GSB# 2004-0009

UNION# 2004-0234-0073

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Seguin)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Sean Kearney Counsel Management Board Secretariat

HEARING

August 16, October 1 and December 9, 2004.

Decision

Gary Seguin began working at the Maplehurst Correctional Centre as an unclassified correctional officer on January 16, 2004. He was discharged exactly one month later. When Mr. Seguin was engaged to work at Maplehurst, the Ministry of Correctional Services and Community Safety was not aware he recently had been fired by Management Training Corp (MTC), the firm engaged by the ministry to operate the Central North Correctional Centre (CNCC). The grievor was discharged by the ministry as a result of his prior termination coming to light.

I

Mr. Seguin’s career as a correctional officer began in November of 1994 when he became an unclassified employee at the Guelph Correctional Centre. He successfully competed for a classified position there in 1999 and held it until October of 2001. The grievor was not disciplined during his seven years working in Guelph. When that facility closed in 2001, he accepted a job with MTC at CNCC located in Penetanguishene. The grievor was dismissed by MTC on January 6, 2004. Later that same day he applied to the ministry to be rehired.

MTC’s decision to dismiss Mr. Seguin was precipitated by an incident that occurred in the CNCC kitchen, on December 23, 2003, involving him and a female employee. In a written statement given that day, she alleged he grabbed her buttock with a “light squeeze.” She went on to say: “If the officer had come to me right away and apologized I would never have taken this any further.” The grievor testified he “patted” her buttock as he left the kitchen because he mistook her for another employee. He also testified that, after returning to his unit, he discovered someone had phoned from the kitchen about the incident there. Realizing “it was the wrong woman”, he returned to the kitchen to apologize, only to learn she was in the lieutenant’s office. According to the Mr. Seguin, upon going to the office, he was ordered to return to his unit. This testimony mirrors the contents of an occurrence report completed by the grievor on December 23. In that report, he expressed a desire to “apologize whole-heartedly to the woman in question.” As Mr. Seguin is the only witness with direct knowledge of what occurred on December 23, I accept his uncontradicted evidence as an accurate account of what transpired.

While in the employ of MTC, Mr. Seguin had previously received a three-day suspension for a sexually inappropriate comment made to a nurse two years earlier. According to a notice of caution dated January 25, 2002 and signed by the grievor, the nurse asked him what she should do. He replied “you could do me, but I’m married.” When she objected, he replied: “Sorry. I’m just kidding.”

The grievor learned of his dismissal at a meeting held on January 6, 2004 and attended by a union steward and two management representatives, one of whom was MTC’s human resources manager, Jeff Mayer. Immediately after this meeting, Mr. Seguin and his steward accompanied Mr. Mayer to his office where they prepared a letter appealing the dismissal. According to Mr. Mayer, the grievor said he did not want his wife to know what he had done, because he was concerned she would leave him. They discussed the prospect of him being rehired by the ministry to work at another correctional facility. Mr. Mayer was asked in cross-examination whether he said the grievor would be rehired if the ministry did not know why he had been fired. He replied: “No. I told him … his chances were pretty good.” They also discussed what Mr. Mayer would say if contacted by ministry officials. In particular, Mr. Mayer said he would reveal only the position held by the grievor and the start and end dates of his employment, but not how it had ended. During examination-in-chief, Mr. Mayer testified the grievor asked what would be disclosed to the ministry. Asked in cross-examination whether he might have volunteered this information, the human resource manager replied: “I don’t think so.” When testifying, Mr. Seguin was not asked who first raised the subject of disclosure.

Later on January 6, Mr. Seguin faxed a letter and resume to Brian Ross, co-ordinator of the ministry’s correctional services recruitment unit. The letter begins with the following statement: “I am a correctional officer at the Central North Correctional Centre …” On the resume, under the heading “employment history”, the first entry is: “2001-Present Central North Correctional Centre.” Mr. Seguin testified these documents were produced on his computer from files previously created when he had applied for work with the provincial police and federal government. According to the grievor, he modified an earlier letter by inserting Mr. Ross’s name and adding the correctional facilities where he wished to work. Mr. Seguin testified that, in the emotional turmoil of the moment, he “overlooked” the reference to current employment at CNCC. In cross-examination, he conceded his chances of being hired by the ministry were greater if his termination at CNCC was not disclosed.

On January 9, Mr. Seguin spoke to Mr. Ross on the telephone. According to Mr. Ross, when the grievor was asked why he wanted to leave CNCC, he cited poor working conditions and the possibility of a labour dispute. During cross-examination, Mr. Ross conceded his phone call with the grievor followed many calls from other correctional officers, wanting to return to the ministry from CNCC, who gave as their reasons working conditions and the prospect of a labour dispute. Asked whether it was possible the grievor did not mention working conditions, Mr. Ross answered it was possible only if his memory was failing.

Mr. Seguin gave a very different account of this phone call. He denied both being asked why he was leaving CNCC and saying anything about working conditions. According to Mr. Seguin, the conversation began with Mr. Ross noting the grievor was in Penetang and asking what was happening there. He replied “they are thinking of going on strike.” He testified he did not volunteer any information about being fired because he was embarrassed by what he had done. He also testified about another phone conversation with Mr. Ross that occurred about a year before the one in question. According to Mr. Seguin, on the earlier occasion, he did mention working conditions as a reason for wanting to return to the ministry.

During the January 9 phone call, Messrs Ross and Seguin discussed the ministry obtaining references from two people who had worked as managers at the Guelph Correctional Centre. Mr. Seguin testified he also suggested a reference be obtained from Jeff Mayer, the human resource manager at CNCC, knowing Mr. Mayer would reveal he was no longer working there. In cross-examination, Mr. Ross admitted he could not deny the grievor mentioned Mr. Mayer.

Mr. Ross did not contact anyone at CNCC but he did speak to people who had worked with Mr. Seguin in Guelph. The grievor was offered an unclassified position at Maplehurst Correctional Complex on January 16 and began working there on January 19 for a contractual term ending September 30, 2004. Unlike most unclassified correctional officers, he was appointed as a CO2 and paid at level 2. This treatment reflected the grievor’s long experience as a correctional officer.

On January 30, Mr. Ross learned from his assistant deputy minister, Gary Commeford, that the grievor had been dismissed by MTC for sexually inappropriate conduct. Mr. Ross and a deputy superintendent from Maplehurst, Rick Wilson, met with the grievor and the local union president on February 10. According to Mr. Wilson, the grievor was “forthcoming” at the meeting about what had transpired at CNCC. Mr. Seguin said he had been counseled by someone there not to disclose this information to the ministry when applying for a job. The grievor also apologized to Mr. Ross if he had been misled. The meeting ended with Mr. Seguin being told he was suspended with pay, for up to five days, pending investigation. He was also told he could be dismissed. Having heard nothing by the morning of Feb. 16, he reported for work. The grievor thought he was “in the clear”, despite not having been notified of the employer’s final decision. Upon learning Mr. Seguin had reported for duty, Mr. Wilson immediately told him to go home. During a telephone conversation later that day, Mr. Wilson read the termination letter to the grievor.

II

What really happened during the telephone conversation on January 9? I accept as true the Mr. Seguin’s uncontradicted testimony that he named Mr. Mayer as a person who could provide a reference.

Did the grievor say working conditions and the prospect of a labour dispute were his reasons for wanting to leave CNCC, something that would have implied he was still employed there? On this score, he was directly contradicted by Mr. Ross. Is it more likely that Mr. Ross’s memory is faulty or that the grievor lied by implication during the phone call on January 9 and then lied again under oath about what he had said on the phone? In answering this question, I note Mr. Ross’s inability to recall whether the grievor, during the same phone conversation, suggested a reference be obtained from Mr. Mayer. I also note Mr. Ross had a previous conversation with the grievor, in which the latter did mention working conditions as a reason for wanting to leave CNCC, as well as numerous similar conversations with other correctional officers. In these circumstances, it would be difficult for Mr. Ross to recall accurately who said what and when it was said. Moreover, it seems unlikely the grievor would have implied he still worked at CNCC, while at the same time suggesting Mr. Ross contact Jeff Mayer at MTC. If contacted, Mr. Mayer would have disclosed the start and end dates of the grievor’s employment with MTC, thereby revealing he no longer worked there. Mr. Seguin knew this is what Mr. Mayer would do. As noted by union counsel, there would have been little point in the grievor lying to Mr. Ross by implication and then suggesting he contact someone who would have uncovered the lie. The foregoing analysis leads me to prefer the grievor’s testimony that he did not say he wanted to leave CNCC because of working conditions and the possibility of a labour dispute.

III

A number of general conclusions emerge from the evidence and factual findings recounted above. Mr. Seguin omitted to tell the ministry that he had been fired for sexually inappropriate conduct. I have no doubt this omission was deliberate.

Mr. Seguin engaged in active misrepresentation as well as passive non-closure. In the documents faxed to Mr. Ross on the afternoon of January 6, the grievor misrepresented that he was currently employed by MTC, whereas he had been terminated earlier that day. However, I have concluded no misrepresentation was made during the telephone call on January 9.

Was the misrepresentation made by fax on January 6, a few hours after the grievor had been fired, deliberate or inadvertent? In answering this question, I begin by examining the nature of the statements about which the employer complains: (1) the first sentence of the letter saying: “I am a correctional officer at the Central North Correctional Centre”; and (2) the entry on the resume saying: “2001-Present Central North Correctional Centre.” The resume entry is more about the duration of the grievor’s employment at CNCC than about his current employment status there. In contrast, the letter clearly indicates the grievor was currently employed at CNCC. The representation made by the grievor on the afternoon of January 6 about how long he had worked at CNCC is erroneous, but the extent of the error is only a few hours. The representation about his current employment status was absolutely wrong when the fax was sent, even though it would have been correct a few hours earlier. Mr. Seguin claims he overlooked this reference to current employment when preparing these documents from files on his computer.

Noting the grievor conceded being “upset and desperate” on January 6, counsel for the employer urges me to conclude this emotional turmoil resulted in a deliberate falsehood about employment status. In my view, emotional turmoil is a neutral factor. Just as upset and despair might lead one person to lie, if inclined to dishonesty and thinking clearly enough to plot such a strategy, the same emotions might cause an honest person to make a mistake by impairing mental processes.

In deciding whether the grievor on January 6 deliberately misrepresented the status of his employment with MTC, I take into account his entire course of conduct when seeking to be rehired by the ministry. In particular, on January 9 Mr. Seguin suggested Mr. Ross contact Mr. Mayer, even though the grievor knew such contact would reveal his employment with MTC had ended. In my view, this suggestion provides ample reason to doubt the grievor on January 6 made a deliberate misrepresentation about his current employment status with MTC.

Weighing all of the factors reviewed above, I conclude on the balance of probabilities, that the grievor made an inadvertent mistake as he claims.

IV

Most of the cases cited by counsel involve an active misrepresentation by a job applicant who was hired after this false statement was made and dismissed when the falsification was discovered. I will review these cases before turning to the only one cited that deals with a candidate for employment who was fired for passive non-disclosure at the time of hiring.

The cases about falsifying employment applications fall into two categories, reflecting very different legal approaches. One is illustrated by the decisions reviewed and applied in Douglas Aircraft Co. and United Automobile Workers (1973), 1973 CanLII 2098 (ON LA), 2 L.A.C. (2d) 147 (Simmons). Based on several awards, most dealing with misrepresentations about the health of a candidate for employment, Professor Simmons wrote:

From the foregoing arbitration decisions, including the American ones, there appears to be at least four possible results that may arise whenever an applicant falsifies his employment application form to which a statement is attached signifying that the information which he is giving is the truth. One, is the information which is withheld or wrongly given, is innocently withheld or given. Then, if that information is not material to the job performance, the employee will in all likelihood not be dismissed from employment when this error is subsequently discovered. Secondly, if the information is material to the performance of the job then, notwithstanding the fact that it has been innocently withheld or given, the employee may indeed be dismissed. Thirdly, in instances where the information is deliberately withheld or knowingly falsely given in an attempt to gain employment then, when subsequently discovered, the false misrepresentation will be sufficient grounds to terminate the employment relationship. The fourth and final possible result may involve a waiver of the right in the employer to terminate the employment relationship if his conduct clearly indicates that he condones that which the applicant has done. (pages 153 and 154)

The essence of the Douglas Aircraft treatment of falsification is that its discovery allows management to fire an employee, if he or she would never have been hired but for the falsehood.

This arbitral approach is consistent with the one applied by the judiciary in three cases cited by employer counsel: Allcroft v. Adams (1907), 28 S.C.R. 365; Cornell v. Rogers Cablesystems Inc. (1987), 17 C.C.E.L. 232 (Ont. Dist. Ct.); and Schafer v. Pan Matrix Informatics Ltd, 1987 CanLII 3500 (AB QB), [1987] A.J. No. 528 (Alta. Q.B.).

A very different tack was taken in Gould Manufacturing of Canada Ltd. and United Steelworkers of America (1972), 1973 CanLII 846 (ON CA), 1 L.A.C. (2d) 314 (Shime) upheld 1973 CanLII 805 (ON HCJDC), [1973] 2 O.R. 279 (Div. Ct.), where the grievor had lied about his criminal record. Having reviewed a number of American cases dealing with this sort of falsification, Arbitrator Shime wrote:

A review of those cases indicates that not every falsification of an employment application constitutes just cause for discharge. The relevant factors are as follows:

(1) The nature and character of the falsification and the matter or offence concealed.

(2) The number of matters concealed.

(3) The date when the falsified or concealed matter occurred in relation to the signing of the employment application.

(4) Any warnings contained on the employment application.

(5) Whether the revelation of the matter or offence concealed would have resulted in the employer not hiring the individual.

(6) The time that has elapsed between the signing of the false application form and the date of discovery.

(7) Whether the employer acted promptly upon learning of the falsification of the employment record.

(8) The seniority of the grievor.

(9) Whether the grievor was in fact discharged for the falsification.

(10) The materiality of that falsification or matter or offence concealed to the work performed.

(11) Special considerations such as a sensitive employment position.

The difference between these two approaches was carefully articulated in Ralston Purina of Canada Inc. and Energy and Chemical Workers Union (1982), 1982 CanLII 5048 (ON LA), 7 L.A.C. (3d) 45 (Pritchard):

In an earlier case I had occasion to review the arbitral decisions in this area: see Re Spiers and Ministry of Natural Resources (GSB 181/78). …

Fundamentally, the Douglas Aircraft approach supports the proposition that once the employer discovers the falsification, the employer should be free to act as he would have if he had been aware of the true facts at the time the grievor was hired. Thus, if full disclosure would have caused the employer not to hire the grievor at the outset, the employer should be free to discharge the grievor once the true facts are discovered. …

The Gould approach is premised on the belief that the inquiry must be guided by considerations other than simply how the employer would have acted and that these considerations should include matters which have occurred between the date of employment and the discovery of the falsification. Furthermore, Gould necessarily suggests that while the employer is normally free to determine who he wishes to hire, once that person has been hired (even following some falsification), the decision as to whether or not the person can be dismissed must canvass a broader range of interests than those which inform the initial hiring decision. In particular, the interests of the employee are added to the balance and must be weighed along with the employer's interest in making informed employment decisions. …

The justification for the Gould approach is both contractual and statutory. Article 21.03 of the collective agreement and s. 44 of the Labour Relations Act, R.S.O. 1980, c. 228, require the arbitrator to consider not only whether or not there was just cause for discipline, but also whether the penalty imposed -- discharge in this case -- is just and reasonable in the circumstances. That is, once an employee comes under the umbrella of the collective agreement and the statute as the grievor did when he was hired, he may only be discharged following a consideration of the discharge decision in light of the notions of just cause and just and reasonable penalties. The Gould approach argues, in effect, that in elaborating and determining these notions, the arbitrator can and should not restrict his attention to a single fact; how would the employer have acted if he had known the true facts at the outset? Rather, the arbitrator must consider all relevant matters including the interests of the employee. (pages 53 and 54)

This analysis led Arbitrator Pritchard to choose Gould Manufacturing over Douglas Aircraft.

I have decided to apply the analytical framework set out in Gould Manufacturing. For the reasons found in Ralston Purina, I am persuaded this approach is the correct one. In addition, it has been applied by the Grievance Settlement Board in two previous cases: (1) Spiers and Ministry of Natural Resources, cited in the above passage from Ralston Purina; and (2) McKenna and Ministry of Transportation and Communications (1980), 1980 CanLII 4108 (ON LA), 28 L.A.C. (2d) 410 (Swan).

Does the Gould Manufacturing approach treat an innocent misrepresentation differently than a deliberate one? In my view, an affirmative answer is found in the first factor listed by Arbitrator Shime which combines two elements: “the nature and character of the falsification and the matter or offence concealed.” I take the “nature and character” of the falsification to include whether it was done consciously or inadvertently. This distinction was explicitly addressed at the Grievance Settlement Board by then Vice-Chair Swan in McKenna. He wrote:

Does it matter whether the misrepresentation was intentional or innocent? … [T]he employee's state of mind at the time of the misrepresentation is another factor to be considered in the assessment of the wrongfulness of the conduct. (page 418)

All other things being equal, someone fired for making an innocent misrepresentation has a better chance of being reinstated than someone dismissed for deliberate misrepresentation.

V

The only case of non-disclosure cited by counsel is British Columbia Rehabilitation Society and Health Sciences Assoc. of British Columbia (1993), 1993 CanLII 16653 (BC LA), 36 L.A.C. (4th) 415 (Hickling). In that case, a social worker applying for a job with the society presented a resume listing a number of previous employers, but making no mention of one that had terminated him as a probationary employee. He was hired by the society and then dismissed when his prior termination came to light.

Professor Hickling began by noting the common law does not, as a general rule, visit a duty to disclose on those entering into contracts of employment:

If an employee told a lie, made a positive representation that was untrue, that constitutes a basis for disciplinary action. The employer could terminate the contract. But there is no general duty of disclosure. That proposition may be old, but it still finds expression in modern Canadian texts and cases. …

Bell v. Lever Brothers Ltd. involved a contract under which the company bought out the remainder of the contracts of the chairman and vice-chairman of the board of a subsidiary company. Whilst employed by the company they had entered into secret speculations in cocoa for their own personal profit. This placed them in a position of conflict between their interests and those of their employer. Taking this secret advantage out of their employment was found to be a grave breach of their duty both to Lever Brothers and the subsidiary company. Had the facts been discovered during the term of their service, Lever Brothers could and would have dismissed them. Having spent $50,000 to cancel the two service contracts, Lever Brothers discovered their misconduct. It sued to recover the money paid as well as the amount of the profit. The claim failed. …

The case certainly supports the commonly expressed proposition that mere silence is not misrepresentation. However, as I pointed out at the hearing, there are exceptions where the law requires disclosure. Two of these exceptions may be relevant. One is the case involving a special fiduciary relationship. Another is contracts uberrimae fidei (of the utmost good faith). This particular exception was raised in Bell v. Lever Brothers Ltd. itself. In a contract uberrimae fidei all material facts must be disclosed. Contracts of insurance and of partnership and family settlements fall within this category. … Lord Atkins refused, however, to extend the category of contracts uberrimae fidei to include ordinary contracts of service. There is nothing in the relation of master and servant, he said, to place agreements in that category. An employee is under no overriding obligation to disclose his past faults. Nor is a person obliged to do so in negotiating a contract of service: idem, at pp. 228-9. …

Lord Atkin did not attempt to lay down an exhaustive list of contracts uberrimae fidei. Further, whilst ordinary contracts of employment do not fall within that category, there may be contracts of employment of a special character that do. The exceptions are likely to be rare, perhaps, but an example can be found in Courtright v. Canadian Pacific Ltd., supra. That case involved a lawyer who was suspected of "influence peddling" and knew (although he constantly reiterated his innocence) that he might be charged with an offence under the Criminal Code. Following negotiations in which no mention was made of the possibility of being charged, he was offered a position with the defendant company. …

The Ontario Court of Appeal found it unnecessary to formulate any broad contractual duty. It was sufficient that in the particular circumstances the "non-disclosure constituted a failure to meet the standards of good faith required in negotiations for the contemplated professional relationship" … (pages 431 to 434)

Turning to the legal regime of collective bargaining, the arbitrator commented on the dearth of cases dealing with non-disclosure by job applicants:

If one scours the indices to the Labour Arbitration Cases or the now defunct Western Labour Arbitration Cases, one can certainly find entries that refer to a "failure to disclosure" or "non-disclose" or the like. When one examines those cases it seems that they all involve situations in which an applicant had warranted the completeness of the employment history. In that context non-disclosure is clearly a breach of that specific undertaking. The cases are not, however, authority for the proposition that in the absence of such an undertaking, a failure to disclose is an employment offence. …

[N]either Palmer and Palmer nor Brown and Beatty identify a single case in which arbitrators have held there to be a duty to speak up in the absence of a contractual undertaking as to completeness. Nor, although reference is made to misrepresentation, do they identify any case in which it has been held that a mere failure to disclose, in the absence of a contractual undertaking, amounts to a misrepresentation. (pages 437 and 438)

Based upon this review of the law, Professor Hickling decided the grievor was not obliged to disclose the fact he had been terminated by a previous employer:

No authority directly in point having been cited or found, I shall treat the matter as one of first impression in the arbitral context. My conclusion is that, generally, in merely submitting a resume an applicant for employment does not warrant the completeness of its contents. In the absence of a duty, contractual or otherwise, to speak up, the mere omission to include a reference to a particular job, even in the same area, is not an "employment offence". It is not dishonest to fail to disclose an earlier unfortunate experience in the absence of such a duty. I see nothing in the nature of a collective agreement to warrant a different conclusion than would have been obtained at common law. I do not think that the obligation upon an applicant for employment is any higher in the one context than in the other. The employer can quite readily protect itself by asking appropriate questions at the interview or by insisting upon a complete statement of employment history as the basis for engagement. (pages 438 and 439)

VI

Applying the legal principles reviewed above to the facts at hand, I conclude Mr. Seguin was obligated not to make false statements about his termination at CNCC, but he was not under any obligation to disclose this matter if not asked about it. His misconduct lies not in any failure to disclose, but rather in the misrepresentation, made to the ministry on January 6, that he was currently a correctional officer at CNCC.

In determining whether this misconduct provided just cause for dismissal, I am guided by the factors listed in Gould Manufacturing. Some of these factors favour the employer: the grievor’s termination by MTC—i.e. the matter concealed by the misrepresentation—occurred the very same day as the misrepresentation itself; only a few weeks passed between the misrepresentation and the ministry’s discovery of it; and the employer terminated the grievor less than three weeks after this discovery. I accept as accurate Mr. Ross’s testimony that there was a “very strong” chance the grievor would not have been hired if his full history at CNCC had been known to the ministry.

Two factors clearly favour Mr. Seguin: his misrepresentation was inadvertent rather than deliberate; and he did not complete an employment application, let alone one containing a warning about falsification.

The grievor’s misrepresentation concealed his termination for two incidents of sexually inappropriate conduct at CNCC. Misconduct in the form of sexual harassment is especially material to employment as a correctional officer because of the history of male chauvinism in correctional facilities. Nonetheless, some incidents of harassment are more serious than others, and those in question were not at the top of the scale. The first was saying to a nurse: “You could do me, but I am married.” The opening part of this comment is offensive and inappropriate because it refers to sex between the grievor and the nurse. However, the second part of the comment indicates the grievor viewed his marriage as a barrier to any such sex occurring. Taken as a whole, the comment was a crude and misguided attempt at humour, not a real sexual proposition. The other incident was patting the buttock of a kitchen worker whom the grievor mistook for someone else. Sexual touching is more offensive when it is not welcomed by the recipient than when it is. The touching in this case was unwelcome to the woman who received it, but there is no evidence as to how it would have been viewed by the intended recipient. Even if welcomed by the recipient, sexual touching that occurs in the public areas of a workplace is completely unacceptable. One final comment about the grievor’s misconduct at CNCC: he immediately apologized after the first incident and attempted to do so after the second.

The application of seniority or length of service in this case is not clear-cut. As pointed out by employer counsel, Mr. Seguin was terminated by the ministry only a couple of weeks after being rehired. Union counsel noted the grievor previously spent seven years working for the ministry in Guelph, before his employment was terminated as a result of the facility there closing. According to the collective agreement then in force, he was deemed to have resigned and was entitled to severance pay. Noting the ministry gave significant weight to the grievor’s prior service in deciding to rehire him, without so much as an interview, counsel for the union urged me to give this service similar weight when determining whether there was just cause for dismissal. In reply, employer counsel contended the grievor should get no credit for his work at Guelph, especially as he had received severance pay when his employment there ended.

I am persuaded by the union’s argument that Mr. Seguin’s claim for reinstated is buttressed by his seven years as a ministry employee in Guelph. Those years of service represent a significant investment by him in a career with the ministry as a correctional officer. In addition, the absence of any discipline during those years provides good reason to predict the grievor can be rehabilitated by some penalty short of discharge.

Bearing in mind all of the foregoing factors, I conclude those supporting discharge are substantial, but they are outweighed by those supporting reinstatement. The employer is directed to reinstate Mr. Seguin, as an unclassified employee, for a term equal in length to the period from his discharge to the end of his then existing unclassified contract—i.e. from February 16 to September 30, 2004. I have decided not to award any compensation to the grievor. In making this decision, I have not overlooked the possibility his initial contract would have been renewed if he had not been fired without just cause. On one hand, this possibility supports a claim for some back pay. On the other hand, Mr. Sequin’s misrepresentation about his sexually inappropriate conduct also contributed to his loss of pay. In my view, reinstatement without compensation strikes a fair balance between the competing interests in this case.

Dated at Toronto this 13th day of January 2005.