Ontario (Ministry of Community Safety and Correctional Services) and O.P.S.E.U. (Adam) (Re), 2005 CanLII 94122

Re The Crown in right of Ontario (Ministry of Community Safety and Correctional Services) and Ontario Public Service Employees Union (Adam)

[Indexed as: Ontario (Ministry of Community Safety and Correctional Services) and O.P.S.E.U. (Adam) (Re)]

File Nos. 2003-0892; 2003-1202; 2003-1203 Ontario Crown Employees Grievance Settlement Board B. Herlich

Heard: November 12, 2003, February 25, May 4, June 2, 3, 10 and 11, July 7, October 5, November 5, and December 6, 2004 Decision rendered: February 24, 2005

EMPLOYEE GRIEVANCE alleging unjust discharge. Reinstatement; one-month suspension substituted for discharge. Grievance allowed in part.

E. Holmes, for the union. L. Compagnone, for the employer.

AWARD

On March 27, 2003 an incident took place which, ultimately, resulted in the discharge of the grievor, Mark Adam, on June 10, 2003. Three grievances were filed on behalf of the grievor. Efforts at mediation of the resulting grievances were unsuccessful and the for­mal arbitration hearing in this matter commenced on November 12, 2003 and continued for some 11 hearing dates, the last of which was in December 2004. Over the course of those hearing days we heard the evidence of six witnesses (as well as that of a seventh whose evi­dence was stipulated by the parties) and received and marked 36 documents as exhibits. In addition, on one of the earlier hearing days, we took a view of the Windsor Jail and, in particular, the sally port area where the relevant events occurred.

I note, as well, that although three grievances were initially filed on behalf of the grievor, the union indicated that it was proceeding only with the discharge grievance. The other two grievances are, therefore, effec­tively withdrawn.

The incident which resulted in the discharge involved the grievor, in circumstances to be more fully described shortly, slapping a fellow Corrections Officer ("CO"), Jill Cassibo, in the sally port of the Windsor Jail. Although I have called Ms. Cassibo a "fellow CO", it should be noted that at the time of the events in question the grievor, while retaining his home position of CO, was an Acting Operational Manager (and indeed, but for a hiatus of 3 months asso­ciated with the union strike in the spring of 2002, had been in that acting 0M16 position for a period approaching four years). As such, his duties would have included supervisory responsibilities in rela­tion to Ms. Cassibo and other COs.

Murray Laird is the Superintendent of the Elgin Middlesex Detention Centre. He had no prior dealings with the grievor and, apart from the "allegation meeting" held on May 30, 2003, had never previously met the grievor. After an investigation (in which Mr. Laird played no part) had been completed and a report (undated) had been prepared by the investigating officer, Andy Farkas, an inspec­tor with the Correctional Investigation & Security Unit, the matter was assigned to Mr. Laird to review and to determine the employer's response. After reviewing various materials and meeting with him at the allegation meeting referred to earlier, Mr. Laird decided to ter­minate the grievor's employment. The grounds for the discharge were enumerated in the termination letter directed to the grievor as follows:

• On March 27, 2003, you intentionally struck a female correctional officer, who was under your direct supervision.
• You violated Ministry policies including, staff conduct as directed by the ADI, the WDHP policy, and the Windsor Jail Standing Orders.
• You violated the Statement of Ethical Principles.
• You contravened Ministry policy when, prior to leaving the institution, you failed to submit an Occurrence Report or otherwise report the incident to the Superintendent.

The employer asserts that there was just cause for the dismissal which was imposed solely on the basis of the events of March 2003. The union concedes that the grievor's conduct was worthy of disci­pline but asserts that discharge is simply too harsh a penalty in the circumstances of the case. The employer, in turn, submits that in the event I am persuaded that discharge was too severe a penalty, then the grievor still ought not to be reinstated but should be awarded damages in lieu. In the final alternative, the employer urges that any reinstatement be subject to terms including assignment to a location other than the Windsor Jail.

There is undoubtedly some irony to be had in the fact that, despite the amount of time, the number of witnesses and exhibits required to complete these proceedings, both counsel, in their final argument, asserted that the essential facts of the case were not in dispute. By and large that is true. The evidence we heard falls, broadly speaking, into four categories:

1. Evidence from the three eyewitnesses called to testify about the events which culminated in the grievor slapping Officer Cassibo;
2. The derivative evidence: i.e. not direct evidence about the altercation itself, but rather, evidence about what the partici­pants said or wrote or otherwise reported to others about the events in question;
3. Evidence of Dr. W.V. McDermott, a clinical psychologist with particular experience and expertise in treating and assessing clients involved in law enforcement; and.
4. Evidence as to the manner in which the employer arrived at its decision to terminate the grievor's employment.

I will review each of these areas in turn.

The events in the sally port

My findings in relation to the relevant events which took place in the sally port of the Windsor Jail on March 27, 2003 are based on the evidence of the three eyewitnesses who testified in these proceedings: the grievor, CO Cassibo and another CO, Janisse Denhartogh. (Although the grievor stands in a different position in these pro-ceedings, I may continue to refer to these three, collectively, as the "eyewitnesses".) As both counsel submitted, there is little in the way of dispute as to the course of these events. That is not to suggest that there are not numerous minor discrepancies or omissions in the com­pared evidence of the three eyewitnesses. Indeed, the close and exacting interrogation of witnesses in this matter is perhaps testa­ment to both the greatest virtues and most unfortunate shortcomings of the adjudicative process, one which can, at times, mine the depths of witnesses' accounts in an effort to expose truth and establish cred­ibility but can, in other cases, merely demonstrate the participants' impressive abilities to construct seemingly endless, if not always pertinent, mysteries all constructed on a foundation composed of the frailty of human memory. In any event, consistent with counsels' final argument, few, if any, of the essential facts of this case are in dispute.

The sally port area serves as a buffer, an added security layer between the inmate area of the jail and its main outside entrance. There are two doors within it: the external door which leads to the main entrance; the other, the internal door, which leads to the inmate area. Both doors open inwards from their respective locations into the sally port. For obvious security reasons, only one of these doors can be unlocked at any given time. The doors each lock when closed and can only be unlocked by the CO staffing the Main Entry Control (MEC) module. That module, which is adjacent to the sally port, includes a window from which the CO assigned to the MEC module can view the inside of the sally port and control the unlocking of either of the two doors. There is also a buzzer inside the sally port by which COs wishing to exit or enter the Jail can signal the MEC CO to unlock the required door. Opposite the MEC window inside the sally port is a grill through which one can view another area within the Jail. Thus, if one were standing inside the sally port fac­ing the external door, the internal door would be behind, the MEC window to the right and the grill to the left. The inside of the sally port is rectangular, approximately six by eight feet.

The sally port is, of course, deliberately designed to create a bottleneck to further control movement into and out of the jail. Because of this structural bottleneck, COs will frequently be required to wait for brief periods within (or even just outside) the sally port until the traffic associated with the opposite unlocked door has subsided, that door has been locked and the door for which they are waiting can then be unlocked. And while, indeed, perhaps because, the day to day job requirements of persons working within correctional institutions such as the Windsor Jail can hardly be expected to be replete with mirth, it is not difficult to imagine how exchanges and delays around entering and exiting the sally port might provide some welcome moments of levity, forced and artifi­cial though they may be.

In one respect, the events in question are a pathological example of such carryings on. The principal partici­pants (though, to a lesser extent, CO Denhartogh) all agreed that the mood which characterized the events in question, almost to their unfortunate culmination, was one of jocular free-spirited horseplay.

At approximately 6:45 AM on March 27, 2003, the overnight shift on which the grievor and COs Cassibo and Denhartogh had been working was ending. The grievor, on his way out of the jail, made his way inside the sally port. The doors to the sally port remain unlocked until they are fully closed. It is possible to close the doors incompletely so that the latch remains ajar. Indeed, it appears that there is a common practice among COs to do so, particularly in circumstances, like at the end of the shift, when they are awaiting the arrival of other departing COs. Although there is no direct evidence on the point, I am satisfied that is what the grievor must have done upon his entry into the sally port. For when COs Cassibo and Denhartogh approached the sally port moments after the grievor had entered it, the internal door remained unlocked, "off the latch". At about the time or just before (her evidence is inconsistent on the pre­cise timing — a matter ultimately of little relevance for our purposes) CO Denhartogh reached to push the door open to facilitate entry into the sally port, the grievor responded by shutting the door, locking out the two COs.

While the grievor had no particular recollection of this action, neither did he deny it and I am satisfied, based on the evidence of the two COs, that this is what happened. More importantly, I am satis­fied that all involved responded to this in the spirit in which it was intended i.e. as a prank, a relatively harmless instance of horseplay which set the tone for, at least some of, the events which followed.

The CO on duty at the MEC module then opted to unlock the inner door (rather than the outer door to facilitate the grievor's exit). The two COs entered the sally port. However, whether in an effort to continue the horseplay and/or to facilitate the entry of other COs expected to enter the sally port at the end of the shift, CO Cassibo failed to fully close the inner door behind her.

There then followed some spirited banter between the grievor and CO Cassibo about closing the inner door so that the grievor could depart. The nature of that exchange is consistent with the evidence the two COs offered about their relationship with the grievor prior to these events. It was clear that, prior to the incident currently under review, they each had a good relationship with the grievor whom they respected. They both readily acknowledged that his ultimate physical response to CO Cassibo was entirely uncharacteristic of the grievor.

In any event, returning to the events as they unfolded, it is clear that CO Cassibo made remarks to the grievor which, in a different context, might have suggested a lack of appropriate deference for his supervisory position. I am not, and no one in these proceedings was, critical of CO Cassibo's conduct in that regard. I make the observa­tion only to reflect that there must have been a sufficient degree of comfort and familiarity in the relationship between the two to permit that kind of spirited exchange — one which they both described as little more than innocent verbal baiting.

As CO Cassibo was resisting closing the inner door, the grievor took it upon himself to reach over her and closed it on his own. At this point the outer door was unlocked by the MEC CO and the grievor proceeded to open it. The grievor was in front of the door (its handle to his right on the right hand side of the door); CO Cassibo was behind the grievor and slightly to his left; CO Denhartogh was perched against the metal drawer adjacent to the MEC window facing the grill. The grievor was holding a large lunchbox/cooler by its strap handle in his left hand. He reached for, grasped and pulled the door handle with his right hand and then, to continue the momentum of the opening door, moved his hand from the handle to the outside of the door, the thumb on the inside of the door and his hand and fin­gers cupped around the side and outside of the door, to continue swinging it open.

As he was doing this, CO Cassibo stepped forward and kicked the door with sufficient force that it slammed shut. The door is a heavy metal structure several inches thick. There was no dispute that serious damage could result to a hand caught between the door and the door jamb. (Indeed, there was undisputed evidence before me that precisely such an incident resulted in a fractured finger — although, perhaps ironically, this occurred some months after the events here being reviewed.) Fortunately, the grievor was able to pull his hand out from between the door and the door jamb before the door closed.

Good fortune, however, ceased to smile at that point. The grievor's response was to turn to face CO Cassibo and slap her roundly, squarely and forcefully with his open right hand to the left side of her face.

Much has been made of the timing of these events and they have been subject to an intricate and exacting scrutiny. I am satisfied that the length of time between the door having been kicked shut and the slap to CO Cassibo's face was, though impossible to quantify with absolute precision, minimal. Although the two events (the closing of the door and the slap) were obviously not simultaneous and it is pos­sible to insert an interval of time between them, I am satisfied that the grievor's unfortunate, ill advised and entirely inappropriate response was virtually instantaneous. In coming to this conclusion I have considered the evidence of all three of the eyewitnesses: the grievor who indicated that he pulled his hand out of the door and immediately turned and slapped CO Cassibo; CO Denhartogh's account (in the investigation interview statement) that "as soon as the door shut nothing was said but Mark just came up with his right hand and smacked... Jill's face"; and CO Cassibo's description (also in her interview statement) that "when the front door closed Mark immediately turned around and smacked me across the face with his right hand".

I will return to the question of the relative timing of these events later in my decision, as it pertains not only to the question of what actually transpired but also to the question of how candid the grievor was in his various descriptions of the events.

It is somewhat difficult, though fortunately not entirely necessary for our present purposes, to paint a precise picture of what occurred in the few seconds after the slap and during the brief time the grievor and the two COs remained in the sally port. Essentially, it would appear that the grievor expressed his concern and dismay about what he viewed as his narrow escape from injury. CO Cassibo protested that this did not constitute license or justification for the slap. In what might be described as a cruel extension of the bottleneck created by the sally port doors and their functioning, there then followed some limited negotiations about who was to go where first. The grievor sought to yield to permit CO Cassibo to exit the sally port. She, however, had no desire to cross the grievor's path to do so, preferring instead to retreat back through the inner door into the jail, all the while exhorting the grievor to leave. Ultimately, it was the outside sally port door which was opened first and the grievor left. Prior to his departure, however, he addressed a succinct apology to CO Cassibo.

None of the three eyewitnesses completed occurrence reports, as each of them conceded they ought to have done, prior to leaving the jail that morning. The grievor completed his occurrence report later that day on his return to work at approximately 10 PM; CO Denhartogh completed her occurrence report some four hours later at approximately 2 AM on March 28, 2003; and CO Cassibo filed her occurrence report at approximately 9 AM on that same day. Neither of the two COs was disciplined for their failure to submit a timely occurrence report. It will be recalled that the grievor's failure in that regard was one of the stated grounds for his termination.

I pause to reflect on the grievor's intent in slapping CO Cassibo. The level of attention which was devoted to this issue not only in questioning by counsel, but also in Mr. Laird's deliberations and the manner in which Inspector Farkas conducted his investigation sug­gested that the facts of this case might make useful fodder for a legal textbook or a learned treatise on issues of intentionality and perhaps even its criminal law cousin, mens rea. I am satisfied, however, that the issue of intent is neither so mysterious nor complicated as to impair arriving at an understanding of how the events unfolded. (The question of how the grievor chose to describe his actions is a different one and will be dealt with separately.)

Levels of intention can easily be described as points along a continuum some of whose main markers (in increasing levels of intention) might be thought to be: complete absence of intent/ accident, recklessness, simple intent and premeditation. The grievor's level of intent is not to be found at either extreme of the continuum. His act was neither premeditated nor accidental. Neither do I believe, nor did anyone suggest, that his actions were merely reckless (a characterization which might, however, apply to CO Cassibo's kicking of the door). Of the four identified "markers", the grievor's intent would clearly be found closest to the simple intent marker. However, I am also satisfied that on that continuum the grievor's level of intent would be found closer to the end of the territory of recklessness than to the beginning of that of premeditation.

In understanding the level of the grievor's formed intention, I have found one of his descriptions of the events to be particularly instructive. He suggested that he didn't even know what had happened until after it happened. And while I do not accept this description (whether or not it was "intended" as such) as the literal truth, I do find value in its explicative power. The speed with which these events unfolded was such that there was simply insufficient time for the grievor to have fully formed the intention and to have been fully self-conscious of its formation as the events unfolded.

It is here, perhaps, that one of the conundrums of the grievor's evidence ought to be briefly addressed. The grievor generally dis­played an inability to recall his state of mind or intention in that moment between the external door having been shut and his slapping CO Cassibo. I generally accept that inability to recall as genuine. It is to be distinguished, however, from the occasions upon which the grievor was asked to comment on his conduct, not by recalling what transpired, but by analyzing in a somewhat more detached and objective fashion what conclusions might be drawn about his intent from the events which transpired. Ignorance or lack of recollection in the former context should not be seen as inconsis­tent with the ability to form more definitive conclusions in the latter. Put more concretely, I see no necessary contradiction between the grievor denying a recollection of a specific formed intent to strike CO Cassibo, on the one hand, and his ultimate acknowledgment, based on an after the fact assessment of the events, that he must have intended to strike her. Similarly, neither do I see any necessary con­tradiction between his inability to recall feeling angry at the time with the subsequent acknowledgment that he must have been angry.

Returning to an assessment of the grievor's level of intent in strik­ing CO Cassibo, I am satisfied that given the pace with which events unfolded, they do not readily permit us to draw reliable conclusions about the soundness of the grievor's exhibited judgment. Rather than an indicator of poor judgment, I believe the grievor's conduct was more indicative of poor impulse control, the matter not having evolved to the level of forming and implementing a judgment prior to striking CO Cassibo.

None of this changes the events which transpired or the gravity of the impropriety the grievor committed. These issues will, however, be of some relevance in determining the appropriate penalty for the grievor's infraction.

The derivative evidence and the grievor's accounts

It was clear from Mr. Laird's evidence and from the submissions of the employer, that a significant factor in both the employer's determination to discharge the grievor and its position supporting that decision in these proceedings was the grievor's asserted lack of candour in recounting the events which transpired. There is some basis for that concern, though, as will become evident, I am not per­suaded that the grievor's asserted lack of candour was either as extensive or as important as the employer contends.

The difficulty with the grievor's accounts of events can be seen most significantly and directly in the words he used in his very first account of events, his occurrence report, which included the following:

... Officer Cassibo kicked the door closed. As a reaction, I immediately pulled my hand back, narrowly missing getting it caught in the door, and quickly turned towards officer Cassibo. As I turned my arms swung forward and my right hand incidentally came into contact with left side of officer Cassibo face... I had no malicious intent to strike Officer Cassibo nor was this done out of anger. I just reacted to what had happened. I would never inten­tionally strike anyone. Although this incident was a result of our horseplay and the contact made was unintentional I deeply regret that it happened...

[emphasis added]

The grievor's account is clearly inaccurate insofar as it suggests that the contact of the grievor's hand with CO Cassibo's face was either incidental or unintentional. It was neither. As will be seen shortly, subsequent to first acknowledging that the slap was neither incidental nor unintentional, and in an effort to explain the earlier descriptions, the grievor acknowledged that he had chosen his words poorly and that what he had meant to commu­nicate was his lack of premeditation, not his lack of intent or his suggestion that the physical contact was somehow accidental. I do not find that explanation to be convincing. Rather, I am persuaded that the grievor's original choice of words was a deliberate one (with likely a greater degree of intent than the slap itself) designed to min­imize the appearance of his culpability in the event. And that approach on the grievor's part continued into (but not beyond) the initial portion of the investigation phase.

The incident occurred on March 27, 2003. On April 9, 2003 Inspector Farkas, after having done the same with COs Cassibo and Denhartogh about a week earlier, conducted an interview of the grievor. Although the previous interviews of the two COs lasted less than two hours each, the interview of the grievor commenced just prior to 7:00 PM and did not conclude until after 1:00 AM the following morning. Part of the reason for the protracted nature of the interview was related to what was described as a computer glitch. Inspector Farkas was taking detailed notes of the interview. The first portion pro­ceeded until a break about a half an hour after its start. Inspector Farkas' notes of that portion of the interview were duly saved and recorded. The second portion of the interview resumed at about 8:15 PM and all of the participants believed the interview had been con­cluded and completed about two and one half hours later. Unfortunately, it appears that Inspector Farkas discovered at that point that his notes of that portion of the interview had not been saved and efforts to retrieve them ultimately proved fruitless. Thus, the interview resumed again at approximately 11:45 PM and contin­ued until its final conclusion sometime after 1:00 AM. In this the third and last segment of the interview Inspector Farkas attempted to redo and recreate the questions posed and answers provided during the second segment. Thus, Inspector Farkas' record of the interview consists of notes of the first and third segments but none of the second.

In any event, it is clear that there are some significant differences in portions of the grievor's account provided in the first and the final segments of the interview.

Portions of the grievor's account in the first segment of the inter­view clearly echo the contents of his occurrence report (which the grievor had reviewed prior to the interview). Inspector Farkas' notes (which the grievor signed and acknowledged as accurate in his testimony) indicate the grievor saying:

Officer Cassibo then kicked the door shut. I immediately pulled my hand back and in one motion I turned to face her and my arm swung across and I made incidental contact with the left side of her face...I had no intent whatso­ever to strike her...

Several hours later, in the third segment of the interview, the grievor began to paint something of a different picture:

I reacted by initially pulling my hand away from the door out of harm's way. I then in a reflexive action I turned to face the source of the threat, that being Cassibo and in doing so I struck her with my open right hand...I had no premeditation to strike her.

And when directly asked by Inspector Farkas what he had meant by the use of the word "incidental" in his occurrence report, the grievor replied:

I used the wrong language when I was stating that. What I meant to say was that I had no premeditated thought to strike her. It was a result of my reacting to the threat of the door being kicked on my hand and me trying to face the source of that threat.

[Inspector Farkas then asks:] Are you suggesting the contact your hand made with CO Cassibo's face was accidental in that it was a natural continua­tion of the movement of pulling your out of harm's way?

[The grievor responds:] No. That was a misinterpretation of my language. I reacted to the threat, which was Cassibo, who I still considered a threat and I turned to face her, her being the continued threat and that is when I struck her. Clearly it was not an accident. There was intent to hit her but no real premedita­tion in terms of having a lot of time to think about hitting her in response. It was a split second and there wasn't a lot of time for me to premeditate to cause harm but there was some anger and the anger manifested itself by me striking her.

Numerous theories might explain this evolution in the grievor's account of events. Among those offered (both explicitly and implicitly) by the parties were: the grievor simply (at least initially) prevari­cated in an effort to diminish the seriousness of his conduct; the grievor simply chose poor language which was later clarified; the grievor was persuaded, or perhaps coerced, by the skilful, or perhaps intimidating, interview techniques of Inspector Farkas. It is not necessary for me to resolve all of the relative and absolute applicability of these competing (and not always necessarily mutually exclusive) theories. Suffice it to say that, in large measure, I accept the theory most adverse to the grievor i.e. that his words were deliberately chosen in an effort to downplay the seriousness of his misconduct.

But I note first of all that this aspect of the grievor's account relates to his description of his mental state. There is no significant aspect of the events which the objective observer would have seen as markedly dif­ferent depending on the version advanced. Thus, whatever obfuscation may have been the goal, the grievor never misrepresented the actual events and, as the evidence also clearly discloses, acknowl­edged from the very outset that there would be consequences for him as a result of his conduct. He also tendered an apology at the earliest opportunity and made a number of efforts (both on the day of the inci­dent and over the following week), through the union president, to tender a more formal apology and to pursue a possible reconciliation, efforts which CO Cassibo rebuffed, as she was entitled to do.

But most important of all on this point, I am satisfied that what­ever distortion coloured the grievor's prior version of events (and I am also satisfied that deception likely included some degree of self-deception), from no later than the end of the investigation interview in the early hours of April 10, 2003, the grievor proffered a true and accurate portrayal of the events in question. While it would clearly have been preferable for the grievor's candour to have emerged unimpeded at some earlier point in the two weeks between the inci­dent and the investigation interview, the fact remains that the grievor took an early opportunity to correct his less than entirely forthright account of events and the employer was thus in possession of the grievor's more accurate and truthful account for some two months prior to its decision to terminate his employment.

In arriving at this conclusion, I have not lost sight of the fact that the employer asserted that there was a perhaps more significant and enduring aspect to the grievor's lack of candour. The employer pointed not only to the language used by the grievor as just discussed but also to what it asserts was a "pause" by the grievor in the moment(s) between the door having been kicked and the slap. As I have already indicated, I have found that the length of time between those two events was minimal. However, because this submission occupied a place of some prominence in both Mr. Laird's evidence about the basis for his decision and the employer's final submissions in the case, I will consider it a little more fully.

There is nothing in any of the three occurrence reports about any such "pause". It first emerged in CO Denhartogh's interview state-ment. In each of the interviews Inspector Farkas permitted the subject to provide him a full oral narrative report of the events prior to posing more specific questions. It was during the latter phase that the issue of a "pause" surfaced. In the spots where one might other­wise have expected CO Denhartogh to report the pause she had previously indicated:

[in her occurrence report:] Once the door shut, I seen Acting Operational Manager Adam turn to his left and strike Officer Cassibo...

[in the narrative portion of her interview statement:] As soon as the door shut nothing was said but Mark just came up with his right hand and smacked...Jill's face...

Later in the interview, however, in response to a query from the inspector as to whether the grievor's slap might have been accidental, unintentional or incidental, CO Denhartogh offered the following:

None of the above. Absolutely not. The door had closed and there was a short pause where he dropped his chin down like he was mad and thinking then he turned and struck her really hard.

Similarly, in her evidence in chief CO Denhartogh did not initi­ally describe any pause, but simply reported the shutting of the door, the grievor turning and the slap. But when asked how long an inter­val there was between the closed door and the slap, she indicated it "just happened momentarily" "he paused for one second". And when asked what she observed in the pause, she described her own thoughts and concluded "but my thoughts didn't have time to be spo­ken cause he turned and hit her so quick".

This is the evidentiary foundation for the "pause". I should note, however, that CO Denhartogh's evidence about precisely when the pause occurred was not consistent. The above selection from the interview report suggests it happened prior to the grievor turning and slapping CO Cassibo. But in cross-examination, when it was suggested to her that she could not have seen the grievor's face clearly while he was facing the outer door, CO Denhartogh revised her account to locate the "pause" as having occurred after the grievor turned to face Cassibo but prior to the slap.

There is nothing in any of CO Cassibo's evidence (i.e. her occur­rence report, interview statement or oral evidence before me) to suggest any such pause. Similarly, but for a single word uttered virtually at the conclusion of his protracted interview, there is nothing else in any of the grievor's evidence which is consistent with any significant "pause".

Two observations are in order. First, I have not and do not find it necessary to make any negative credibility findings in relation to the evidence of the three eyewitnesses' accounts of the events in ques-tion. I accept that each of them made their best efforts to give their evidence in as candid a fashion as possible with a genuine desire to tell the truth, as they perceived it. Despite that, I must note that it was the evidence of CO Denhartogh which most often came into conflict with that of others, generally on points of little ultimate relevance (e.g. whether the grievor opened the door with his left or right hand; whether the grievor was carrying his lunchbox/cooler; whether the atmosphere inside the sally port was convivial right up to the slap; whether it was the grievor or CO Cassibo who last closed the inner sally port door; whether CO Denhartogh spoke inside the sally port after the slap and before the grievor's departure, to list but a few incidents). Again, I do not suggest that there was any effort to mis­lead the Board or to otherwise tailor her evidence, rather I believe these discrepancies are the product of little more than a universal human frailty — imperfect memory.

I am also concerned that the process of investigation and adjudi­cation may have imposed unreasonable expectations on the eyewitnesses. The central event in question was little more than a moment in time. Yet the witnesses have been subjected to extensive investigations (with interviews lasting many hours), examinations and cross-examinations whose transcripts might fill volumes. It is little wonder that they have produced discrepancies in description, even where the essential facts are not in dispute. And a chief tech­nique used by all to further their inquiries was to ask the witness to freeze a moment in time, to put the video on "pause", and subject the image to intricate detailed questioning before asking what happened next. This approach is an invitation for the conflation of recollec-tions. I am reminded of the high school mathematics teacher's paradox — inviting students to stand four feet away from and to walk, in each of a series of steps, halfway to the door with each suc­cessive step. The motion can be repeated an infinite number of times without ever reaching the destination so close to hand. Similarly, there is room for an infinite number of intervals or "pauses" within even a brief moment of time. Unfortunately, I am not persuaded that this is necessarily the most effective or reliable way to attempt to reconstruct those infinite components to arrive at a clear picture of the deconstructed events. Much of the grievor's response in cross-examination points to this very difficulty (perhaps once again highlighting the distinction between actual recollection and an after the fact analysis of a past event). When asked about his acknowl­edgement of a "pause" in the investigation interview, the grievor conceded that when trying to break it down for the investigator, when breaking events down "frame by frame...it comes across as a pause" but also clearly asserted that his reaction was immediate, that he pulled his hand from the door and immediately slapped CO Cassibo.

In summary, the evidence of a "pause" originates in CO Denhartogh's interview statement, although she seems to have radi­cally revised the nature of its timing later in her evidence. There is support for the existence of a pause in a single word uttered by the grievor close to the conclusion of his protracted investigation inter-view. That utterance is completely inconsistent with all of the grievor's other evidence. Indeed, the limited and elusive evidence of any "pause" is inconsistent with all of the occurrence reports and all of the other evidence of all of the eyewitnesses. It is for these reasons that I have concluded that there was no meaningful pause in the events, no significant hesitation by the grievor between the time the door was kicked shut and his slap of CO Cassibo. While no claim was advanced or could be supported before me that it was without intent, the grievor clearly acted or rather reacted in a reflexive fashion without forethought.

Evidence of Dr. McDermott

Dr. W.V. McDermott is a clinical psychologist who treated the grievor during five one-hour sessions over a period of three months subsequent to the grievor's discharge from employment. His creden­tials are most impressive. Of particular relevance for these proceedings is the fact that his clientele tends to be comprised chiefly of law enforcement personnel and their families. He has consulted for numerous local, provincial and federal law enforcement agencies, including some prior work done for the Windsor Jail. He is thus possessed of an understanding of the roles and responsibilities of COs and is familiar with the corporate culture of the institution.

Dr. McDermott has been called upon many times to assess the suitability of candidates for integration into and, more importantly for our purposes, reintegration into or repatriation to a police or cor­rections environment. He testified that his 30 years of experience and his high success rate (in terms of both positive and negative rec-ommendations) have enhanced his own confidence in the reliability of his own predictions. He offered an entirely unambiguous and largely unchallenged view of the grievor's positive chances for successful repatriation into the corrections environment. That assessment was based, in large measure, on an evaluation of the grievor's response to his circumstances. Dr. McDermott testified that the grievor exhibited genuine shame and remorse in relation to his having struck CO Cassibo. Dr. McDermott accepted those senti­ments as authentic, in part because the grievor demonstrated no inclination towards denial or blaming of others for his misfortune, a tendency he has witnessed frequently in other patients. He predicted an exceedingly low probability of the grievor being involved in any future similar incident. He found the grievor to be trustworthy, reli­able and chastened by the incident.

The basis for the employer's decision

Murray Laird testified as to his deliberations and the factors he considered in determining to terminate the grievor's employment. It will be recalled that the discharge was effected on the basis of the following stated grounds:

• On March 27, 2003, you intentionally struck a female correctional officer, who was under your direct supervision.
• You violated Ministry policies including, staff conduct as directed by the ADI, the WDHP policy, and the Windsor Jail Standing Orders.
• You violated the Statement of Ethical Principles.
• You contravened Ministry policy when, prior to leaving the institution, you failed to submit an Occurrence Report or otherwise report the incident to the Superintendent.

First, Mr. Laird indicated that had the grievor's only transgression been his failure to file a timely occurrence report, he certainly would not have been discharged on that basis alone, indeed, he likely would not have been disciplined at all (in that regard I note once again that neither of the other two eyewitnesses was disciplined for that parti­cular infraction).

In relation to the three remaining grounds, Mr. Laird indicated that it was clearly the first that dominated his decision and that ground alone would have been sufficient in his mind to justify the discharge.

In view of that, I do not find it necessary to pursue in any great detail the nature of the second and third articulated grounds. I accept the soundness of Mr. Laird's assessment of the first ground being the principal one, given that both the second and third are, in large mea-sure, simply restatements of the first. They represent perhaps different ways of characterizing the grievor's conduct as unaccept-able. But however many different ways it may be described as such frankly adds little to the clear and undeniable impropriety of the grievor's conduct. In that regard, I also note that the contents of many of the policies referred to are merely restatements of the same principles and concerns which would lead to the conclusion (even without any formal policies addressing the point) that the grievor's conduct was unacceptable.

I will, however, make one comment in relation to the invocation of the Workplace Discrimination and Harassment Prevention ("WDHP") Policy. It is not necessary for me to decide the formal breadth of that policy and, in particular, whether it is restricted to addressing conduct which is contrary to the provisions of the Human Rights Code, R.S.O. 1990, c. 11.19. It undoubtedly captures such conduct and perhaps more. But the evidence before me is clear — and indeed Mr. Laird candidly conceded the point — the grievor's conduct was not a function of CO Cassibo's gender. This was not a case of sexual harassment or discrimination which might, on that basis, have been caught by the WDHP policy or by the Human Rights Code or other legislative provisions of general application.

Returning then to Mr. Laird's deliberations, it is clear that a sig­nificant factor in his mind was his assessment of the grievor's credibility and, in particular, his conclusion that the grievor was less than honest at the allegation meeting held on May 30, 2003. I have already indicated why I find that conclusion to have been incorrect. Mr. Laird based his conclusion on what he described as differing versions with respect to "pause/hesitation" proffered by the grievor — that there was no hesitation mentioned in the occurrence report, that it was then acknowledged in the investigation interview and finally denied again at the allegation meeting. I have already determined that there was no such pause. Mr. Laird's conclusions about the grievor's lack of candour in this regard are based virtually exclusively on the latter's one word utterance at the investigation interview. There is, of course, no inconsistency on this point between the version offered in the occurrence report and the allega­tion meeting. And to seize on a single word divorced from the context of the entire protracted investigation interview is simply not an appropriate basis to found the conclusion of dishonesty on the grievor's part.

I have, however, clearly indicated that the grievor's initial versions of events (in his occurrence report and at the start of the investigation interview) were less than entirely accurate or candid. But, as I have also concluded earlier, by the end of the investigation interview (some two months prior to the discharge and certainly well in advance of the allegation meeting), the grievor had provided a full and candid version of the events as they transpired and his role in them. It is for these reasons that I have concluded that the grievor's lack of candour was neither as protracted nor as significant as the employer concluded.

There are other aspects of Mr. Laird's conclusions which I find difficult to square with the evidence before me. Mr. Laird concluded that the grievor failed to demonstrate any remorse. The evidence, however, suggests the contrary. The grievor apologized almost immediately and subsequently took advantage of every opportunity to express his remorse. It is unclear to me on what basis Mr. Laird chose to discount or ignore those expressions. The grievor also made efforts, through the union president, to meet with and offer a more formal apology to CO Cassibo. Based on those events and on the grievor's demeanour while repeating those senti­ments in his evidence, I am satisfied that these expressions were genuine. I note as well that conclusion is consistent with Dr. McDermott's conclusions about the authenticity of the grievor's expressed feelings of shame and remorse.

I am also at pains to understand what accounts for the scepticism of Mr. Laird (and others) in relation to the way in which the grievor opened the external sally port door. Although Mr. Laird later quali­fied the statement, he suggested he believed the grievor's hand was on not in the door at the relevant time and that a "normal person" would not put his hand "in the door" to open it. I have already described the mechanics of how the grievor opened the door — he did it in a fashion which strikes me as perfectly natural — particu­larly for someone whose other hand was occupied, holding his lunchbox/cooler. Nor, as I have already concluded, is it apparent to me (as Mr. Laird suggested) that the mechanics of the movements necessitated a pause or any significant hesitation on the grievor's part.

Finally, on these miscellaneous points, I am also troubled to some extent by the factors Mr. Laird chose not to consider. He had never seen and took no opportunity to peruse the sally port and, in particular, the door in question to assist him in his assessment of the grievor's version of events. Similarly, I am also somewhat trou­bled that the employer took no steps to seek the input of any managerial representative to comment on the grievor's employ­ment history and character. And while this is not a critical point (Mr. Laird did review the grievor's personnel file), the employer would have undoubtedly been a better position to assess the appro­priate employment fate of the grievor had it been possessed of the authoritative first-hand type of information one of many super­visors would have had about the quality of the grievor's contribution to the enterprise.

There is one further aspect of Mr. Laird's assessment which must be noted and to which I shall return later. In determining the prospect of the grievor's continuing employment, Mr. Laird indicated that he had concerns about the grievor's ability to satisfy his employment obligations. In particular, he expressed the view that the grievor's conduct was inconsistent with the employer's ability to trust him to perform some of the basic requirements of the CO position: to be able to exercise sound quick judgment, to use the minimal reason­able amount of force dictated in difficult circumstances, i.e. to exercise good judgment and to ensure that any use of force was reasonable and not excessive in the circumstances. He also sug­gested that to have perceived a fellow CO as a threat demonstrated that the grievor's judgment was askew. As a result, he questioned whether or the grievor would be able to command the trust required from his co-workers.

The grievor's employment history

As of the date of the incident, the grievor had been a CO for over twelve years. His accomplishments during that period of time are legion. Among them, he was a member and team leader of the Institutional Crisis Intervention Team (ICIT), a trained escort officer, a certified AMS trainer, a member of the Ministry's ceremonial unit, had completed a professional development program related to the handling of mentally ill offenders and, shortly before the incident, was to commence training to become a "use of force instructor". His file discloses at least six separate occasions upon which his perfor­mance was determined to be worthy of the written commendations prepared by managerial representatives, most often by the (then) Superintendent of the Windsor Jail, Donna Cornwall. As I have already detailed, the grievor's performance was obviously suffi­ciently impressive to permit the employer to repose the requisite trust in him to assign him the supervisory position of Acting OM 16 for a period of some four years.

Even the singular negative notation on his file speaks to positive qualities relevant to the present proceedings. In September 2000, the grievor received a disciplinary letter of reprimand in relation to an error he had made in reviewing an inmate file. Although discipline was imposed, the employer was satisfied that this was an isolated incident and the Superintendent felt compelled to remark on the grievor's "honesty and acceptance of responsibility, admission of error", qualities which, I believe, the grievor has by and large demonstrated before me. (I note, of course, that the employer did not seek to rely on this discipline to support the termination.)

The grievor has never previously been involved in or been the subject of any investigation pertaining to any alleged improper use of force.

Decision

The issues before me are relatively straightforward: I need not determine whether the grievor's conduct was worthy of discipline; he and the union concede that point. I must determine, however, whether, in all the circumstances, the penalty imposed was appro-priate. If so, the grievance must be dismissed. If not, I must then determine what the appropriate penalty ought to be and, in that context, I must also consider the employer's submissions that the grievor be provided with a remedial alternative to reinstatement or, as a final alternative, that if he is to be reinstated it be subject to certain conditions.

And just as the issues are relatively straightforward, there is similarly no controversy between the parties as to the legal context in which these issues are to be resolved. Essentially, while the parties disagree as to the ultimate appropriate disposition of the matter, neither of them questions my jurisdiction or authority to do any or all of the things they have urged me to do.

The parties filed numerous authorities in support of their respec­tive positions. As there are no pure legal issues in dispute and as the cases are all capable of being more or less readily distinguished on the basis of their particular facts, I have found the case law to be of great assistance in setting the general parameters of my inquiry but, otherwise, of little direct specific application.

I will, however, refer to one of the cases submitted since it is fre­quently cited as providing a (non-exhaustive) taxonomy of the factors arbitrators should take into consideration when deciding whether or not to exercise the power to mitigate a disciplinary penalty. They are listed in Arbitrator Reville's decision in Re Steel Equipment Co. and U.S.W., Loc. 3257 (1964), 14 L.A.C. 356 at pp. 357-58, et seq:

1. The previous good record of the grievor...
2. The long service of the grievor...
3. Whether or not the offence was an isolated incident in the employment his­tory of the grievor...
4. Provocation...
5. Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated...
6. Whether the penalty imposed has created a special economic hardship for the grievor in light of his particular circumstances...
7. Evidence that the company rules of conduct, either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimina-tion...
8. Circumstances negativing intent, e.g. likelihood that the grievor misunder­stood the nature or intent of an order given to him, and as a result disobeyed it...
9. The seriousness of the offence in terms of company policy and company obligations...
10. Any other circumstances which the board should properly take into con-sideration, e.g. (a) the failure of the grievor to apologize and settle the matter after being given an opportunity to do so...

It may be useful to briefly review the application of these consid­erations to the case at hand. It is clear, however, that the vast majority of them (although, in fairness and perhaps not unlike the multiple grounds for discharge, many of these considerations dupli­cate each other in the circumstances of our case) militate in the grievor's favour and only one clearly points in the opposite direction.

The only prior discipline on the grievor's record is a minor sanc­tion upon which the employer places no reliance. I have already detailed how, even in disciplining the grievor, the employer chose to praise him. The grievor has a significant amount of service to his credit. There is no question that this incident is an isolated one in the grievor's employment history.

The union was exceedingly careful not to describe CO Cassibo's conduct as amounting to provocation. That caution in relation to another one of its members is at least understandable if not warranted. And there is no doubt that CO Cassibo is the chief victim in the piece. At the same time, however, her conduct, while in no way even beginning to approach the impropriety of the grievor's, was not entirely neutral. The union asserted that despite a lack of for­mal provocation, one could see CO Cassibo's conduct as a "stimulus" to help to understand the nature of the grievor's response. Frankly, I am inclined to be slightly less charitable in relation to CO Cassibo's conduct. The employer suggested that the grievor's con­duct crossed the line from horseplay into more serious conduct. There can be no disputing that. But the employer also suggested that CO Cassibo's conduct — her kicking of the door — was a mere extension of the horseplay which had preceded that action. It was, but with potentially much more serious consequences. CO Cassibo's forceful kick of the door in circumstances where injury could result was more than mere horseplay. I do not mean to suggest that there was any intent to cause injury on her part — there clearly was not — but her conduct was reckless in the circumstances and, I believe, was worthy of some minor discipline. In those circumstances, whether or not her conduct ought properly to be characterized as provocation, I see it as providing a context for the assessment of the grievor's response. The situation is perhaps best summed up in the exchange between the two immediately after the slap, reported generally as a variation on he said: "You almost got my fingers caught in the door"; she said: "That doesn't mean you can hit me".

The grievor's offence was not premeditated. Rather, it was com­mitted on the spur of the moment, a momentary aberration related to a strong emotional impulse. I accept that he genuinely felt physically threatened (even though CO Cassibo had no corresponding deliber­ate intent to injure) and believed that he had narrowly escaped injury. I also accept that there was some objective basis (again, even despite CO Cassibo's lack of intent to injure) for that feeling and belief.

There was evidence, which I have not detailed here, to suggest there was clearly an economic impact as a result of the discharge. Whether or not that amounts to "special economic hardship", this factor certainly does not weigh against the grievor.

I have detailed some of the evidence which suggests differential treatment in two respects. The grievor's discharge was based, in small part, on his failure to prepare a timely occurrence report, an identical offence which went undisciplined in the other two partici-pants. However, in view of Mr. Laird's evidence on this point, I do not attach much significance to this. More important, is the employer's failure to impose any discipline at all on CO Cassibo for her part in the events. I do not mean to suggest that the level of appropriate discipline for CO Cassibo's conduct would have been remotely close to the level of discipline the grievor's conduct war-ranted, but the failure to impose any discipline at all suggests to me a type of inappropriate differential treatment.

I have had much to say already about the grievor's intent. His conduct, though obviously not premeditated, was clearly intentional. His reaction, however, was more in the nature of a reflexive reaction, a poor one indeed.

The one factor which clearly militates against the exercise of dis­cretion to modify the penalty is the seriousness of the offence. I will return to this point.

I am satisfied that the grievor apologized promptly and made fur­ther repeated efforts to formalize that process.

There is but a single factor which provides some pause to my deliberations, whether in respect of the exercise of my discretion to alter the penalty or in relation to the employer's alternative submis­sion that, even if the imposed penalty is determined to be too severe, the grievor ought not to be reinstated. That is the seriousness of the grievor's conduct. For the employer that issue translates into its submissions that the grievor's conduct either warrants discharge or, alternatively, should be seen as eliminating the real possibility of reinstatement.

The employer's position is premised on the unique nature of the corrections environment and exacting demands of the position of CO. COs operate in a hostile environment and have to insure order within the institution. Their duties include the control and discipline of inmates in order to protect other inmates and fellow staff from physical harm. They can be called upon to control rebellious and disturbed inmates in circumstances where the use of reasonable and appropriate force may be required. The employer must be able to trust that its employees will exercise appropriate judgment — some­times to be formulated in a split second — to use a reasonable amount of force, and no more, in the circumstances. Similarly, fellow employees must trust that the appropriate judgment will be used in circumstances where they may be in need of "back up". It is not surprising that the grievor's conduct may have given rise to these types of concerns.

I am satisfied, however, that these con­cerns are insufficient to warrant sustaining the grievor's discharge or to otherwise preclude his reinstatement to employment. I come to that conclusion for a number of reasons. First, in assessing the nature of the grievor's conduct, it is not entirely apparent to me that it nec­essarily reflects on his ability to properly discharge his employment obligations. In that regard, I am not persuaded that the employer's assertion that the grievor's response to his co-worker should neces­sarily be taken as an indicator of his likely or possible future response to an inmate. In that context, I note that the incident in question transpired at the end of a shift removed from the inmate area of the institution and while the grievor was leaving the jail. This was not a more typical work circumstance where the grievor was or needed to be prepared to, at a moment's notice, deal with an unruly inmate. In that respect, the circumstances may be generally more comparable to those cases referred to by the union outside the corrections context than to those cases cited by the employer which related directly to the care and control of inmates.

More importantly, however, while the grievor's conduct may legitimately have given the employer some pause, there are simply too many other indicators which serve to reduce those concerns. The grievor's long history of stellar performance, the absence of any remotely comparable type of incident over a period of a dozen years coupled with my conclusion that his remorse and efforts to apologize all suggest that any similar reoccurrence is not likely. I am also impressed by the acknowledgement of both COs Cassibo and Denhartogh that, at least prior to the incident, they each had signifi­cant regard and respect for the grievor and both acknowledged the uncharacteristic quality of the grievor's conduct on that day. Finally, I am buttressed in my conclusion by the assessment of Dr. McDermott, a seasoned health care professional with particularly relevant expertise, of the grievor's positive chances for successful "repatriation".

The grievor committed an extremely serious transgression for which he must suffer significant consequences. I am not persuaded, however, that this error warrants the end of an otherwise promising career. The grievor has demonstrated, over a significant period of time, a clear ability to make a valuable contribution to the enterprise. He should be afforded the opportunity to demonstrate his continuing ability to do so. I am satisfied, in the circumstances, that a suspension of one month is the appropriate penalty for the grievor's transgression.

This modified penalty will be conditional upon the grievor completing his efforts to proffer a full apology to CO Cassibo. He is to prepare a written apology, accepting responsibility for his actions, to be deliv­ered to her. He may seek whatever assistance he feels appropriate in drafting the apology. Further, but only if CO Cassibo consents, he is to deliver this apology personally in a meeting which the employer and the union will no doubt facilitate (perhaps even, should the par­ticipants consent, with the participation of an acceptable third party) in order to begin to repair that relationship.

I have not ignored the concerns expressed by CO Cassibo regard­ing working with the grievor in the future. As of the date of providing her testimony to the Board, CO Cassibo had yet to return to her position at the Windsor Jail, she was working, apparently on a temporary basis, in a different position and location within the Ministry. It may be, however, that she has now or will, at some near future point, return to her position at the Windsor Jail. In contem­plation of that possibility, I direct that, subject to CO Cassibo's ability to waive or terminate this requirement, the grievor and CO Cassibo not be scheduled to work together on the same shift for a period of one year from the date of the grievor's reinstatement. To the extent that this requirement generates any inconvenience or dis-advantage, that inconvenience or disadvantage is to be borne by the grievor. It is my hope that both the grievor and CO Cassibo will make every reasonable effort to rebuild their relationship and to recapture the friendly and productive dealings they previously had. But I make no direction in relation to CO Cassibo in that regard.

Subject to the foregoing and to the extent set out, the grievance is allowed. The grievor's discharge is to be replaced with a one-month suspension. He is to be reinstated to his home position with com­pensation (subject to the suspension and to the usual limitations regarding mitigation) without loss of seniority or benefits. I shall remain seized with respect to any issues arising from the implementation of my award.