried out. Furthermore, it is the

employer that must decide whether further and additional periods of suspension are required andjor necessary. It is hard to imagine

the legislation contemplating that the employer will make these judgements, when the investigation is being conducted by a third party over whom the employer had no control. Therefore, the Board agrees with the union that section 22(1) contemplates an investigation undertaken by the employer. The Board adopts the statement of Vice-Chair Samuels in Re Miller, 2613/87 at p. 9 that

nrn order to justify a suspension under Section 22(1) of the Public

service Actr a Deputy Minister has to launch an investigation, and the suspension can only be for as long as is legitimately and reasonably needed to carry out the investigation."

The next issue, therefore, is whether the employer did an investigation during the griever1 s period of suspension. The Superintendent of the HWDC, Ms. Doherty attempted to have the Board believe that in addition to the OPP investigation, a parallel internal investigation was undertaken by the employer. The Board does not find that evidence to be credible While Ms. Doherty depicted Ms. Jones' role as that of an investigator and testified that Ms. Jones was instructed to investigate the allegations against the griever and report to her, all of the other evidence contradicts that position. Ms. Jones, clearly and unhesitatingly testified that her role was not that of an investigator. Her role was simply to liaise with the OPP investigators and to facilitate their needs such as arrange for employee and inmate interviews and provide Ministry documents such as work schedules, logs and incarceration records, as requested by the OPP. She was

categorical that she did not interview any employee or inmate and that she did not initiate any action on her own. She clearly testified that she did not see herself as an investigator and denied that Ms. Doherty had instructed her to investigate. Ms. Jones made no notes or records of any involvement she may have had in an investigation. No written report of any findings were ever created by her. Furthermore, during the testimony it was evident that Ms. Jones had little awareness as to the details of the specific allegations made against the griever. The Board has no hesitation concluding that apart from the OPP investigation, no

other investigation was conducted by the employer.

The employer made the alternate argument that in any event the investigation conducted by the OPP was in fact an internal investigation by the employer. This assertion was based on the fact that the OPP and the Correctional Services were under the same Ministry. Indeed counsel argued that an OPP investigation of an employee in any Ministry, would qualify as an investigation by the employer because the OPP and the all the ministries are part of the same Ontario Government. The Board does not agree that the OPP investigation into the alleged criminal conduct of the griever, is

an investigation by the employer for purposes of s. 22(1) of the

Public Service Act. It is true that the OPP and the correctional services are within the same Ministry of Solicitor General and correctional Services. Thus in a technical or corporate sense they are part of the same entity. However, because of that corporate

link, an investigation by the OPP does not become an internal investigation by the Ministry. It is common knowledge that the OPP is in the business of investigating alleged violations of the criminal Code no matter where it occurs within the Province of ontario. Its investigations are not confined to alleged offenses within the Ministry of Solicitor General and Correctional Services

or the Ontario Public Service. If deemed appropriate, the OPP will investigate any alleged offence within Ontario. The employer did not and was not in a position to demand that the OPP investigate the allegations against the grievor. That was a decision the OPP made in accordance with its own policies and priorities. More importantly, the employer was not in a position to instruct the OPP as to what investigations were to be done and when they were to be done. The employer was not in control of the OPP investigation. The evidence indicates that the OPP made its own judgements in these matters just as it would in any other case. There is nothing in the evidence to suggest that the OPP treated this investigation any differently than any other investigation it undertakes in the province or that it gave this investigation any special priority because it involved an employee of the Ministry. The rationale behind the need for an investigation by the employer as a condition

of utilizing s. 22(1) is that the employer must remain in control

over the investigation, particularly with regard to the expedition with which it is carried out. This is a recognition that the employer's right to carry out the investigation unimpeded by the griever's presence in the workplace, must be balanced with the fact

that an employee, who has not been found guilty of any wrong-doing, has his income withheld for the duration of the investigation. Where the employer is not in control, there is no way of enforcing the expedition of the process contemplated by the legislation. Thus in Re Fish, 634/83 (Springate) at p. 13 the Board said

"Presumably this authority (under s. 22(1)] is given to a Deputy

Minister because in some instances it is inappropriate to allow an employee to remain in his position while allegations against him are being investigated" and added "A suspension that was initially justified may cease to be so if the investigation is not pursued with due diligence.11

For all of the above reasons, the Board concludes that the suspension of the grievor from December 15, 1995 to April 9, 1996

was not imposed pending an investigation as contemplated by s.

22(1) of the Public Service Act, and therefore was not a proper exercise of the authority under that provision.

In view of that result, it is not necessary for the Board to consider the union's alternate position that even if the suspensions were a proper exercise of the power under S. 22(1) the employer was obliged to prove just cause to deny pay.

Suspension for Just Cause

The Board next turns to the employer's alternate argument that even if the suspension in question was not justified under s. 22(1) of the Act, the employer had just cause for the suspension.

The employer did not attempt to prove just cause in the form of some culpable conduct on the part of the griever, which would have justified the suspension. It did not attempt to prove the allegations of sexual assault and breach of trust, eventhougn two members of management testified that despite the acquittal by the jury, personally they believed that the griever was guilty of at least some of the alleged offenses. In the initial letter of suspension dated December 15, 1995 the employer made a number of allegations against the griever of breaching Ministry policy by his involvement with inmates and relatives of inmates, by being absent from the post and in other areas of the institution without authorization and by supplying contraband to inmates. There was no evidence whether these allegations were ever investigated. In any event, the employer did not attempt to prove these allegations before the Board. However, the employer did argue that there was just cause in several other forms.

The employer submitted that the bail conditions imposed on the griever, specially the 3 conditions mentioned above at p. 2-3 of this award, left the employer with no choice but to suspend the

griever, because the bail conditions rendered the griever

"unavailable for work". That was said to constitute "just cause".

This position is not substantiated by the evidence. Three witnesses testified on behalf of the employer. The superintendent Ms. Doherty when asked why the grievor was suspended answered "because of the investigation by Ms. Jones". When asked in cross examination whether the griever would have remained at work if not for the bail conditions she did not say that the bail conditions prevented the employer from continuing to employ the griever, or that but for the bail conditions he would not have been suspended. Instead she replied that she had not given it much thought, and went on "may be in a non-correctional role. I don't know." She stated that she did not know why Ms. Radley felt it was necessary to suspend the griever for 3 subsequent 20 day periods. Ms. Radley did not testify.

Ms. Marion Jones, issued the initial 5 day suspension. At no time during her testimony did she state that the bail conditions had anything to do with those suspensions. When her own counsel showed her the initial letter of suspension and asked why she issued it, she replied "On December 15 Mr. Reale was arrested in my office and charged. I was not in my office at the time. I was outside. Then I Suspended him. This is the letter I gave."

Mr. Barry Thomas, Senior Human Resources Consultant with the Ministry, signed two of the letters of suspension on behalf of Ms. Radley. When asked what input he had into the decision to issue those letters, he replied "MY input was that given the nature of the bail conditions I felt strongly that the employee was not available for work". Under cross-examination Mr. Thomas took the position that since the griever was ultimately exonerated by the verdict of the jury, the employer would normally have been obliged to compensate the griever for lost wages and benefits for the period of suspension. However, he stated that the employer did not have to compensate the griever in this case because the existence of the bail conditions made the griever "unavailable for work". However, at the same time Mr. Thomas testified that even if the bail conditions had not been imposed, it would have made no difference and that the employer would still have suspended the griever without pay because of the seriousness of the charges. He said that once the charges were laid, he did not at any time consider whether it was possible to continue the griever's employment.

The Board is convinced that the bail conditions were not in fact a consideration for the griever's suspension. There is no evidence to suggest that it in fact played any role in the ultimate decision. The suspension was commenced by the letter dated December 15, 195. Each subsequent letter (set out above) in continuing the suspension refers to the previous letter. Therefore

all of the letters ultimately refer back to the initial letter. It is significant to note that the letter of December 15, 1995 clearly states that the suspension was "pursuant to section 22(1) of the Public Service Act, ... pending an investigation." None of the subsequent letters change that grounds to suggest that the suspension was now in the exercise of the employer's management right to suspend without pay for cause.

If there is any doubt about the fallacy of the employer's argument, that is removed by examining the timing of the employer's initial letter of suspension and of the imposition of the bail conditions. The evidence is that the employer made the decision to suspend the grievor without pay on December 14, 1995, as soon as it found out that the OPP would be charging the grievor the following day. The letter of suspension was issued and the suspension became effective on December 15, 1995. It is undisputed that the bail conditions did not come into existence until December 18, 1995. Thus at the time the suspension without pay was commenced, the employer could not have known what bail conditions, if any, would be imposed on the grievor. It is simply not possible that the bail conditions could have been a consideration in the employer•s decision to remove the grievor from the workplace. None of the subsequent letters indicate that the grounds or reasons for the suspension had changed since the suspension commenced. The Board is of the view, that if the employer intended to change the grounds from a suspension pending an investigation under the authority of

under s. 22(1) of the Public Service Act, to a suspension for just cause based on the griever's unavailability for work, it had an obligation to state that. If that had been done, the griever could

have, if he so wished, attempted to have the conditions of bail amended to allow his employment to continue. Contrary to the employer's argument, it is not, in the Board's view, reasonable to expect the griever to go to the effort and expense of attempting to have the bail conditions amended, when the letters of suspension clearly state that the suspension was imposed, not because of the

griever's unavailability but because of the pending investigation.

In those circumstances,

believe that amending

there is no reason for the griever to

the bail conditions would make any

difference. In any event, it should not come as a surprise that the Board would expect any employer purporting to discipline an employer for cause to inform the employee of the grounds relied upon as cause. An employer is not entitled to raise grounds constituting just cause for the first time at arbitration.

For those reasons, the Board finds that the bail conditions did not constitute just cause for the suspension imposed on the griever.

The employer further submits that there was just cause for the griever's suspension in that his presence in the workplace pending the investigation had a serious negative impact on the workplace, and particularly on its workforce. This reliance on just cause was

also raised for the first time at arbitration. The letters of suspensions directly or indirectly do not indicate that the employer was relying on anything other than the authority to

suspend under s. 22(1) of the Public Service Act.

What is beyond dispute today is that absent some overriding statutory authority or specific provision in the collective agreement to the contrary, an employer has the onus of satisfying a board of arbitration that just cause existed for the imposition of any discipline. At the same time, arbitrators have recognized that under certain circumstances an employer may have just cause to suspend an employee without pay pending the outcome of criminal charges, even if ultimately the employee is exonerated of any wrong-doing. The seminal case on this issue is Re Phillips Cables Ltd., 1974 CanLII 2366 (ON LA), 5 L.A.C. (2d) 274 (Adams).

At pp. 274-275, the arbitrator described the competing interests that must be balanced.

The question is a most difficult one because arbitrators are asked to choose between two very legitimate but conflicting interests.

One interest is that of the company to operate its activities in an efficient and orderly way. An employee charged with a serious crime, particularly if that crime is alleged to have been committed against the company, can be qualitatively distinguished from other employees. His existence in the work force can cause real hardships to both the employer and other employees. For example, a man charged with rape and assault causing bodily harm might encounter difficulties in dealing with a company's customers or its employees. The customers and employees may prefer not to deal with the man until his status has

been determined by the courts and this may have serious economic consequences for the employer.

consider the following analogy. Suppose an employee exhibits all the symptoms of a rare and very contagious tropical disease and it takes months to assess whether he has actually contracted it. Should his fellow employees bear the risks of contagion until the scientific fact is determined? And should the employer economically support this employee if one concludes that he should be taken out of the work force pending an official determination? The employer argues that he did not cause this misfortune and therefore he should not be forced to share in it. That is one interest-the employer's.

The other compelling and conflicting interest is that of the innocent employee. An employee charged with a crime (or subject to the risk of having contracted a very harmful disease) has an interest in maintaining his source of livelihood until his status has been accurately and fairly determined. Moreover, the employee who is not convicted of the crime (or found not to be subject to the disease) can, with hindsight, point to this fact - the fact that, empirically speaking, he was not a risk to his fellow employees or the company. He can claim that he was mistakenly branded as a potential criminal or medical risk. Therefore, because he is completely innocent and free of any wrong doing, he argues that the company must bear the risk of his innocence if it wants to suspend him.

At p. 276, the arbitrator went on to state:

Because of the innocent employee's compelling interest in maintaining his livelihood, should an employer not have to adduce evidence justifying why the employee cannot continue to work in spite of the charge looming over his head? Are customers likely to be affected? Can he not he closely supervised? Will fellow employees justifiably object to his presence? What are the circumstances surrounding this charge? Could the man be transferred to some less responsible job for the interim? Why must the company await the outcome of the criminal proceedings? Is important evidence only at the disposal of the police? Would immediate disciplinary action be premature and prejudice the individual's criminal trial. All of these factors appear very relevant to us, and a review of the reasoning of other boards of arbitration does not suggest otherwise.

At p. 280 the arbitrator observed:

This board accepts the fact that an employer's needs may have to prevail over an employee's interest but only if some substantial business reason is present. Because both interests are worthy of protection, it is only by restricting the employer• s interest to that which is clearly essential that one can rationally and equitably choose it over an innocent employee's claim to income continuity.

Following an extensive review of the case law, at pp. 282-284, the arbitrator setout the following four principles that should

govern:

In the first place, the board accepts the general principle that in some circumstances a company can suspend an employee charged with a criminal offence pending its outcome in the criminal courts. The presumption of innocence has its purpose and relevance grounded in the substantive area of criminal law. It is not a doctrine that can be unqualifiedly transported to the context of labour relations. Many situations can be envisaged where a work-related criminal charge against an employee will substantially undermine his effectiveness in the work environment. And in these same circumstances it may not be fair to impose any financial obligation upon an employer whether the employee eventually either escapes the charges or does not.

Secondly, while recognizing this interest of an employer, the board is also conscious of the competing interests of the innocent employee who is tragically and mistakenly the victim of a criminal charge. To await the outcome of a criminal charge in the Courts without benefit of employment in the interim can often render a subsequent acquittal quite meaningless.

Thirdly, the board believes that this interest of the innocent employee is the basis to the principle that the company must not have played a substantial role in the investigation leading to the criminal charge. If it has, it presumably possesses sufficient evidence to discharge the employee immediately without waiting for the determination of the criminal Courts. In choosing not to do this, it has subjected the employee to an unnecessary financial penalty and must therefore compensate him when that process fails to convict.

Finally, it is this same employee interest which requires that the existence of the criminal charges must reasonably give rise to a legitimate fear for the safety of other employees, or of property, or of substantial adverse effects upon business. It is not enough that the charges be sufficiently work-related so that if proven they will support the discharge of the employee. This cannot be the test because the charges have not yet been proven. The employee cannot be treated as if he has committed the offence. Rather, he is labouring under the risk of his guilt, and so may be his employer and fellow employees. Accordingly, the company must establish that this risk of guilt presents a substantial and immediate hardship to itself or to its workers, and that this hardship cannot practicably be met by anything other than the suspension of the employee. This requirement accommodates situations where workers or customers refuse justifiably to deal with the employee, or where he cannot be transferred or watched more closely pending an official determination of his status.

To meet this requirement the company will have to investigate the criminal charges to the best of its abilities in order to assess the extent of this risk of conviction and thereby assess what can be reasonably done in the circumstances. Therefore, to this degree, the board agrees with Mr. Fitzpatrick's suggestion that an employer has an obligation to investigate the charge. The substantial business detriment can only be established by assessing the risks of conviction, and this assessment requires an investigation into the circumstances surrounding the charge.

How do those principles apply to the facts facing the board? After a very careful examination, the Board has concluded that even if the employer was entitled to raise these grounds of just cause for the first time at arbittation, it does not meet the requirements set out in Re Phillips Cables.

Firstly, although the employer did not play a substantial role in the OPP investigation which commenced in May 1995 and led to the laying of criminal charges on December 15, 1995, one of the 2 OPP

investigators, detective constable Ms. June Dobson conceded under cross-examination that by December 15, 1995 when the griever was charged, the Police was confident that it had sufficient evidence to obtain convictions on the charges laid against the griever. She admitted that the OPP would not charge anyone unless it had that confidence. She testified that at the time the charges were laid, there was enough evidence which gave the Police 11reasonable and probable grounds" to believe that it could prove that the griever sexually assaulted the complainants. She also specifically stated that at the time she informed the employer that the Police believed that it had enough evidence to obtain convictions on the charges.

If the OPP felt that the available evidence was sufficient to obtain a conviction on the charges laid by proving the offenses beyond reasonable doubt, that should also have been adequate to convince the employer that there was sufficient evidence at that point to dismiss the griever. Nevertheless, there is no evidence to indicate that the employer made any attempt to obtain that available information. Instead it appears that the employer chose to sit back and await the outcome of the criminal trial. Having chosen not to pursue the information that it knew was readily available which would have enabled it to dismiss the griever at that point, (to paraphrase the language in Phillips Cables) the employer subjected the griever to an unnecessary financial penalty and must therefore compensate him when the criminal process fails to convict. In the circumstances, the important interest of the

griever, who after all was not found guilty of any wrong-doing at the time, of continued employment and income, obligated the employer to pursue the available information and decide the griever's employment status with expedition.

Mr. Thomas testified that at the end of January 1996, Ms. Radley received a copy of the crown brief prepared by the OPP, and that in turn copies were provided to himself and Superintendent Doherty. He testified that in discussion between Ms. Radley, Ms. Doherty and himself, it was decided that the information contained in the crown brief warranted the dismissal of the griever without waiting further for the outcome of the criminal trial. There is no evidence whatsoever as to how the employer came upon the crown brief. Detective Dobson testified that she did not provide the employer with a copy. Furthermore, Mr. Thomas did not testify as to what specific information came to the employer1 s attention through the crown brief, which was not previously available to it.

The decision to discharge the griever was made by Ms. Doherty, the Superintendent. Throughout her testimony she did not even mention the crown brief. She certainly did not say that the crown brief had anything to do with her decision to discharge the griever. On the contrary, Ms. Doherty testified that Ms. Radley informed her that she had received certain information which warranted the grievor 1 s discharge. She said that Ms. Radley informed her that she could not divulge the source of that

information, and that she took Ms. Doherty's word without questioning her and dismissed the grievor.

The most significant reason why the employer's claim of just cause to suspend without pay pending criminal charges must fail is the final principle enunciated in Re Phillips Cables. As the Board stated there, "the company must establish that this risk of guilt presents a substantial and immediate hardship to itself or to its workers and that this hardship cannot practicably be met by anything other than the suspension of the employee.11 The Board then went on to describe how an employer must establish this.

To meet this requirement the company will have to investigate the criminal charges to the best of its abilities in order to assess the extent of this risk of conviction and thereby assess what can be reasonably done in the circumstances. The substantial business detriment can only be established by assessing the risks of confliction, and this assessment requires an investigation into the circumstances surrounding the charges.

There is absolutely no evidence that the employer made any investigation at all into the circumstances surrounding the charges against the griever. It made no assessment of the risk of conviction or whether there were any alternatives to the suspension of the griever. The Board refers back to the passage at p. 276 of the Phillips Cables award (see p. 19 supra). There is no evidence to suggest that the employer ever turned its mind to any of the questions set out therein. On the contrary, the Superintendent readily admitted that she gave very little thought to the

possibility of continuing the griever's employment, merely because the charges themselves were serious.

The employer has adduced little or no evidence to establish that the griever's presence in the workplace would have caused it a substantial and immediate hardship. The only evidence on this issue was adduced through Ms. Jones, Acting Deputy Superintendent Operations. She was asked during examination-in-chief whether the pending charges had any impact on the workplace. The question was not whether the presence of the griever in the workplace while the charges were pending had any impact on the work place. In any event, she replied "When this type of criminal charges are pending it has a great impact on staff". When asked how, she replied "They are always trying to establish a professional relationship with inmates. When there are allegations like thi , it undermines all staff. We had shift briefings and de-briefings to discuss what was occurring and to instruct how to handle any fallout from the inmates." When asked "What fallout", Ms. Jones replied "They heard on the news about the charges. They tend to make derogatory comments to staff, but the staff still has to behave professionally. Also we told the staff that if inmates come forward with new allegations they have to be reported and investigated." In cross-examination, Ms. Jones was asked whether she had any knowledge of any specific impact affecting staff as a result of the charges. She replied that there was one staff member, a friend of the griever, who allegedly was "going around

asking questions". However she agreed that this individual was investigated and exonerated. That was the extent of the employer's evidence as to adverse impact. Even this evidence relates not to the impact of the griever's presence in the workplace, but the fact that the charges existed. In other words, the adverse impact referred to by Ms. Jones would have resulted by the mere existence of the charges, whether or not the griever was at work.

In any event, the impact referred to by Ms. Jones cannot reasonably be described as "substantial and immediate hardship", which would justify overriding an innocent employee's right to earn a living. Whatever hardship existed, the employer has not established that "this hardship cannot practicably be met by anything other than the suspension of the employee." In fact, the evidence does not indicate that the employer ever turned its mind to the considerations referred to in Re Phillips Cables such as whether the griever could have continued to work in spite of the charges looming over his head, whether he could be closely supervised or whether his co-workers would have objected to his presence. On the contrary the Superintendent testified that she gave little thought to the possibility of continuing to employ the griever simply because the charges themselves were serious.

Is it reasonable for the Board to assume, or to take 11 judicial notice", in the absence of any evidence, that the grievor's presence in the workplace while charges were pending would cause

substantial hardship to the employer or the griever's co-workers? I do not think so. As Phillips Cables makes it clear, it is incumbent upon the employer to establish that after conducting an investigation. Two of the three management witnesses readily conceded that it was not uncommon for inmates to make up a lot of false allegations. Presumably this would also be known to the griever's co-workers. Therefore, it is just as possible that his co-workers would have been very sympathetic and supportive of the griever in the face of the charges. There is simply no evidence that any co-worker had any concern about the griever remaining in the workplace. Even if inmates made derogatory comments to staff, as Ms. Jones said they were prone to do, there is no reason to believe that such action on the part of inmates would have led to undue or insurmountable hardship on the employer or its staff. Such a relatively minor problem does not override the right to earn a living by an employee, who has not been found guilty of any wrong-doing.

For those reasons, the Board must conclude that the employer has failed to establish just cause for the suspension without pay imposed on the griever.

Since both grounds relied upon by the employer in justification of the suspension have failed the griever must be redressed. The employer is directed to fully compensate the griever for lost wages and benefits during the period of suspension

from December 15, 1995 to the date of his discharge. The Board records the agreement of the parties that the griever would be compensated for 2-1/2 weeks of the five week period during which there was a strike by the employees in the OPS.

The Board remains seized with jurisdiction to deal with any disputes the parties may have in implementing this award.

Dated this 21stday of January 1997 at Hamilton, Ontario

Nima ke

Vice-Chairperson