GSB#2010-2164
UNION#2010-0270-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Richard)
Union
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Loretta Mikus
Vice-Chair
FOR THE UNION
Lesley Gilchrist Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Roslyn Baichoo Ministry of Government Services Labour Practice Group Counsel
HEARING
June 17, November 3, 2011, January 19 & 20, February 7, 2012.
Decision
1The grievor, Jeffrey Richard, was employed as a Transportation Enforcement Officer (TEO2) with the Ministry of Transportation from August of 2006 until he was suspended from duty on August 8, 2008 and subsequently terminated on September 16, 2010. The reason for the suspension and termination was set out in a letter that stated as follows:
On August 5, 2008 you were suspended with pay and without loss of credits pending a completion of a fact-finding investigation into allegations of inappropriate conduct that have been brought to the Ministry’s attention by the Niagara Regional Police Services. You were arrested in 2008 and charged with 4 counts of Performing an Indecent Act, which is an offence under the Criminal Code of Canada, section 173.1. You pled guilty to 2 of those counts and were found guilty of both. All facts in regard to all counts were read into the record and you agreed that you had, in fact, committed these offences.
As a result of these events and pending the outcome of the police investigation, the Ministry conducted a fact-finding investigation. Management has had an opportunity to review all of the facts collected during the investigation and has concluded there is a link between your off-duty conduct, which is very serious and led to the guilty pleas under the Criminal Code of Canada, and your position as a Transportation Enforcement Officer with the Ministry. Management has also concluded you breached the following sections found in 1.2.1 of the Enforcement Procedure Guide.
Off-Duty Conduct
The off-duty conduct of an Enforcement Officer may be of concern to the Employer if the act or condition detrimentally affects the reputation or public image of the employer, undermines the employer’s authority, renders the employer unable to properly discharge his/her employment obligations, causes other employees to refuse or be reluctant to work with the employee or inhibits the employer’s ability to efficiently manage and direct operations.
Criminal Conduct
An enforcement office shall not engage in activity that may result in criminal charges or convictions wherein the act or offence jeopardizes or prejudices the employer’s property or security, its reputation, the interests of other employees, or, if the offence is incompatible with proper discharge of his/her duty.
Conduct Relating to Other Agencies
Enforcement Officers shall not become engaged in any activity or any form of conduct which would compromise his/her ability to work effectively with any police agency or any other government or public agency.
That letter was signed by Mr. Tony Foster, Director of Regional Operations Branch Road User Safety Division.
THE FACTS
2The grievor was hired in 2006. He had a clean employment record and there were no complaints about his performance at the time of his termination.
3On August 2, 2008, the Manager of Central Region Field Services of Road User Safety Operations, Mr. Glenn Dunphy, received an e-mail message from a Detective Sergeant of the Niagara Regional Police Services (NRP) advising him that an Enforcement Officer of the Ministry, Jeffrey Richard, had been arrested. He had been observed acting inappropriately in the area of the Niagara Recreational Waterway in the city of Welland. He had been charged with four counts of Committing an Indecent Act, an offence under the Criminal Code of Canada. His first court appearance was scheduled for September 28, 2008. The detective advised Mr. Dunphy that there had been a series of similar complaints over the past two years and asked for the Ministry’s assistance in their investigation by allowing them to review the grievor’s work schedules. On August 6, 2008 the grievor was suspended with pay for 20 days pending a fact-finding investigation.
4A TEO is hired into an entry level position of TEO1. Once certified he/she becomes a TEO2 and a Provincial Officer and is able to enforce relevant legislation by laying charges, appearing in court and testifying for the Crown. TEOs are generally recruited from community college out of the law enforcement programs. The Ministry is looking for people with enforcement experience, which they consider to be a demonstrated high respect for the law.
5The primary role of a TEO is to ensure that vehicles are mechanically fit and drivers are competent to operate those vehicles. If either fails to pass the test for fitness, a TEO can impound the vehicle, ground the driver and take the vehicle out of service. As Provincial Officers they can write tickets and lay charges that can result in significant fines. They have legal authority and credibility. They have to know the provisions of the Highway Traffic Act, a highly technical and complex piece of legislation. They spend 9 weeks in a training program that consists of three week training periods interspersed with three week periods of work at the inspection centres. They are taught how to deal with difficult and rough drivers through defensive tactical training.
6The grievor worked in what was then the Central Region which included Hamilton and Niagara regions. He was positioned at the Vineland station, the most strategic inspection centre because it has a high volume of traffic and includes vehicles entering Canada from the United States. The station is open 24/7 and has 30 staff members who work in platoons of 4 or 5 officers under one Enforcement Supervisor.
7Mr. Dunphy did not know the grievor personally at the time of these events and only became aware of him in August of 2008, one week after he took over his new position, when he was told the grievor had been found flashing some girls in a park in Welland and that he was on a paid leave of absence pending the results of an investigation. He did not meet with the grievor at the time because they were waiting for the results of his criminal proceedings. The first meeting was scheduled for December 3, 2009 but, at the grievor’s request, was adjourned until December 11, 2009. In attendance was the grievor, his Union representative Kerry Gennings, Mr. Dunphy and Lianne Pollock, a Human Resources Advisor. The grievor stated for the record that he was there under duress since the matter of sentencing was still before the Court he was uncomfortable discussing the details. He stated that the incident had nothing to do with his employment. He also advised the Employer that he had been under the care of a psychologist since his arrest and that he been discharged from treatment because there was nothing more he could do to assist him. Mr. Dunphy felt the grievor was very uncomfortable and resented being forced to attend the meeting. At one point the grievor said he had acted out of anger towards the police and women, which caused Mr. Dunphy concern. The Ministry has frequent contact with the police and must maintain a professional and co-operative relationship. The Ministry often conduct blitzes with the OPP and use their radio centre. They also rely on their assistance when a situation occurs on the roads. Mr. Dunphy had similar concerns about the grievor’s comment about his anger towards women. There are many female drivers on the roads and numerous female Ministry employees that the grievor will encounter during his routine duties.
8At the time the grievor was free on bail and awaiting sentencing. The terms of his bail required him to inform the police of any change in address or employment, to have no contact with certain named individuals, presumably the victims, and to stay 50 meters away from any waterway trails. He reiterated the fact that he did not commit these acts while on duty or in uniform and his actions had no impact on his employment with the Ministry.
9The grievor did attend a trial on January 14, 2010 and was found guilty on two counts of committing an indecent act, placed on probation for three years and given a conditional discharge. The grievor advised the Employer of the decision of the Court almost immediately but did not provide any further details. The Employer ultimately obtained a copy of the Court transcript which it took into consideration when contemplating its future action. It was through the transcript that the Employer learned that the grievor had pled guilty to the two charges and that the other two had been withdrawn. It also learned that there were ten other similar incidents that the grievor had admitted to but for which no charges had been laid. The Employer became even more concerned when it discovered that the incidents had taken place near a girls’ high school since they were located near a high school in St. Catharine’s.
10After obtaining the transcript, the Employer arranged another fact-finding meeting for June 23, 2010. When they began discussing the transcript and the charges, the grievor immediately informed them that there was no conviction on his record since a conditional discharge is considered to be an administrative pardon. Mr. Dunphy described the grievor as adamant that one only receives a criminal record upon conviction and he had never been convicted of a criminal offence. When the Employer attempted to review the transcript the grievor became irritated and insisted there were no charges pertaining to the ten additional incidents and no sworn testimony on record about them. He also claimed he was under duress when he agreed to them and refused to answer any more questions. The Employer had been expecting some indication of remorse and was surprised when the grievor presented himself as a victim. Mr. Dunphy felt the grievor thought it was unfair that he had to defend himself and that the Employer was overreacting. He tried to minimize the incident, claiming he had only pled to two counts of a summary offence.
11On July 7, 2010 Mr. Dunphy sent the grievor a letter advising him that his suspension was being extended for an additional 20 days. On August 5, 2010, the grievor was told by letter from Mr. Foster that he would now be considered on a temporary leave with pay. Two weeks later he was advised that because he had pled guilty to two of the four charges and, after the Ministry had reviewed the two fact finding investigations, the Employer concluded there was a link between his off-duty conduct and his duties as a TEO. He was invited to attend a meeting on September 3rd to offer any additional information and/or mitigating factors he wanted the Employer to be aware of.
12That meeting took place as scheduled with Mr. Dunphy, Mr. Foster, Mr. Clark and Ms. Pollock, HR Advisors and the grievor present. The grievor stated that the charges were the result of a diagnosed mental illness and that he had been undergoing treatment for since his arrest. He assured them that his name had not been published and he did not have a criminal record.
13After that meeting the Employer representatives discussed whether discipline was warranted and, if so, what would be appropriate. Given the totality of the evidence, it was their conclusion that discharge was the only result. The grievor had shown no remorse for his actions, had not acknowledged responsibility for the four initial charges or the additional ten incidents that the police had investigated. More troubling to the Employer was the fact that he had targeted young women. The Employer was concerned for the safety of the women he worked with, particularly while working with them alone on a night shift.
14Mr. Foster was the Director of the Regional Operations Branch, Road User and Safety Division. His primary responsibility is to oversee the delivery of the safety programs of the Ministry, particularly with respect to commercial traffic. He became aware of the grievor through Mr. Dunphy but did not know him personally at the time. He first met him during the fact-finding investigation. He reiterated the duties of the TEO2 with respect to enforcing the laws of the Province and stressed their power to lay charges, take the vehicle off the road and decide on the appropriate penalties. He placed emphases on the importance of a professional relationship with the local police; their joint enforcement initiatives and their need for assistance in potentially dangerous situations. He waited for the outcome of the grievor’s criminal proceedings and read the trial transcript before attending another fact-finding meeting after which he, Mr. Dunphy, Mr. Clark and Ms. Pollock discussed their next course of action. They considered the nature of the grievor’s actions, his short employment history, his lack of remorse, his need to maintain a relationship with other agencies, his credibility as an agent of the Ministry and the fact he would have to work with female TEOs who did not want to work with the him, although he was unable to name the women who had said that and was not personally aware of any complaints.
15Mr. Foster weighed these factors against the criteria set out in the Millhaven case and determined that this case met three of the five criteria and he was comfortable with their decision to discharge the grievor.
16In cross-examination he was directed to portions of the transcript which the Union claimed were indicative of the grievor’s remorse. Mr. Foster stated that he had read the transcript but did not think the grievor’s comments showed any remorse or any expression of responsibility for his actions.
17Mr. Alfred Doussept is an Enforcement Supervisor in the Niagara inspection station at Vineland. He had been approached by other TEOs about their concerns about working with the grievor if he were to be reinstated. They related their concerns about the ramifications if he was called to testify in Court. He expressed his own view that, as uniformed employees of the government, they have a public image and he was concerned that the grievor’s conduct reflected badly on them. He reinforced the previous evidence about the need to work closely with other police agencies such as the Niagara and Hamilton Police Services, the OPP, RCMP and Canadian Border Services. He also described the duties of a TEO to testify in Court as the involved Officer or as an expert witness. The grievor testified in Court more often than other TEOs because of his willingness to write tickets.
18Mr. Doussept testified that he had not had any conversations about the grievor with other employees because it would have been out of bounds and he would have anyone who had initiated such a conversation it was improper. For the most part it had initially been a secret in the workplace because of the criminal proceedings. Employees knew the grievor had left but did not know the reasons. There had been some questions posed to him about whether the Employer could stop the hearing. Mr. Doussept named seven employees who had approached him about rumours of the grievor’s possible return to work. He testified that he personally was not afraid to work with the grievor and that he would not quit if the grievor was to be reinstated.
19In cross-examination he was asked if every offence committed by a TEO would warrant discharge. He said it would depend on the offence. Speeding or running a red light would not but offences such as murder, rape and serial assaults cross a moral line and would be deserving of a severe penalty.
20Ms. Tricia Davis is a TEO stationed at the Vineland inspection station. She described the collegial and co-operative environment that exists at Vineland. She worked with the grievor for two or three shifts when she first started in 2008. She came forward to explain her concerns about her personal safety and the effect the grievor would have on the atmosphere in the workplace. She voiced her worries about how she should address him and how she should treat him. She stated they have had discussions at work about their lack of trust in the grievor and how essential it is to trust your back-up on the road.
21In cross-examination Ms. Davis stated that she had not been aware of the actual charges or court order respecting the grievor and learned about them from her Enforcement Supervisor Mr. Doussept just before her appearance at the hearing.
22Gavin Fear is a TEO at the Vineland inspection station. He had worked with the grievor in the past and was generally aware of the charges against him through discussions at the workplace, including talk of his return to work. He stated he did not want to work or be associated with anyone who had been charged with flashing. He did not want to have to worry about what might happen, especially with the female employees. He was concerned about the effect of the grievor on the workplace and feared that teams would be split along gender lines if the grievor returned. He expressed concern for the public and the female drivers the grievor would encounter in performing his duties. He testified that he loved his job and derived great satisfaction in a job well done. He spoke of similar views of staff members who said they did not want to work with the grievor if he came back to work. He had never worked with the grievor and had no personal animosity towards him; he simply did not want the grievor to wear the same uniform as he did.
23The Union called two witnesses to counter the Employer’s evidence concerning the grievor’s return to work. Ms. Edie Strachan is a TEO in the Central West Region and the President of Local 506. She had gone through basic training with the grievor and had worked with him at Vineland some time ago. She was aware of the charges against him and knew that he had been given a discharge and was on probation. As President of the Local she had discussed the situation with the women on the Executive for their views with respect to the Union’s role in seeking his reinstatement. She described the grievor as one of the most capable officers she has known and would have no difficulty working with him in the future. She had absolutely no concerns about the grievor’s professional judgment.
24Ms. Corrine Santangelo is a TEO in Halton region and Vice-President of the Local. She has known the grievor since the previous November and became involved in his situation when she was contacted by Ms. Strachan who discussed the details of the grievor’s charges and Court ruling. She works as a team member and also takes great tide in the uniform she wears and she assumed the grievor felt the same way. She testified she would have no difficulty working with the grievor if he was to return to work.
25The next witness was the grievor. He is 31 years old, has been married since 2000, has a stepdaughter and owns his own home in Welland. He has been a volunteer with the Canadian Coast Guard for the past ten years. He described his duties in some detail, which were consistent with the previous evidence and the Job Specification entered as an exhibit. He said he enjoyed the job, found it challenging and it provided a good living for his family. Since his termination he has applied for numerous jobs but has been unable to find anything full-time or permanent. He testified that he was somewhat uncomfortable about returning to the workplace but said he was the same person and officer he has always been and his colleagues should have no misgivings.
26He talked about the arrest and subsequent events. He was seen nude by two young women on a trail by the canal in Welland. He did not expect to be seen by anyone but he made no attempt to hide from them either. When asked whether he had any particular people in mind, he said he had envisioned mature, adult females. He stated he had chosen that nature trail because it was secluded but accessible. He acknowledged he was near a school and that two rowing clubs trained in the area.
27He had left the area but was pulled over by two police officers, and had been charged with four counts of indecent exposure. He later pled guilty to two counts but states there were not enough evidence to proceed on the others. He explained that there is an escalating scale of offences under this provision and his actions were at the bottom of that scale and are considered to be less serious, which is the distinction between a summary conviction and an indictable offence. He was given a conditional discharge with three years’ probation.
28When asked why this had happened, he said it was hard to pinpoint and he had sought counselling after his arrest to help him understand. When he was arrested and interrogated he had been in a compromised mental and emotional state. He and his therapist discussed his past and he came to realize that he was harbouring anger towards women which caused him to act inappropriately. He provided the Employer with a Psychological Report from his therapist, Dr. Belicki, which included diagnosis, treatment and prognosis. That report had been redacted by the grievor but he testified that he had been diagnosed with a sexual addiction. The grievor specifically referred to the therapist’s prognosis and his belief the grievor was at low risk to reoffend. One of the aspects of his treatment involved helping him to appreciate the effect of his actions on others. His attitude before treatment had been that, since there had been no physical assault, there had been no harm. He came to realize that his actions had an effect on his victims as well as his family, community and employment. They talked about alternative outlets for his emotions and the need to seek additional help if he feels he will reoffend. He stated that he does not need any more treatment at this time. He also presented a report from the Court ordered psychiatrist, Dr. Dickey, who diagnosed the grievor as suffering from exhibitionism and projected his risk to reoffend as between 8.7 to 23% over ten years.
29He stated he has had very little contact with employees from the Ministry. The few he has talked to only knew that he had been charged with performing an indecent act. He did not discuss the details with anyone.
30He acknowledged that he had told Mr. Dunphy he had attended the fact finding meeting under duress but he was waiting judgment from the Court and was concerned about saying anything to affect those proceedings. He tried to cooperate with the Employer but, knowing the possible consequences he was trying to protect his employment, which probably made him sound guarded. He denied becoming upset during the last meeting and said it was his Union representative who became upset about the medical reports. He also denied the suggestion he did not show any remorse. He did not express remorse to the women involved or the Judge because he felt bad about what he had done. If Mr. Dunphy felt he had not shown enough remorse, it was because the meeting was several months after the incident and that was not the purpose of the meeting.
31In cross-examination, the grievor admitted that he still had some anger towards his ex-girlfriend but that he had worked through it by using the techniques taught by his probation officer and psychologist. He stated he understood that Mr. Dunphy had concerns about the female officers in the workplace but assured the Employer there was no cause for concern. There have been no issues regarding the workplace and the incidents happened in an entirely different context. As for Mr. Dunphy’s concerns about his relationship with the police agencies, the grievor again stated there was no cause for concern because he had never had anything but a professional relationship with all of the officers he has worked with in the past. However, he maintained that his off duty conduct should not concern the Employer. He did not connect his employment to his conduct away from the workplace. What he did had no bearing on his work performance. The line between off duty conduct an employment was blurred in his mind.
32When he was asked about the effect of his actions on the young women he had exposed himself to, he stated that at the time he did not appreciate that but, after treatment with Dr. Belicki he has come to understand the effect of his actions on others. He could not guarantee that he would never re-offend but at this time he was sure he would not.
33He was directed to the policy that specifically deals with off duty conduct and allowed that on the basis of that policy, off duty conduct is relevant, but pointed out that the policy did not come into force until after he had been arrested. He admitted that he had shown poor judgment but opined that everyone has lapses of judgment. He agreed that he had never said he was sorry but stated that everyone makes mistakes and we can learn from our mistakes. When he was asked whether he thought he had been punished enough, he replied that he was suggesting the ministry take into account the lengthy suspension he had served and the toll it had taken on him and his family.
SUBMISSIONS
34Ms. Baichoo, counsel for the Ministry, submitted that the jurisprudence is clear, an employer can dismiss an employee for off-duty conduct in some circumstances. An arbitrator is called upon to determine whether the actions of the grievor satisfy the accepted criteria to justify discipline and, considering the nature of the conduct, whether discharge is the appropriate response.
35There is no dispute that the grievor was charged with four counts of committing an indecent act, namely exposing himself and masturbating on a public trail. He pled guilty to two counts of committing an indecent act contrary to the criminal code, was given a conditional discharge and placed on probation for three years. These actions, it was said, are incompatible with the duties of a TEO. The Board should uphold the termination for those reasons, especially given his short employment history and limited seniority. Even though he has four years of employment, he was suspended for two of those four years.
36Dealing first with the duties of his position, a TEO is a peace officer under the Criminal Code with the responsibility of enforcing several laws, such as the Highway Traffic Act, the Automobile and Public Vehicle Act, the Motor Vehicle Transportation Act and the Dangerous Goods Act. A TEO is called to testify in Court as a Crown witness or as an expert witness and must be held to a higher standard than other employees; they must be seen as credible. They make the decision to take a vehicle out of service, lay a charge, issue a warning or impose a fine. They have significant independence and are required to perform their duties with integrity and good judgment.
37The Employer submitted that discharge was justified given the nature of the offence. The Union tried to minimize the grievor’s actions by saying it was not near a girls’ school but later had to admit it was in the vicinity. The grievor was found nude and masturbating on trails frequented by the public and but more significantly by young female students of the school. He chose this site deliberately. There is no doubt that this was an exercise of poor judgement.
38The Employer pointed out that the grievor had been diagnosed with exhibitionism and that he had acted out of boredom and stress. He denied there was stress involved in his work, which would be a factor in a repeat of his conduct, notwithstanding the evidence to the contrary of the other employees who worked with him. The Union will say there is a low risk that he will reoffend but his own doctor stated he was a moderate risk which is also of concern to the Employer.
39It was said the grievor described his actions as momentary lapses of judgment but the fact is he admitted not only to the two counts that followed his arrest but also acknowledged that he had committed approximately ten similar acts in the past. He had been acting in a similarly inappropriate manner for some time, not just on the day he was arrested.
40The Employer asked me to consider the grievor’s own attitude about these events. He has maintained that his off-duty behavior should be of no concern to the Employer. He considered the line between his employment and off-duty conduct to be blurred. Once his day’s work is done, he said, whatever he does is his own business. When pressed he finally conceded that he accepted the Employer’s concerns but did not understand them. He was directed to his statement in his memo on mitigating factors that the incident occurred off duty and not in uniform and “in no way involved the ministry”. He reaffirmed that view at the hearing. That speaks to his lack of remorse.
41The Employer submitted that the Board heard from Employer witnesses who testified they did not want to work with the grievor if he were to be reinstated. They are personally affected since they work at the Vineyard location with the grievor. The Union witnesses did not know the grievor and did not work with him. The Employer’s witnesses spoke of their pride in their uniform and their belief that the grievor had disgraced it and them.
42The Employer relied on the following case: Re Millhaven Fibres Ltd. v. Oil, Chemical and Atomic Workers International Union, Local 9-670 (Mattis grievance) [1967] O.L.A.A. No. 4 (J.C. Anderson). It arose out of an unpleasant strike in which two employees in particular had worked during the strike. The grievor, angry with them, drove past their homes and threw objects through their windows intending to burn their homes. He admitted to causing the damage and made restitution but was nevertheless discharged by the company. In considering whether to allow the grievance the Board stated, at paragraph 20, as follows:
In other words, if the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the Company to show that:
the conduct of the grievor harms the Company’s reputation or produce
the grievor’s behaviour renders the employee unable to perform his duties satisfactorily
the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him
the grievor has been guilty of a serious breach of the Criminal Code thus rendering his conduct injurious to the general reputation of the company and its employees
places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.
43The Employer asserted that Mr. Foster had these factors in mind when he was considering what to do. He felt the grievor had met three of the five criteria. He was aware that other employees were reluctant to work with the grievor and believed the grievor’s conduct interfered with the functions of the Employer’s operation. Given the nature of their work, it is vital they maintain good relationship with the Niagara police.
44The nature of the offence was also significant. It was a serious criminal matter and it would be difficult for the grievor to maintain or regain the confidence of others in the workplace. These were not impulsive and spontaneous acts. He had acknowledged that, in addition to the four counts he was charged with and the two he was convicted of, he had been guilty of several previous incidents. In the Millhaven case, the Employer did not need to prove all five criteria: any one of the five would satisfy its onus.
45The Employer submitted that the Union’s assertion that the Employer had not provided any proof of harm to it or its operations is irrelevant. The case law shows that it is not necessary to do so. In this case the grievor works with the public and has the authority to enforce legislation by imposing fines, orders and charges. He will be called to testify in Court and his credibility must be above reproach. The fact the grievor refused to acknowledge the Employer’s legitimate concerns distinguishes him from the grievors who were the subject of other awards. It was submitted that the facts of this case are similar to those in the Re Clinton and Ministry of Community and Social Services (1995) unreported (Briggs). In that case the grievor, a Child Care Worker at the Child Parent Resource Institute, was charged with the sexual assault of a college student on a placement with the Ministry. As in the instant case, he pled guilty and the transcript of the criminal proceedings was read into the record. The Employer had taken the position the grievor had committed such a fundamental breach of trust that discharge was the only response. In that case, the Board was influenced by the fact the grievor had been warned previously about the consequences of another incident of that nature. It was not persuaded that the grievor could or should be returned to the workplace since it had no confidence there might not be another assault.
46In the instant case, it was said, there are no mitigating factors to assist the grievor. He has a short employment history, he has failed to recognize the seriousness of his actions and there is no assurance this will not happen again.
47Regarding penalty, the Employer asserted there is sufficient evidence before the Board to uphold the discharge. In the alternative, if the Board should find there is no just cause, the Employer submitted that reinstatement should not be the result. The Employer witnesses have testified that they have lost all trust in the grievor. The Employer asked the Board to order damages in lieu of reinstatement and to direct the parties to attempt to arrive at an appropriate amount, failing which the Board can reconvene to hear submissions
48In support of its position the Employer relied on these additional cases: Air Canada v. International Association of Machinists and Aerospace Workers, (Beaulieu) (1994), 1994 CanLII 18675 (CA LA), 40 L.A.C. (4th) 80 (Bird); CEP Atlantic Communications Council Local 2289 (RS) v. Bell Aliant Regional Communication LP (2010), 203 L.A.C. (4th) 407 (Bruce); Ontario Public Service Employees’ Union (Clinton) v. The Crown in the Right of Ontario (Ministry of Community and Social Services) GSB File No. 2201/93, 132/94; British Columbia (Workers Compensation Board) and Compensation Employees Union (Campbell Grievance) (1997), 1997 CanLII 24981 (BC LA), 64 L.A.C. (4th) 401 (Glass); Canadian Union of Public Employees, Local 967 v. Canadian Standards Association (Chedd) (1998), 1998 CanLII 30047 (ON LA), 70 L.A.C. (4th) 189 (Hunter); Amalgamated Transit Union, Local 987 v. Lethbridge (City) (Grand Grievance) (2000), 2000 CanLII 50094 (AB GAA), 98 L.A.C. (4th) 264; Civil Service Union, Local 52 v. Edmonton (City) (D.W. Dismissal Grievance) (2009), 2000, AGAA No.77; Henderson Spring (Stratford Operations) v. United Steelworkers of America, Local 8773 (Ewaniuk Grievance) (2009), 191 L.A.C. (4th) 116 (Solomantenko); OPSEU (Gillis et al) v. Ministry of Community Safety and Correctional Services, GSB No. 2003-1520 (Abramsky); Ontario Liquor Board Employees’ Union (LCBO) GSB No. 2033-97, 384/98 and Alberta Union of Provincial Employees v. Lethbridge Community College (2000), SCC 28.
49Ms. Gilchrist, counsel for the Union, submitted that there is little dispute about the events giving rise to this grievance. The grievor pled guilty to two counts of a summary conviction offence under the Criminal Code. He acknowledged he had committed ten similar offenses in the past but no charges were laid with regard to them. The Crown recommended a suspended sentence but the Judge gave him a conditional discharge and placed him on probation for three years. There was no evidence that the grievor targeted any particular people and no finding by the Court or his physicians of pedophilia. He has successfully completed 2/3 of his three year probation. The medical evidence shows that he is a low risk to reoffend, 8%-23% over ten years. There is no evidence that his acts have been prejudicial to the Employer’s reputation; there is no public record linking him to criminal activity. The Employer’s concerns about the grievor’s lack of remorse, another incident, the young women involved or the public safety are anything more than speculation.
50It was submitted that the grievor did not act out because of a drug or alcohol problem. He is suffering from a medical condition and he has been participating in treatment by qualified professionals since his arrest. He admits his actions were examples of a lack of judgement and he does understand the Employer’s concerns.
51The Union submitted that there are aspects of off duty conduct that are outside of the reach of the Employer but, even if that was the case, it should have been seen by the Employer as a mitigating factor in determining penalty.
52It was submitted that the facts of this case do not meet the criteria in Millhaven. The Employer has stated that the actions of the grievor caused damage to its reputation. That is hard to imagine from one conversation with a police officer. There is no evidence that the incident was made public. The one reference in the local newspapers did not mention the grievor by name so there was no way for the public to know. The Employer has failed to show that the grievor’s actions were injurious to the Employer. Nor has it made a causal connection between the grievor’s conduct and his duties as a TEO.
53The Union acknowledged that there is some conduct that is so incendiary that it deserves severe penalties but those situations are rare. Arbitrators have agreed that the damage the Employer alleged occurred must be more than a trifle. Even where it has been determined that discipline is warranted, there are ways to protect an employer short of termination. The Union asserted that if the Employer’s interpretation of the Millhaven case were accepted by this Board, it would mean that every criminal offence, no matter how small, would be deserving of discharge.
54With respect to the Employer’s witnesses, it was argued that they did not know the details of the incident or the Court’s decision. None of them contacted the grievor to ask his version of events. It would also seem that the Employer’s representatives encouraged the dissension in the workplace. In any event the opinions of co-workers cannot be the basis for an employee’s termination. Personal issues can influence those opinions and should not be given any weight. These witnesses all stated that if they had to work with the grievor they would behave in a professional manner. Their evidence consisted of preferences, not hard and fast refusals to work with him.
55In conclusion the Union submitted that if the Board should find there was just cause, it should substitute a lesser penalty. The grievor has been honest and forthright, is not likely to reoffend because of the counselling and treatment he has received and continues to receive, has worked very hard to understand the effect of his actions on others and has utilized the coping strategies he has been taught.
56In support of its position the Union referred to the following cases: Re Lomak Bulk Carriers Corp. v. Johnston [2009] C.L.A.D. No 302; Re Tenant Hotline and Peters and Gittens (1983), 1983 CanLII 4854 (ON LA), 10 L,A,C, (3d) 130 (MacDowell); Gardiner and Ministry of Correctional Services (March, 1994) GSB # 160/92 (O.Gray); Toronto District School Board and Ontario Secondary School Teacher’s Federation (Moursalien) (2010), 99 L.A.C. (4th) 36 (Albertyn); Ontario Workers’ Compensation Board and C.U.P.E., Local 1750 (M.B.) (1990), 1995 CanLII 18272 (ON GSB), 45 L.A.C. (4th) 257 (G. Simmons); Port Moody and C.U.P.E., Local 825 (1997), 1997 CanLII 22648 (BC LA), 63 L.A.C. (4th) 203 (H. Liang); Re Guitierrez and Ministry of Attorney-General (1891), 1981 CanLII 4382 (ON LA), 29 L.A.C. (2d) 333 (Roberts) and Re Emergency Health Services Commission and C.U.P.E., Local 873 (1988), 1988 CanLII 9289 (BC LA), 35 L.A.C. (3d) 400 (A. Black).
57In reply, the Employer submitted that the Board should not give any weight to the Union’s comments regarding the fact the grievor was convicted of a summary offence and therefore his conduct was not as egregious as other complaints of sexual misconduct. The Board, it was said, should consider that young girls were subjected to the sight of a naked man masturbating in front of them and take into account the seriousness of his actions.
58The Employer submitted that the Union’s argument that upholding this grievance would allow an employer access to an employee’s private life is not true. The right to discipline for off duty conduct relies on an employer satisfying its onus to meet the factors set out in the Millhaven case. In this case there is a causal link between the grievor’s conduct and his position as a peace officer. His actions impugned the position he held. His demeanour at the hearing is significant. He was evasive, dismissive of the Employer’s right to discipline for off duty conduct, and insisted his actions were a momentary lapse of judgment. That is inconsistent with the fact he chose his site with forethought, he engaged in his inappropriate behaviour on numerous occasions and possessed trousers tailored to allow for maximum exposure. With respect to the union’s assertion that the grievor will never re-offend, the Employer asked the Board to read the medical noted from Dr. Belicki and Dr. Dickey carefully. Both state that he is at some risk to reoffend.
59The Employer argued that the Board should prefer the Employer’s witnesses’ evidence over that of the Union witnesses who had not worked with the grievor, did not know the facts of the criminal charges and had not canvassed the views of the grievor’s co-workers. The Board should note that none of his colleagues testified on his behalf.
60The Employer submitted that the Union has relied on the Workers’ Compensation Board and Emergency Services cases (supra), with respect to the damage to the Employer’s reputation, which is no longer good law. Both of them were rejected by Arbitrator Jackson in the OPSEU case (supra). It noted that the Board in the Emergency Services case, the Board stated that the incident was the result of an overly forward and clumsy misinterpretation of courtship which was uncharacteristic and that the grievor was regretful, apologetic and remorseful. That, it was said, is very different from the facts of this case. The grievor knew what he was doing, he acted deliberately and with forethought, was not regretful or apologetic or remorseful.
REASONS FOR DECISION
61The facts giving rise to this grievance are not in dispute. The grievor was observed exposing himself and masturbating on the trails of the Canal Trail system in Welland, Ontario and was arrested and charged with four counts of performing an indecent act. He pled guilty to two counts, was given a conditional discharge and placed on probation for three years. The Employer has taken the position that, even though his misconduct occurred while he was off duty, the nature of the offence and the victims he targeted, coupled with the grievor’s lack of remorse and refusal to accept responsibility for his conduct, satisfy the criteria of the Millhaven case which allows an Employer to consider this off duty conduct as grounds for discipline. The Union and the grievor, on the other hand, take issue with the Employer’s characterization of the facts. They argue that the Employer overreacted to what was a summary offence that was at the low end of a spectrum of offences of a sexual nature and was not serious enough to require jail time.
62Whatever the grievor did, it was not done while he was on duty or acting as a representative of the Ministry. In other words, if the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the Company to show that:
the conduct of the grievor harms the Company’s reputation or produce
the grievor’s behaviour renders the employee unable to perform his duties satisfactorily
the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him
the grievor has been guilty of a serious breach of the Criminal Code thus rendering his conduct injurious to the general reputation of the company and its employees
places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.
63Before applying the facts of this case to these criteria, a review of the case law is helpful. In the Millhaven case (Supra), the grievor had physically attempted to set fire to the houses of two employees who had worked during a strike, conduct the Board found was directly related to his employment. Notwithstanding an employer’s right and duty to protect its employees, the Board recommended that the employer give the grievor another chance, although not necessarily in the same position. It was persuaded that the grievor had learned from his mistake and was genuinely remorseful.
64In the Air Canada case (supra), the grievor was an employee of the airline and was accused of possession of cocaine for the purposes of trafficking. The charges against him were stayed to protect an informant but the Board was satisfied that the grievor had been guilty as charged and upheld the termination. It determined that the link between his conduct and his employment was sufficient to justify termination for his off-duty conduct.
65In the Bell Aliant case the grievor had been arrested for using the company’s computer to communicate with a person believed to be under 13 years of age for the purpose of committing an offence. The Board upheld the discharge, finding that the employer had shown that the actions of the grievor affected its reputation and prejudiced its ability to perform its functions. The Board also noted that the grievor continued to deny the seriousness of his offence and refused to accept the connection between his actions and the employer’s business.
66In the Clinton case, the grievor pled guilty to sexually assaulting a student assigned to the employer on a college placement. The Board was influenced by the fact that this was not the first time the grievor had been disciplined for inappropriate sexual conduct. Since the employer’s business involved caring for disturbed children, the grievor’s conduct was found to have a direct effect on its ability to conduct its business. The Board accepted that the grievor was remorseful but did not believe he understood or appreciated the profound impropriety of his actions.
67In the Jackson decision (OPSEU), the grievor was accused of sexual assault of a minor and of using a Ministry computer to view a large and varied collection of pornography, including child pornography. The grievor faced proceedings in the criminal court, family court and arbitration. The facts of the case were numerous and the testimony of the grievor was criticized by the Board as being incredible and implausible. Dealing solely with the Board’s comments on the imposition of discipline for off-duty conduct, the Board stated, at page 53:
…But arbitrators accept the proposition that, if the misconduct is serious enough or of a particular type that attracts the opprobrium or disgust of the public (or of fellow employees or clients), or an unwillingness to deal with the employee, an employer may discharge such an employee in order to safeguard its reputation and its legitimate business interests, of which reputation is a critical element.
68It then referred to the Millhaven case and stated that if one or more of the factors listed in it is proven, an employer has the right to discipline an employee for all conduct, whether on or off duty. It noted that the range of penalty was widely variant, particularly with respect to the effect on the employer’s reputation and concluded that evidence relevant to the damage to an employer’s reputation would be, by its very nature, indirect and inferential. An arbitrator should have regard to what a well-informed, fair-minded member of the public and other relevant constituencies would think. The Board defined the relevant constituencies as other conservation officers, other employees of the Ministry and members of other law enforcement agencies. It asked what they would have thought about the grievor’s reinstatement. There was no direct evidence before the Board of the views of his co-workers but it noted that during the 24 days of hearing over a two year period no one had appeared to speak on behalf of the grievor and concluded that his co-workers did not see his termination as a grave miscarriage of justice.
69Having considered all the evidence before it, the Board concluded that a fair-minded, well-informed member of the public would look with distaste on what that grievor had done. The Board found that there was no doubt that the grievor’s conduct was inconsistent with the duties, responsibilities and expectations of a Conservation Officer.
70In that case, the grievor had admitted to the sexual assault on a minor child and there were inferences that this was not a onetime aberration; it was suggested he had done this before. What was in evidence was the fact he had been admonished before about inappropriate sexual conduct. The comments about the public’s repugnance and disgust with the grievor’s conduct were in reference to conduct which was clearly at the most extreme end of the spectrum of sexual misconduct. Add to that the extensive and varied collection of pornography, in particular child pornography, and it is understandable that the Board was persuaded that the grievor’s conduct had a significant impact on the employer’s reputation. The Board found the Ministry was reasonable in concluding that a fair-minded and well-informed person would look with distaste on what the grievor had done. It concluded that the public face of the Ministry would be diminished if the public knew it had continued to employ an individual who was guilty of these offences, as would other law enforcement officers and fellow employees. The Board also found it was self-evident that his actions were a serious breach of his duties and responsibilities as a Conservation Officer. The Board upheld the discharge for many reasons, one of which was its view of the public reaction if the grievor were to be reinstated.
71In Amalgamated Transit (Lethbridge) a transit driver’s discharge for trafficking in cannabis was upheld by the Board. In that case, as in the instant case, there was no direct proof of damage to the employer’s business or reputation and the only media report that was generated did not identify the grievor. Nevertheless, the Board was influenced by the public service nature of the employer’s business and the higher standard expected of employees providing that service.
72In the City of Edmonton case (supra), the grievor was a civilian member in the Document Services Unit of the Edmonton Police Services, and was the on-site unit leader with supervisory responsibility over 28 document servers and 8 clerks. He was found guilty of possessing and distributing child pornography and ultimately terminated. At paragraph 59, the Board stated:
Shortly put, we are satisfied that the grievor’s off-duty conduct must be taken as harmful to the reputation of the E.P.S., even his colleagues and subordinates, given the hugely inappropriate nature as understood by society at large. We are satisfied that it rendered him unable to perform his duties satisfactorily on several levels, including the distrust reasonably related in the minds of his E.P.S. superiors as to his reliability and judgement and the glaring unwillingness of his subordinates to accept his direction or supervision. The grievance was dismissed.
73Not surprisingly, the Union provided me with cases that deal with the reinstatement of a grievor who had been disciplined for off-duty conduct. The Toronto District School Board case (supra), has numerous similarities to the one before me. The grievor was a child and youth worker for special education who had been found guilty of sexual assault, tried and was given a conditional discharge and probation. In deciding the appropriate sentence the judge was favourably influenced by the fact he was employed and was concerned about the potential impact of a conviction on his employment. Even though the grievor had lied and behaved disreputably, it noted that the grievor had ten years of employment at the Board and was married to a woman who operated a registered day care from their home. The Court did not place any limitations on his contact with his own children or his spouse’s clients. His sentence and probation were specifically designed to facilitate his return to work at the school board.
74The factor that was the most persuasive to the Judge was the fact that the grievor had medical evidence that stated he was a low risk to repeat his offence. His physician testified that he was no appreciable threat to students, staff and parents, which addressed the employer’s concerns about the sexual integrity of those people.
75With respect to the damage to the employer’s reputation, the Board stated, at para 94:
As regards the alleged damage to the Board’s reputation in continuing to employ the Grievor, the public’s perception is to be judged not on the standard of sensationalism or superficial over-reaction, but on tested and relevant information; what “a fair-minded and well-informed member of the public “..may think ‘of the off-duty conduct”. …This is so even in the context of diminished tolerance for off-duty sexual offences within the school system (as compared to other sectors of employment). On this standard, there is no risk of damage to the Board’s reputation because a fair-minded and well-informed member of the public would recognize on the basis of Dr. Glancy’s evidence, that there is no reasonable likelihood of the grievor posing a risk.
76The Board reinstated the grievor but declined to order any compensation. It found the Board was entitled to suspend the grievor until it was satisfied that he could safely be returned to the workplace.
77From the cases relied on by the parties several principles emerge; each case must be considered on its own facts, if the employer is to be entitled to discipline an employee for off duty conduct it must satisfy at least one of the five factors in the Millhaven case and, even if the employer meets that onus, termination is not the only response.
78The first issue to determine is whether the Employer had a right to discipline the grievor for off-duty conduct with reference to the Millhaven case.
- the conduct of the grievor harms the Company’s reputation or product
79On the facts of the case before me, the grievor’s offences occurred in August of 2008 and his conviction took place early in 2010. He has completed more than 2/3’s of his three year probation without incident. His arrest and conviction never became public except for one comment about it in the local newspaper in which no names were mentioned. It was obvious from the evidence of his co-workers that they did not know the details of his criminal proceedings or the reasons for his discharge. It is not so clear that the Employer’s concerns about its reputation were valid concerns at the time of the incident and, more significantly, at the time of his discharge.
80It is not necessary for the Employer to prove damage to its reputation; it can be inferred from the details of the incident. I am of the view that the grievor’s conduct and subsequent conviction had the potential to have an impact on the Employer’s reputation. He chose an area he knew was near a school and that there would likely encounter young girls. There would have been a negative traction to his conduct which would have attached to the ministry.
81I am not, however, convinced that the reputation of the Ministry was actually prejudiced by the grievor’s conduct, directly or indirectly. The public response would no doubt be unfavourable for the Employer if it had been aware of the grievor’s conviction but it would not have summoned the same visceral reaction as the sexual assault of a minor or the possession of child pornography. If, as the evidence has shown, it was not a subject of gossip in the workplace, it is unlikely the public knew of it and reacted negatively.
- the grievor’s behaviour renders the employee unable to perform his duties satisfactorily
82There is no evidence that the grievor is or will be unable to perform his duties satisfactorily. The Employer has voiced concerns about the effect of his conviction on his relationship with other law enforcement agencies but, except for the Niagara Police Service, there is no evidence any other enforcement officers from any of the agencies TEO’s work with were or are aware of the incident. His position as a TEO carries an expectation of respect for and adherence to the law. His duties as a witness demand he be credible and above reproach. There is no doubt that his ability to perform his duties could have been affected if there had been more publicity or gossip in the workplace. However, that is not the case. He is fortunate that, with the passage of time, the actual impact can be evaluated.
- the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him.
83The Employer called three witnesses to testify about their reluctance to work with the grievor if he were to be reinstated. I accept their evidence over that of the Union’s witnesses because they will be the ones who will be assigned to work with the grievor and their opinions are more relevant. However, that is what they spoke of, opinions and preferences. None of the witnesses said they would not work with the grievor or that they would quit if they were forced to work with him. The Millhaven Board cites a refusal, reluctance or inability to work with the grievor as a factor but an Arbitrator must be careful when evaluating the relevance of this evidence or the weight to give it in the circumstances of the case. It was not particularly forceful and cannot be the basis for the grievor’s termination.
84The Employer’s witnesses expressed their pride in the uniform they wear and their view the grievor had sullied it by his actions. The grievor, if reinstated, he will bear the onus of having to convince his colleagues that he has the same respect and regard for his uniform.
- the grievor has been guilty of a serious breach of the Criminal Code thus rendering his conduct injurious to the general reputation of the company and its employees
85While the grievor was given a conditional discharge, the comments of the Judge are an indication of the seriousness of the charges against him. There were initially four charges but the young victims, students at the Notre Dame School in the area, did not want to testify in court. There was an impact statement from one and the other did not want to talk to the Crown but her mother described the effect of the grievor’s actions on her daughter. The impact statement and the mother’s comments described how the victims were afraid to use the paths specifically and were fearful for their safety generally. The Crown expressed concerns about the fact the grievor had purposely selected an area of the Canal Trails where he knew there would be young women going to and from the school. As well, the Court commented on the fact the recidivism rate for the grievor’s condition is high for relapse and there is uncertainty about when the stressors of work and life will cause a repeat of his conduct.
86While it is true the Court decided that a conditional discharge was appropriate, the terms of the discharge were onerous. The grievor was given three years of probation during which he was required to keep the peace and be of good behaviour, appear before the Court when required, notify his probation officer in advance of any change in address, name or occupation, report to a probation officer as directed, stay off the recreational waterway trails, attend and actively participate in counselling arranged by the probation officer, take a psychiatric evaluation and take any treatment or medication prescribed. He was also warned that any breach of his probation could result in a jail term and that a recurrence would vitiate the discharge.
87I reject the attempts of the grievor and the Union to minimize the significance of the grievor’s conduct. The fact that at least two young women were traumatized is proof that his actions had grave consequences for his victims and should not be trivialized. I do not suggest that his conduct was not improper or that it did not have serious consequences for the young women he targeted, but, on the scale of criminal sanctions, it has been deemed to be a lesser offence. In the cases relied on by the Employer, sexual offences are treated seriously by the Courts. Incidents of sexual assaults, particularly on a minor, and child pornography have been held by the courts and arbitrators as the other extreme of the spectrum and worthy of severe consequences.
- places difficulty in the way of the company properly carrying out its function of efficiently managing its works and efficiently directing its working forces.
88This factor is closely related to the first one; the former deals with the grievor’s ability to perform the duties of his position and the latter deals with the Employer’s ability to carry out its functions. The Employer spoke at length about the collegial and co-operative relationship that exists between other law enforcement agencies and its concerns that its ability to continue that would be prejudiced by the grievor’s actions. Given my earlier comments about the fact that few people even knew about the charges and that there is no criminal record on file, those concerns, while reasonable at the time, have lessened over time.
89Having considered all of the circumstances I find the Employer did have reason to be concerned about the reputation of the Ministry and its ability to carry out its functions. It has satisfied the criteria of the Millhaven case: there was potential damage to the Ministry’s reputation and its ability to work with other law enforcement agencies in the performance of its duties. As well, there is clearly some reluctance on the part of some co-workers about working with the grievor in the future; although it is unclear those views were known at the time of the termination.
90Having decided that the Employer was entitled to discipline the grievor for his off duty conduct, the issue is whether the discipline imposed was appropriate. At the time the decision was made, the Employer knew that the grievor had been convicted of two counts of performing an indecent and was placed on probation for three years. The Employer did not rush to judgment: it placed the grievor on a paid suspension for two years until the criminal proceedings had been concluded. Even after it knew of the sentence, it waited until it had read the transcript before deciding on the appropriate action. Its primary concerns involved the safety of other female employees, the likelihood of a repeat of the offence and the grievor’s refusal to accept responsibility for his conduct and lack of remorse. It concluded that discharge was the correct response.
91I am of the view that there were mitigating factors that weighed in the grievor’s favour and should have been considered by the Employer. The grievor sought medical treatment soon after his arrest and co-operated with two medical practitioners and his probation officer after he had been diagnosed with a medical disorder. The medical reports rated the likelihood of a repetition was moderate to low. Absent the grievor’s efforts to deal with his condition, that would be troubling. But he has worked hard to understand his problem and should be given credit for his efforts. He admitted that he has had thoughts of re-offending but he worked with his probation officer to apply the coping mechanisms he has been taught. I have considered, as did the Board in the Toronto District School Board case, the fact that he has made efforts to understand and manage his condition.
DECISION
92For the reasons set out above, I order the grievor be reinstated to his former position. I find that the Employer did have cause to discipline him for his off-duty conduct and that this conduct involved a serious breach of the Criminal Code. His actions had the potential to unfavourably affect the Ministry’s reputation and its ability to perform its functions. Nevertheless, I have decided to give him another chance to show he understands the inappropriateness of his actions and the consequences if he should repeat them.
93His reinstatement is to be subject to a significant penalty in the form of a lengthy suspension. He was on a paid leave of absence from 2008 to early 2010 while his court proceedings were concluded and his unpaid leave began after his termination in September of 2010. It is not unusual for a Board to reinstate an employee without compensation and I am inclined to do so even though it seems to be an unusually long suspension. In this case the actual loss of income began in September of 2010. While the potential for harm existed at the time, in actual fact it never came to pass. By the time the grievor is reinstated, he will have completed his three year probation without incident. It is this passage of time that has led me to the conclusion that reinstatement is appropriate.
94I remain seized in the event the parties encounter difficulty in implementing the award.
Dated at Toronto this 30th day of January 2013.