GSB#2013-4304

UNION#2014-5112-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Lunario)

Union

• and -

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

Employer

BEFORE

Gordon F. Luborsky

Vice-Chair

FOR THE UNION

Mireille Giroux Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 26, 2014; February 11, March 6, May 28, May 29, and August 11, 2015.

Decision

1The Grievor, Ms. Camila Lunario, was employed as a correctional officer when she was charged on December 15, 2011 with driving her personal vehicle during off-duty hours while having a blood-alcohol content exceeding 80 milligrams of alcohol in 100 milligrams of blood, contrary to sec. 253(1)(b) of the Criminal Code of Canada. Despite the Employer’s policies and “standing orders” requiring timely disclosure of all criminal charges, she didn’t notify her Employer until more than two years later on December 19, 2013 in circumstances described below, and consequently the Grievor’s employment was terminated effective February 5, 2014, after seven years of service.

2While the Union acknowledges the Grievor’s failure to report the criminal charge was a serious breach of policy and thus misconduct for which some discipline was warranted, it nevertheless filed the present grievance dated March 14, 2014 claiming unjust dismissal in violation of articles 2.1 and 21.1 of the collective agreement, and seeking the Grievor’s reinstatement along with “any other considerations, as recommended by the Board”. Article 2.1 (entitled “Management Rights”) provides that the Employer has the right to establish policies and rules, “subject only to the provisions of [the] Collective Agreement” and article 21.1 (entitled “Discipline and Dismissal”) authorizes the Employer to discipline or dismiss employees “for just cause”, but which is “subject to the right of an employee to grieve such action”. The Union argues that dismissal for the Grievor’s misconduct was unjust, or alternatively that this is an appropriate case for the exercise of arbitral discretion to substitute a lesser penalty.

3The parties agreed at the outset of the hearing that the Board was properly constituted and had jurisdiction to determine this dispute. At the first hearing day held on June 26, 2014, the parties discussed their respective allegations in the course of a settlement conference facilitated by the Board with the parties’ consent, but were unable to resolve the dispute. The hearings consequently continued for an additional five days over the ensuing 14 calendar months.

General Background

4The Board heard testimony on behalf of the Union from the Grievor and a fellow correctional officer, Ms. Anvsiya Thanachayan; and the Employer presented evidence from the Director of the Toronto South Detention Centre (“TSDC”), Ms. Rose Buhagiar. The parties also stipulated a number of facts and filed documents on consent. With few exceptions resolved below, the factual background is not in dispute which the Board summarizes as follows.

5The Grievor’s date of birth is April 23, 1983. Soon after graduating from a community college with a degree in social work (directed towards working with youth), the Grievor commenced her training as an unclassified correctional officer at the Ontario Correctional Institute (“OCI”) in Brampton on December 4, 2006, becoming full-time in the Correctional Officer 2 classification (“CO2”) effective June 11, 2007. She transferred to a facility then known as the Mimico Correctional Centre located in Etobicoke in or about December of 2007, where she worked for four years until moving to the Toronto Jail (also referred to as the “Don Jail”) on December 5, 2011, remaining there until December 9, 2013 when she was reassigned to the new Toronto South Detention Centre.

6During the Grievor’s initial training at OIC and thereafter at the beginning of each of her subsequent assignments at Mimico and Toronto Jail, the Grievor was made aware of the Employer’s policy and standing orders (“SO”) concerning the disclosure of criminal charges against a correctional officer. Since these employees are also designated as “peace officers” with statutory powers of arrest, Director Buhagiar explained it was important they immediately report any criminal charge against them so the Employer could assess whether their current assignment(s) placed them in a position of conflict or were incompatible with their duties and responsibilities. There were practical considerations of whether other correctional personnel would be comfortable working with the charged officer, where officers must supervise inmates who might be incarcerated for the same offence(s). There could also be difficulties maintaining order among inmates who might become aware of the criminal charge against a correctional officer responsible for their supervision, particularly in the event the officer attended at court to defend a charge on the day one of the inmates was also in the same court.

7The Employer’s “Institutional Services Policy and Procedures Manual” setting out its policy concerning “Employees Charged with Criminal Offences” in effect from February 2007 to July 2, 2013 (thereafter being immaterially revised), stated in relevant part:

Policy

Correctional Services employees are expected to conduct themselves in a responsible and law-abiding manner, both in the performance of their duties and in their personal lives.

Procedures

The following procedures must be followed when an employee is charged with or found guilty of a criminal offence.

1. The employee, when charged with or found guilty of a criminal offence, must notify the Superintendent in writing without delay and provide the following information:

a. the nature of the offence;

b. whether or not the offence occurred in the course of employment with Correctional Services; and

c. the schedule of any future legal proceedings in the matter.

2. The Superintendent will review the employee’s charge, taking into consideration all available information described in the Guidelines section below, and inform the Regional Director….

While each case must be judged on its own merits, the following courses of action are available to Superintendents:

a. no action;

b. job reassignment within the parameters of the Collective Agreement and/or the Public Service of Ontario Act;

c. leave of absence; or

d. disciplinary action, up to and including dismissal

Guidelines

Decisions involving employees charged with or found guilty of criminal offences will be based on a comprehensive evaluation of all relevant and available information and on the real or potential effect of the charges on Correctional Services’ legitimate and substantial interests. Cases will always be decided individually and on their own merits.

When making decisions, Superintendents will consider the following information where available:

• the nature and seriousness of the criminal charge;

• whether or not the offence occurred in the course of employment;

• any explanation or statement of mitigating factors for the offence provided by the employee;

• whether or not the employee is remanded in custody, sentenced to a custodial term or subject to future legal proceedings;

• the position, duties and responsibilities of the employee and the impact that the criminal charge may have on the employee’s abilities to perform those duties and responsibilities;

• the impact that the criminal charge may have on other employees and on the legitimate and substantial interests of Correctional Services;

• the employment record of the employee; and

• the existence of a prior criminal record of the employee, subject to the provisions of the Ontario Human Rights Code.

8An example of the relevant standing order in effect at the Toronto Jail during the Grievor’s posting to that facility is SO #2.25 dated July 2010, reproduced in part below:

Any employee who is charged with or found guilty of a criminal offence shall notify the Superintendent in writing without delay. The written notice shall include the following information:

a) the nature of the offence;

b) the status of the charge before the courts (e.g. awaiting trial, found guilty, awaiting sentencing, convicted);

c) whether or not the offence occurred in the course of employment with the Ministry; and

d) the dates scheduled for any future legal proceedings.

9The equivalent SO at the TSDC as of November 2013 was substantially the same; except it more explicitly notified officers they were expected to report all criminal charges “within 24 to 48 hours” of the charge; and warned that, “Failure to notify is a breach of Ministry policy and may result in discipline up to and including dismissal.” While the Grievor had not yet reviewed all of the policies and standing orders of TSDC by the time she disclosed her criminal charge to the Employer, the parties agree that was immaterial in present context.

10The Grievor acknowledged she was aware of the relevant policies and SO governing her timely disclosure of all criminal charges, which the Union concedes were reasonable and within the permitted exercise of managerial rights under the collective agreement. The Grievor also confirmed her knowledge of the Employer’s “Statement of Ethical Principles” which among other things obliged her to, “Act with propriety, honesty and fairness in the conduct of one’s duties” and to, “Ensure scrupulous compliance with all regulations, procedures and policies relevant to professional duty”. The Employer does not dispute that correctional officers were not required to report charges under the provincial Highway Traffic Act (“HTA”), when driving their own vehicles outside of working hours.

The Criminal Charge

11The Grievor was 28-years-old on December 15, 2011. While primarily a “social drinker” she admits she had a problem with “binge drinking” on occasion. She testified she had recently broken-up with her live-in boyfriend and was out with friends at “a bar” for the first time since that emotionally distressing event approximately two months earlier. While not planning to consume more than one alcoholic beverage that evening, one drink led to many. The Grievor became intoxicated and drove her vehicle alone intending to go home when at 2:40 a.m. she was stopped by the police who were conducting spot checks just outside of the bar. A subsequent breath sample revealed between 131 and 138 milligrams of alcohol per 100 milligrams of blood in her system, resulting in her being charged under the Criminal Code with “impaired driving”, along with the immediate impounding of her vehicle for seven days and administrative suspension of her driver’s license for three months. To that point the Grievor had a clear criminal record and had never been in trouble with the law.

12The timing of the Grievor’s criminal charge coincided with other tumultuous events in her life. The Grievor had been off work on “stress leave”, which she attributed to unsubstantiated claims of being “harassed” by her supervisors. She had only transferred to the Toronto Jail on December 5, 2011, and hence stated she “didn’t know anyone” at that facility when she was charged with impaired driving ten days later. She testified she was “ashamed and embarrassed” by the criminal charge and was “afraid of everyone finding out”, as she valued her personal privacy which she was concerned would not be respected by management. Moreover, given a supervisor she claimed to have experienced difficulties with also transferred to the Toronto Jail, the Grievor testified she was “skeptical who I could trust” at the facility with the sensitive information of her criminal charge. She nevertheless acknowledged that her concerns were “no excuse” for not immediately reporting the criminal charge to upper management of the Toronto Jail in accordance with the Employer’s policy and SO, who she also agreed had never treated her improperly.

13Instead, she said nothing to management (nor indeed to her own family about the matter for some time), and went about her usual employment duties. He ex-boyfriend drove her to and from work for the three months that her driver’s license was administratively suspended. In consultation with her criminal defence lawyer, the Grievor testified she had reason to hope that her charge might be reduced to “careless driving” under the HTA as a result of negotiations between her counsel and the Crown prosecutor which was not considered a criminal transgression, because she had a clean criminal record and her wrongdoing was a “first offence” that was uncharacteristic behaviour. The docket of the Grievor’s appearances at court on the criminal charge indicates she and/or her lawyer attended before the court on some 16 different occasions (mostly it appears by the lawyer alone consenting to an adjournment of proceedings) between January 10, 2012 and January 10, 2014. With the exception of the last one, none of these attendances was reported to the Employer, in further violation of the Employer’s policy of timely disclosure of all court appearances.

14The Grievor realized she had to make substantial lifestyle changes, and that her criminal charge was a wake-up call for action. Thus the Grievor testified that before she was disciplined by the Employer she had stopped drinking alcohol, coffee and smoking altogether. She commenced attending at her Church on a weekly basis for rehabilitation, and has to the extent possible maintained a regular schedule of Church activities to the date of her testimony. She participated in a treatment program similar to that run by Alcoholics Anonymous through her Church, resolving never to drink again which she testified she has maintained to the present date. She also received counselling through the Employer-sponsored Employee Assistance Program (“EAP”). This testimony was not challenged in cross-examination, although in argument the Employer questioned its veracity because of the lack of any documentary corroboration of the Grievor’s receipt of such assistance. Having been unchallenged and given the consistency of the Grievor’s evidence on these matters throughout her subsequent dealings with the employer (as reviewed below), the Board accepts the Grievor’s testimony on point. The Grievor’s family has helped with her rehabilitation and lifestyle changes, and she has become involved in a steady relationship with a man who is a non-drinker and non-smoker. She repeatedly apologized at the instant arbitration hearing and said she regretted her failure to disclose her criminal charge immediately; stating that she was in denial about her “drinking problem” at the time, and in fact suggested that had she made timely disclosure of the charge the Employer might have helped her get appropriate treatment.

Disclosure of the Criminal Charge

15The Toronto South Detention Centre was built on the site of the former Mimico Correctional Centre and officially opened on January 29, 2014. It is a maximum security facility for up to 1,650 remanded males awaiting trial, along with a medium security building that can house up to 320 male inmates serving weekend or other intermittent sentences.

16The Grievor transferred from the Toronto Jail to the new Toronto South Detention Centre on December 9, 2013 for training in anticipation of its opening. Shortly afterwards, on being advised by her criminal defence lawyer that the criminal charges could not be reduced to “careless driving”, the Grievor decided to plead guilty to the impaired driving offence at her next court appearance scheduled for January 10, 2014. She also decided to inform management of the criminal charge and her impending conviction.

17She accordingly initiated a meeting with the Deputy Superintendent, Staff Services of the TSDC, Ms. Ava-Gail Delattibeaudierre on December 19, 2013 accompanied by a co-worker, Ms. Thanachayan. In describing the purpose of the meeting, both the Grievor and Ms. Thanachayan testified the Grievor was intent on disclosing her impaired driving charge and of seeking a scheduling accommodation. Since the Grievor anticipated her driver’s license would be suspended for upwards of one year as a result of her conviction for impaired driving, the Grievor asked Ms. Thanachayan to live in the Grievor’s house so that Ms. Thanachayan could drive the Grievor into and from work each day. Thus the Grievor wanted to be scheduled on the same shifts as Ms. Thanachayan to accommodate the Grievor’s driving disqualification. There is no dispute that other correctional officers who have been charged with impaired driving do not normally face discipline from the Employer and that the kind of accommodation requested by the Grievor had been granted in the past to similarly situated employees. If her request was not allowed, the Grievor testified she would have made other arrangements to attend work throughout her license suspension, similar to when her driver’s license was administratively suspended for three months immediately after being charged.

18There is however a controversy on whether the main purpose of the Grievor’s meeting with the Deputy Superintendent of Staff Services was to secure an accommodation or to disclose the fact of the criminal charge. The Employer asserts it was the former, thus questioning the Grievor’s sincerity in the matter; while the Grievor maintains an honest desire to make full disclosure of the criminal charge which was now made urgent by her impending conviction and to request a scheduling accommodation. The Board concludes the Grievor could not obtain an accommodation without disclosing the fact of her imminent conviction, and thus whether one or the other was foremost in the Grievor’s mind at the time seems immaterial. Had she wanted to maintain her silence on the matter, the Grievor could have made other arrangements to attend work without the Employer’s involvement and the Employer might never have found out about the Grievor’s criminal charge. It is the undisputed testimony of the Grievor and Ms. Thanachayan that the Grievor was apologetic and contrite at the meeting with the Deputy Superintendent, acknowledging her wrongdoing in not immediately reporting the charge.

19The foregoing conclusion is also consistent with the written record filed before the Board. After receiving guidance from Director Buhagiar on the appropriate action in response to the Grievor’s disclosure, Deputy Superintendent Delattibeaudierre submitted an “Occurrence Report” dated December 23, 2013 which is entitled, “Employee’s disclosure: pending/possible conviction”, wherein she wrote at the outset that, “During the meeting, [the Grievor] disclosed that she had an upcoming court date that could result in a possible conviction”. The report went on to recount the Deputy Superintendent’s advice to the Grievor that, “the matter has to be disclosed to the employer”, and her further instruction that the Grievor prepare “an Occurrence Report regarding the disclosed information”. That initial report mentioned nothing about the Grievor’s accommodation request but rather focused on the fact of the Grievor’s disclosure of the criminal charge and impending conviction.

20In response to the Deputy Superintendent’s direction to prepare an Occurrence Report, the Grievor wrote the following on December 23, 2013 to Director Buhagiar, under the heading, “Disclosure to employer of a possible upcoming conviction”:

On December 2011, in Mississauga, I was pulled over by RIDE program and failed a breathalyzer test. I was later charged with a DUI. I had been going through a lot of stress at work with [supervisor] who I currently have grievances and a [Workplace Discrimination Harassment Policy] with plus also going through a tough break-up. It is now two years later and I have been very stressed going through the motions of not knowing what lies ahead for me. My lawyer was trying this whole time to get the charged dropped to careless driving, and because of that hope but mostly because of the problems I have had with [my supervisor], and now currently and recently being harassed by [another supervisor] (who I also have grievances against) I have been reluctant to disclose this charge. I am very worried that the confidentiality would be broken and it would poison my work environment. I was hoping for the best and that if I would get the careless driving charge I wouldn’t have to, but speaking with Ms. Ava-Gail [Delattibeaudierre] I was informed I should have disclosed my situation as soon as it happened and I apologize for that. My lawyer has told me that January 10^th, 2014 (my court date) that I will be getting my license suspended for 6 months and I will participate in the breathalyzer program. This is originally why I came to speak to Ms. Ava-Gail but also because I knew now that I would be convicted I was definitely going to have to disclose this charge.

I accept full responsibility for my actions and I have faith in God that my consequences are necessary. I have since stopped/quit smoking, drinking, and have seeked help. During those tough times I sought out EAP and will probably contact them again soon. I have also returned to regularly attending Church and have received good counsel there. I have a very good family who through this challenging time have helped me keep my head up and supported me and they are just happy it has changed my life for a positive turn.

As for work, I know this will be tough and I do appreciate the consideration on Ms. Ava-Gail’s part. I apologize again for not disclosing sooner.

21Although referring to grievances filed by the Grievor against the alleged conduct of certain supervisors at the Toronto Jail in her Occurrence Report (related to disciplinary action described below), the Grievor testified she wasn’t blaming anyone for her failure to disclose the criminal charge, but instead took full responsibility in the matter. She testified that references to her supervision at the Toronto Jail were a reflection of “where my mind was” at the time the impaired driving charges where initially laid. In the two years since being charged, the Grievor emphasized that through counselling and positive lifestyle changes she came to realize she was solely responsible and should face appropriate consequences for her misconduct.

Disciplinary Response

22After reviewing the Occurrence Reports prepared by Deputy Superintendent Delattibeaudierre and the Grievor, Director Buhagiar suspended the Grievor (with pay) for five working days pending the outcome of an investigation into the matter. During the 2013 – 2014 Christmas/New Years’ holiday period (while the Grievor was off on vacation leave), the Grievor received text messages from one of her co-workers (which were filed with the Board) indicating there were rumors in the workplace of the Grievor’s suspension even before the Grievor received official notification of her suspension, which was very distressing to the Grievor and seemed confirmatory of her privacy concerns.

23The Grievor subsequently attended an investigation meeting with a Union representative convened by Deputy Superintendent Scott C. Gray, to answer the allegations that: (1) the Grievor “failed to disclose that she had been charged with offences related to impaired driving contrary to Institutional Services Policy and Procedures”; and (2) that she “breached the Employer’s trust by failing to report in a timely manner” contrary to the Employer’s policies and “Statement of Ethical Principles”. The Grievor essentially repeated the information and apology in her Occurrence Report in response to questions raised during the meeting.

24By that time the Grievor had pleaded guilty on January 10 to the charge under sec. 253(1) (b) of the Criminal Code. The transcript of the proceedings before the criminal court indicates the Grievor’s lawyer incorrectly told the court that the Grievor’s employment sanction was limited to a five-day suspension (which by that point had been the only action taken by the Employer pending the outcome of its investigation into the matter). The Grievor testified she didn’t correct her lawyer’s error because she hadn’t been paying close attention; being in a “mental fog” at the time as she was embarrassed and contemplated her uncertain future as a person with a criminal record. She was consequently convicted of the offence, receiving the penalty of a $1,200 fine and was prohibited from driving for 12 months, which was reduced to a six-month disqualification because the Grievor agreed to participate in a program of education and counselling for first-time offenders (referred to as the “back on track” program). She also agreed to equip her personal vehicle with a breathalyzer device preventing its operation if the driver had a blood-alcohol reading above legal limits.

25Thereafter, Director Buhagiar (who did not attend the investigation meeting) concluded from all reports and information available that it was appropriate to terminate the Grievor’s employment for alleged just cause. One of those reports was a file review indicating that the Grievor’s disciplinary record at the time consisted of: (1) “non-disciplinary letter of counsel for reporting late for work and AWOL dated June 19, 2013”, (2) “3-day disciplinary suspension letter for leaving post without permission, failed to sign out in logbook and submitting inaccurate occurrence report dated July 25, 2013”; and (3) “5-day disciplinary suspension letter for AWOL dated September 9, 2013”. On closer inspection, the disciplinary record reveals the Grievor’s three-day suspension was issued because she left her post seven minutes early on June 19, 2013 without signing out and inaccurately stating in her occurrence report that she left at her regular quitting time. The five-day suspension was issued for being absent from work without permission on August 2, 2013 that the Grievor claimed she believed was not a scheduled day of work for her (as she believed she was under suspension), which excuse was not accepted by the Employer.

26In the letter of termination to the Grievor dated February 5, 2014, Director Buhagiar wrote in relevant part:

In response to allegation #1, you readily admitted both in your occurrence report and verbally at the meeting that you were aware of your responsibility and obligation to notify the Superintendent when charged or convicted of an offence, specifically, your charge of “Drive Under the Influence” in December 2011. You were well aware of your obligation and requirement to report the charge, yet failed to do so. In your occurrence report you cited issues with two other staff, neither of whom were the Superintendent, for failing to report your charge. You also wrote that you lacked confidence in the Employer to maintain confidentiality with respect to the charge as a reason for failing in your obligation to report the charge. By your own admission and in reviewing the facts related to this matter, I find that this allegation is substantiated.

In response to allegation #2, you apologized and stated that you should have known better. As you are aware, this matter came to the attention of the Employer in December 2013, two years after you were charged, when you met with the Deputy Superintendent, Staff Services, to request accommodation for a schedule change in anticipation of having your license suspended as a result of the charge. You were clearly aware of your obligation and requirements to report the charge, yet failed to do so for two years, clearly breaching the Employer’s trust. Therefore, I find that this allegation is also substantiated.

In determining the appropriate penalty, I have considered including but not limited to the serious nature of the substantiated allegations and the subsequent findings; the impact on the employment relationship, your length of service, your employment record, the institution’s and ministry’s legitimate business interests and the ongoing efforts to reinforce and maintain employees’ ethical behaviour. I have determined that you will be dismissed for cause from employment in accordance with sections 34 and 35 of the Public Service of Ontario Act, effective immediately.

27Director Buhagiar elaborated in testimony before the Board that the fact the Grievor worked for two years before disclosing her criminal charge was a matter of great concern as it went to the Grievor’s integrity and honesty, which from Ms. Buhagiar’s perspective undermined the essential trust in the Grievor’s ability to fulfil her important employment obligations. Director Buhagiar noted that correctional officers are expected to work with minimal supervision and are responsible for the care and control of inmates in potentially demanding circumstances that might have life or death consequences. The responsibilities of a correctional officer includes the preparation of timely and accurate occurrence reports documenting incidents, which the officer might need to testify about in court or at a coroner’s inquest. They might also be assigned to “escort duty”, which requires the officer to ride with prisoners or to drive the Employer’s vehicles on occasion, where any question about an officer’s qualification to drive would be a legitimate concern of the Employer. For example, Director Buhagiar testified the Employer does not assign employees facing impaired driving charges to operate its vehicles for, among other reasons, insurance restrictions. Although each case is unique and Director Buhagiar agreed that a charged employee is entitled to the presumption of innocence, she also conceded the Employer would not normally have disciplined the Grievor for being charged and convicted with impaired driving had the Grievor reported the charge to the Employer in accordance with policy. But by not disclosing the criminal charge in a timely manner, the Employer was deprived of the ability to make informed decisions about appropriate work assignments for the Grievor. This failure to disclose was more serious employment misconduct than the criminal charge and conviction in itself.

28In Director Buhagiar’s view, fulfilling a correctional officer’s responsibilities required a commitment to ethical behaviour and a high caliber of professionalism. Finding this standard lacking in the Grievor’s case, Director Buhagiar concluded the Grievor’s breach of the Employer’s clear policy and standing order was an “egregious” violation that could not be tolerated, constituting just cause for termination. If the Grievor was willing to maintain her deception in not reporting the criminal charge for so long, Director Buhagiar also concluded the Grievor could not be trusted to faithfully report incidents with inmates under her supervision. Furthermore, Director Buhagiar found the Grievor’s claim of being fearful that the Employer would not maintain the Grievor’s confidentiality as justification for her failure to follow the Employer’s policy, “incredulous”. It seemed more likely the Grievor remained silent in the hope that the criminal charge would be reduced to careless driving under the HTA, in which event Director Buhagiar surmised the Grievor would probably never have reported the charge to the Employer. The Grievor’s late disclosure of her criminal charge had, from Director Buhagiar’s perspective, only came about as a result of the Grievor’s efforts to arrange a scheduling accommodation around the anticipated suspension of her driver’s license, as opposed to a genuine desire to comply with the Employer’s policy and standing order on the mater.

29In considering the appropriateness of discharge for the Grievor’s misconduct, Director Buhagiar testified she knew from the reports placed before her, the Grievor’s length of employment and her past disciplinary record. As noted above, while working at the Toronto Jail the Grievor received a three-day suspension without pay on July 25, 2013 for leaving her post early without permission and submitting an inaccurate occurrence report regarding the time she left work, and on September 9, 2013 she received a five-day disciplinary suspension without pay for being absent without permission on a day she was expected to work (both disciplinary events occurring after her criminal charge). Although initially filing grievances challenging the discipline in both instances, which were scheduled to be heard at the same time as the Grievor’s claim of unjust dismissal, the Grievor withdraw the suspension grievances to concentrate on her claim of unjust dismissal presently before the Board.

30Regardless of the Grievor’s disciplinary record, Director Buhagiar testified in cross-examination that the Employer concluded the Grievor’s dismissal would have been justified even if the Grievor had a clean record, and had been employed for many more than the seven years of the Grievor’s tenure. Director Buhagiar also testified that the Grievor’s claim to have taken steps to rehabilitate her purported alcohol problem in the two years since her criminal charge was not a consideration in determining the proper penalty. Thus Director Buhagiar confirmed that the Grievor’s disciplinary record and her number of years of service were not factors in assessing the appropriate sanction. Rather, having failed to disclose the criminal charge for two years, the Employer concluded that such misconduct in itself had so undermined the Grievor’s position of trust that she could not continue as a correctional officer responsible for the care, control and supervision of an inmate population, with the reasonable confidence of management.

31The Grievor maintained that during the two years following her criminal charge she was unable to perform escort duties because she was without a proper fitting bullet-proof vest required for such duty, which the Employer disputes. However, notwithstanding the contrary documentation filed before the Board indicating that an appropriate vest was ordered for the Grievor (but not yet fitted to her), there is no dispute that the Grievor was never assigned to escort duties or to responsibilities driving an Employer vehicle during the two years under consideration.

32As a result of having a criminal record and with no practical experience outside of being a correctional officer for all of her adult working life to date, the Grievor testified she has been unable to secure alternate work in spite of concerted mitigation efforts since her termination. Her criminal conviction has proven to be an impediment to employment working with youth or in other jobs related to her social work degree. She has consequently been living on savings and borrowed funds, which are running out and she is at risk of losing her own home. About one year after the Grievor’s termination, she became pregnant and is anticipating the birth of her first child on or about November 18, 2015, thus making it more unlikely that the Grievor will find another job in the immediate future.

The Parties’ Arguments

33Mr. Ayers, counsel for the Employer, argued that the instant case goes to the fundamental trust and confidence in the Grievor to fulfill her important employment obligations. As a “peace officer” who is part of and responsible for enforcing the rules of the criminal justice system, a correctional officer is properly held to a high standard of ethical conduct. It was submitted the Grievor knowingly and repeatedly violated that standard when she failed to make timely disclosure of the criminal charge, and then maintained a pattern of deception by remaining silent on the matter over two years of court appearances that she was also obliged to report under the Employer’s policy and standing order. Such deception was so incompatible with the Grievor’s position that her discharge was the only reasonable disciplinary response, according to the Employer. Moreover, given what the Employer referred to as a “code of silence” among the ranks of correctional officers, it submitted the Grievor’s untrustworthiness had reasonably caused the Employer to legitimately question the likelihood of her reporting any misconduct she observed committed by other correctional officers in the workplace, as she was required to do under the Employer’s policies. Considering the Grievor’s relatively short tenure (having committed the initial offence of failing to disclose the criminal charge after only five years of employment), her current disciplinary record of a three-day and five-day suspension on file, and the sheer extent of the two years she kept knowledge of the charge to herself, the Employer submitted discharge was appropriate because any confidence in the Grievor’s honesty and integrity had been irreparably destroyed and the Grievor had disqualified herself of any consideration by the Board for reduction in her penalty. But even if the Board concluded that a reduction in the penalty was appropriate, any reinstatement of the Grievor should not include compensation for her lost employment earnings, according to the Employer. In support of its representations the Employer also referred to Re Government of Province of British Columbia and British Columbia Government Employees Union (Correctional Services Component) (1987), 1987 CanLII 8881 (BC LA), 27 L.A.C. (3d) 311 (Hope)(B.C. Arb.), OPSEU (Beltrano et al) and Ministry of Community Safety and Correctional Services, GSB#2003-3597 (August 11, 2008) (Petryshen) (Ont. Grievance S.B.), R. v. Sammy, [2004] O.J. No. 1850 (Ont. Ct. J.), McKenzie v. Deputy Head (Correctional Service of Canada), [2010] CPSLRB No. 29 (Quigley) (Can. P.S.L.R.B.), Lachapelle v. Treasury Board (Solicitor General Canada – Correctional Service), [1994] CPSSRB No. 69 (Labelle) (Can. P.S.L.R.B.), Lyne Simard v Treasury Board (Solicitor General Canada – Correctional Service), [2003] CPSSRB No. 45 (Tessier) (Can. P.S.L.R.B.), OPSEU (Gillis) and Ministry of Community Safety and Correctional Services, GSB#2003-1520 (May 16, 2008), 172 L.A.C. (4th) 385 (Abramsky) (Ont. Grievance S.B.), OPSEU (Collin) and Ministry of Community Safety and Correctional Services, GSB#1999-0730 (March 30, 2007), 159 L.A.C. (4th) 186 (Harris) (Ont. Grievance S.B.), Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1951] BCJ No. 152 (B.C.C.A.), OPSEU (Horan) and Ministry of Community Safety and Correctional Services, GSB#2001-0670 (October 23, 2002) (Herlich) (Ont. Grievance S.B.), Shaw Cablesystems Ltd. (Fraser Division) v. International Brotherhood of Electrical Workers, Local 213 (Rykes Grievance), [2006] B.C.C.A.A.A. No. 73 (Hall) (B.C. Arb.), Grand & Toy Ltd. v. United Steelworkers of America, Local 9197 (Collicutt Grievance), [2008] O.L.A.A. No. 447, 176 L.A.C. (4th) 289 (Luborsky) (Ont. Arb.), Sheridan Centre Toronto Hotel v. Hotel Employees Restaurant Employees Union, Local 75 (Huggins Grievance), [2003] O.L.A.A. No. 256 (Luborsky) (Ont. Arb.), West Fraser Mill Ltd. v. United Steelworkers of America, Local 10424 (Andreychuck Grievance), [2007] B.C.C.A.A.A. No. 54, 89 C.L.A.S. 17 (Fuller) (B.C. Arb.), OPSEU (Lall) and Ministry of Community and Social Services, GSB#2008-2807 (January 4, 2008) (Petryshen) (Ont. Grievance S.B.), Re DeJong and New Brunswick, 1992 CarswellNat 2557 (McAllister) (Can. Arb.), Re Kamloops (City) and CUPE, Local 900 (Termination), 2014 118 C.L.A.S. 49, 241 L.A.C. (4th) 349 (Nichols) (B.C. Arb.), Hamilton (City) v. CUPE Local 5 (2000), 60 C.L.A.S. 337 (Barrett) (Ont. Arb.), Royal Victoria Hospital v. Ontario Nurses’ Assn. (Dalton Grievance), [2011] O.L.A.A. No. 396, 211 L.A.C. (4th) 363 (Luborsky) (Ont. Arb.), OPSEU (Mehan) and Ministry of Finance, GSB#2004-3113 (December 19, 2006) (Gray) (Ont. Grievance S.B.), OPSEU (Williams) and Ministry of Community Safety and Correctional Services, GSB#2008-1105 (November 8, 2011) (Carrier) (Ont. G.S.B.), Rouge Valley Health System and Ontario Nurses’ Association (Criminal Records Check Grievance), [2015] O.L.A.A. No. 169 (Stout) (Ont. Arb.), OPSEU (Larkin) and Ministry of Correctional Services, GSB#1992-2844 (May 25, 1994) (Verity) (Ont. Grievance S.B.), OPSEU (Khan) and Ministry of Community Safety and Correctional Services, GSB#2010-0606 (April 11, 2012), (Briggs) (Ont. Grievance S.B.), OPSEU (Adam) and Ministry of Community Safety and Correctional Services, GSL#2003-0892 (February 25, 2005) (Herlich) (Ont. Grievance S.B.), Cariboo-Chilctin School District No. 27 v. International Union of Operating Engineers, Local 859, [2004] B.C.C.A.A.A. No. 317 (Hope) (B.C. Arb.), Re Langley (Township) and C.U.P.E. Local 403 (1991), 20 L.A.C. (4th) 246 (McPhillips) (B.C. Arb.), XZ Foods Inc. (Lakeside Packers Operations) v. United Food and Commercial Workers Canada, Local 401 (Keita Grievance), [2011] A.G.A.A. No. 39 (Power) (Alta. Arb.) and Courchesne and Treasury Board (Solicitor General), [1982] C.P.S.S.R.B. No. 119 (Falardeau-Ramsey).

34On behalf of the Union, Ms. Giroux conceded the Grievor engaged in misconduct for which some discipline was appropriate. But as part of the assessment of “just cause”, the Union submitted there is a requirement that “the penalty match the crime”, which it claims was not satisfied in the circumstances of the present case. Rather, arguing that dismissal was disproportionately harsh punishment for the Grievor’s all-too-human failings regarding the disclosure of personally embarrassing events occurring outside of her employment that did not undermine her position in the workplace as a correctional officer, the Union urged the Board to conclude that a lesser penalty was the proper result. However, even if the discharge was one of the disciplinary options available in this case, the Union submitted the Grievor’s apologies, obvious remorse and positive rehabilitation that she completed before any discipline was imposed by the Employer made it appropriate to exercise the Board’s unquestioned discretion to reduce the penalty, which the Union proposed should have been for a suspension of 20 working days without pay that is the maximum suspension permitted under s. 35 of the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sch. A, which was said to be on a progressive line reflecting the seriousness of her misconduct while properly short of the ultimate sanction of dismissal. The Union also relied upon the following authorities: Re Ongwanada and OPSEU, Local 433 (Watson), 2007CarswellOnt10864, 90 C.L.A.S. 233 (MacDowell)(Ont. Arb.), Jalal v. Canada (Treasury Board – Solicitor General – Correctional Services), 1999CarswellNat3354, [1999] C.P.S.S.R.B. No. 52 (Giguère) (Can. P.S.S.R.B.), Perley & Rideau Veterans’ Health Centre v. C.U.P.E., Local 870, 2011 CarswellOnt5949 (O’Neill)(Ont. Arb.), N.S.G.E.U. v. Nova Scotia (Department of Justice), 2003 CarswellNS593, (Kydd)(N.S. Arb) and Fernandes v. Peel Educational & Tutorial Services Ltd., 2014 CarswellOnt15891 (ONSC).

35And in support of their conflicting representations, the parties jointly filed the following cases for the Board’s review: McKinley v. BC Tel, 2001 SCC 38, [2001] S.C.J. No. 40 (S.C.C.), Sysco Food Services of Toronto v. Teamsters, Local 419, 2011 CarswellOnt6954, 210 L.A.C. (4th) 376 (Luborsky)(Ont. Arb.), Sifto Canada Corp. v. C.E.P., Local 16-0, 2010 CarswellOnt9228, 200 L.A.C. (4th) 305 (Luborsky) (Ont. Arb.), Stelco Inc., Hilton Works v. U.S.W.A., Local 1005, 2003 CarswellOnt4919, [2003] O.L.A.A. No. 566 (Luborsky) (Ont. Arb.), Re Ontario (Metrolinx – GO Transit) and ATU, Local 1587 (Savaryn), 2014 CarswellOnt1723 (Ont. Grievance S.B.)(Gray), Re Ontario (Ministry of Transportation) and OPSEU (Richard), 2013 CarswellOnt17393 (Ont. Div. Ct.), Chopra v. Easy Plastic Containers Ltd., 2014 ONSC 3666, 2014 ONSC3666 (Ont. S.C.J.), Phanlouvong v. Northfield Metal Products (1994) Ltd., [2014] O.J. No. 5436 (Ont. S.C.J.), Kim v. International Triathlon Union, 2014CarswellBC3435 (B.C.S.C.) and Re St. James-Assiniboia School Division and St. James-Assiniboia Teachers’ Assn. (MTS) (2014), 244 L.A.C. (4th) 361 (Peltz)(Man. Arb.).

Decision and Reasons

36For the reasons that follow the Board concludes the Grievor’s dismissal was a disproportionate penalty for her admitted misconduct constituting an unjust result, and that the grievance must therefore be allowed, in part, on terms set out below.

37While the Board has carefully read and considered all of the authorities submitted along with the extensive oral representations of the parties, in explaining the Board’s decision it is only necessary to refer to those authorities most relevant to the factual findings in this case, that give rise to the following questions for analysis:

(a) Was discharge within the range of just penalties for the Grievor’s admitted misconduct?

(b) If it was, should the Board nevertheless exercise its discretion to reduce the penalty?

(c) And if it should (or if the Grievor’s dismissal was not a just response to the misconduct), what is the appropriate penalty/remedy in the circumstances of this case?

(a) Was Discharge a Just Penalty for the Grievor’s Misconduct?

38It is conceded the Grievor committed an act of dishonesty by not disclosing her impaired driving charge in a timely manner, which was compounded by every subsequent failure to inform the Employer of the progress of her case through the criminal courts, contrary to the clear and reasonable Employer policies and standing order on the matter. The Grievor acknowledges she knew her obligation to report. While also conceding that some discipline was appropriate for the Grievor’s misconduct, the primary question raised by the Union’s grievance is whether the Grievor’s dismissal was a just penalty. As noted in Sysco Food Services of Toronto, supra, at para. 35 and the commentary cited therein, “there is a notion that in order to satisfy the “just cause” requirement for discipline under a collective agreement, that the “penalty must fit the crime” in the sense of satisfying a test of reasonableness in all of the surrounding circumstances to ensure a sense of proportionality of the specific penalty to the offence, which includes an assessment of the employer’s conduct as well.” The parties’ agreed that if the discharge was found to be unjustly harsh, that the Board had jurisdiction to determine the appropriate sanction for the misconduct. In the Board’s opinion, the evidence as applied to the prevailing legal authorities supports the conclusion that the penalty did not fit the employment misconduct in the circumstances of the instant case, constituting an unjust result that was contrary to the “just cause” requirement in article 21.1 of the collective agreement.

39Trust in an employee’s honesty is generally accepted as an important element in a viable employment relationship. But whether or not an act or acts of dishonesty justify the summary termination of employment instead of lesser punishment depends upon a number of factors including the nature of the dishonesty, implications to the employer’s legitimate business interests and the employment context in which the deception occurs. In considering the circumstances under which an employer would be justified in summarily dismissing an employee as a result of dishonest conduct under common law employment principles, the Supreme Court of Canada held in McKinley v. BC Tel, supra, that not every act of dishonesty justifies the most extreme disciplinary response of termination, when properly balanced against the importance of the employment relationship to the employee’s economic well-being and emotional self-worth. Rather, on behalf of a unanimous panel of the Supreme Court of Canada, Iacobucci, J. stated at para. 48 that, “whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown of the employment relationship.” He elaborated on the proper considerations by the trier of fact in making that assessment as follows at paras. 53 – 54 and 56 – 57, which have equal application to the case presently before the Board:

53 Underlying the approach I propose is the principle of proportionality. An effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed. The importance of this balance is better understood by considering the sense of identity and self-worth individuals frequently derive from their employment, a concept that was explored in Reference re Public Service Employee Relations Act (Alberta), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313 (S.C.C.), where Dickson C.J. (writing in dissent) stated at p. 368:

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

This passage was subsequently cited with approval by this Court in Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986 (S.C.C.), at p. 1002, and in Wallace, supra, at para. 95. In Wallace, the majority added to this notion by stating that not only is work itself fundamental to an individual’s identity, but “the manner in which employment can be terminated is equally important”.

54 Given the recognition of the integral nature of work to the lives and identities of individuals in our society, care must be taken in fashioning rules and principles of law which would enable the employment relationship to be terminated without notice. The importance of this is understood by the power imbalance that this Court has recognized as ingrained in most facets of the employment relationship. In Wallace, both the majority and the dissenting opinions recognized that such relationships are typically characterized by unequal bargaining power, which places employees in a vulnerable position vis-à-vis their employers. It was further acknowledged that such vulnerability remains in place, and becomes especially acute, at the time of dismissal.

56 Absent an analysis of the surrounding circumstances of the alleged misconduct, its level of seriousness, and the extent to which it impacted upon the employment relationship, dismissal on a ground as morally disreputable as “dishonesty” might well have an overly harsh and far-reaching impact for employees. …

57 Based on the foregoing considerations, I favour an analytical framework that examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship. Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause.

40Applying the foregoing principles in the case of Dowling v. Ontario (Workplace Safety and Insurance Board), 2004 CanLII 43692 (ON CA), which is referred to in Chopra v. Easy Plastic Containers Ltd., supra, at para. 94, the Ontario Court of Appeal has characterized the “core question” or “standard” in determining whether discharge for employee dishonesty is a just result and the proper application of that standard, as follows at paras. 49 – 50:

49 Following McKinley, it can be seen that the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanction imposed for misconduct is to be proportional -- dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship. This is a factual inquiry to be determined by a contextual examination of the nature and circumstances of the misconduct.

50 Application of the standard consists of:

1. determining the nature and extent of the misconduct;

2. considering the surrounding circumstances; and,

3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).

41These principles have also been applied by labour arbitrators in deciding similar disputes concerning the justness of dismissal for dishonesty in employment relationships governed by a collective agreement. For example, in OPSEU, Loc. 433 and Ongwanada, supra, where an employee with some 10 years of service challenged her dismissal for acknowledged misuse of the employer’s gasoline credit cards on five separate occasions, Arbitrator MacDowell reinstated the employee with the substitution of a lengthy suspension without pay. In doing so the arbitrator applied McKinley, supra, in the context of a collective bargaining relationship that includes well-established notions of “progressive discipline” and a “corrective” approach as an alternative to dismissal in appropriate circumstances reflecting a fitting proportional response to misconduct, as follows at paras. 69 – 70:

69 Dishonesty is undoubtedly a serious “employment offence” which often (and rightly) leads to the termination of a worker’s employment. However that outcome is neither so common, nor so automatic as it once was. Nor is this more nuanced approach confined to the world of labour arbitration; because one sees the same sentiment endorsed in cases such as McKinley v. B.C. Telephone, [2001] S.C.R. 161 – where the Supreme Court of Canada held that each case must be considered on its own facts; and that there was no “rule of law” to the effect that theft or dishonesty will automatically supply “just cause” for termination.

70 The point is: it is necessary to carefully weigh the facts of each case – including the business context, the seriousness of the employee’s dishonesty and the employer’s need for general or specific deterrence – in order to see whether the situation is reconcilable with sustaining the employment relationship. It is also necessary to consider whether an employee has “learned his lesson”, and whether a penalty short of discharge, will reflect – and effect – an appropriate balance of the competing interests involved. Because there is a spectrum of responses available to the employer and to the arbitrator; and before selecting “discharge” – “industrial capital punishment” as it were – it is necessary to consider the context and the utility of any alternative penalty.

42Following the foregoing authorities, the Board has accordingly adopted a three-step analysis in considering the appropriateness of the penalty of dismissal for the Grievor’s dishonest conduct in the instant case requiring the Employer to satisfy an onus to demonstrate: (i) that given the specific nature and extent of the dishonesty in the context of all properly considered surrounding circumstances; (ii) the Grievor’s continued employment is incompatible with “the core of the employment relationship”, thus (iii) rendering dismissal an appropriate “proportional response” to the dishonesty instead of a lesser penalty available under a collective bargaining regime, in order to satisfy the test of just cause.

(i) “…whether the nature and extent of the misconduct”

43In first considering the nature and extent of the misconduct the Board notes the Employer’s acknowledgement that the underlying criminal charge would not have resulted in any discipline to the Grievor, had it been disclosed in accordance with the Employer’s policies and standing order. The facts before the Board in the instant case are consequently distinguishable from those in Re Ontario (Ministry of Transportation) and OPSEU (Richard), supra, where the Ontario Divisional Court upheld the discharge of a grievor employed as a Transportation Enforcement Officer that was also designated as a “peace officer” position with statutory powers to issue tickets and of arrest, who was convicted on two counts of performing an indecent act (namely, exposing himself and masturbating in the vicinity of two young females), primarily because such off-duty misconduct was adjudged so harmful to the reputation and confidence of the public in the important functions of the employer that it rendered the continuing employment relationship untenable. (See the discussion of the factors normally considered in determining whether an employee’s off-duty conduct is proper cause for discipline by an employer in Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670 (Mattis Grievance), [1967] O.L.A.A. No. 4 (Anderson) at para. 20).

44By contrast, as much as impaired driving is a serious scourge responsible for senseless death, injury and property destruction, which both the Grievor and her Union properly condemn (as does the Employer), there is no suggestion that a single charge of impaired driving which arose out of the Grievor’s uncharacteristic behaviour outside of the workplace and did not cause injury or damage to property, materially eroded the Employer’s reputation or the public’s confidence in the Employer’s important function; nor is there any evidence to suggest the single criminal charge itself compromised the Grievor’s ability to perform her essential duties as a correctional officer to the appropriate standard or caused other correctional officers to refuse to work with her as a result of the criminal charge, all of which are circumstances that, under the factors enumerated in the Millhaven Fibres decision, supra, may justify termination in appropriate cases, but which are not present in the instant case.

45While the Employer has pointed to the possibility of assigning the Grievor to escort duty where she might have been required to drive one of the Employer’s vehicles contrary to the Employer’s insurance restrictions, the evidence is conclusive that the Grievor was never assigned such work after being criminally charged. It was also clear from Director Buhagiar’s testimony that other correctional officers have been charged with impaired driving in the past and their employment continued with scheduling accommodations that did not undermine their effectiveness as correctional officers or the public’s confidence in them. Absent the Grievor’s failure to report the criminal charge in violation of the Employer’s policy, the evidence supports the conclusion that she would have likely been treated in the same manner; namely, with the possible exception of escort duty restrictions, her work assignments and responsibilities would not have changed.

46It was the Grievor’s failure to make timely disclosure of the criminal charge, in violation of the employment policies and standing order that constitutes the employment offence in this case. While this was a serious dereliction of the Grievor’s obligations, it was a failure to report on conduct occurring entirely outside of the workplace in the course of the Grievor’s private life, which was a source of obvious embarrassment and personal shame. It was not directly related to the performance of her duties as a correctional officer, and only indirectly in the sense that there was a chance of contact between the Grievor and one of the inmates under her care during proceedings before the same criminal court, which there is no evidence to suggest ever occurred. Nonetheless, because of the extent of the delay in reporting the charge, Director Buhagiar concluded the Grievor could no longer be trusted to fulfill her obligations as a correctional officer in the workplace; and in particular to accurately report on essential matters related to the care, custody and control of inmates under the Grievor’s supervision. While that is an understandable personal sentiment, the question the Board must determine is whether it was an appropriate leap that is supported by the evidence in this case?

(ii) “…is incompatible with the core of the employment relationship”

47In answering that question, the McKinley and Dowling decisions, supra, direct the Board to the second phase of the proper analysis in cases of dishonest conduct by considering the context in which the misconduct occurred relevant to the determination of whether it so undermined or struck at the “core” of the contractual relationship to reasonably render the Grievor’s continuing employment untenable. In this regard, the Board accepts the many court and arbitral authorities submitted by the Employer reinforcing the importance of trust in the dealings between a correctional officer and the Employer, and the serious consequences to the employment relationship that properly results when the correctional officer violates that trust. However the cases submitted to the Board by the Employer, particularly between these same parties, are factually distinguishable as most are concerned with lies or deceptions (by actions or omissions) of correctional officers committed in their direct dealings with inmates and/or other correctional staff in the workplace that go to the root of the employment relationship and reasonably undermine any likelihood of rehabilitation. See, for example, OPSEU (Beltrano et al) and Ministry of Community Safety and Correctional Services, supra, OPSEU (Gillis et al) and Ministry of Community Safety and Correctional Services, supra, OPSEU (Collin) and Ministry of Community Safety and Correctional Services, supra, and OPSEU (Horan) and Ministry of Community Safety and Correctional Services, supra, where the dismissals of correctional officers were upheld by the Board for physical assaults that they committed on inmates under their supervision in the workplace, and then for lying or invoking the “code of silence” and filing false occurrence reports in connection with these matters.

48Somewhat closer to the factual circumstances of the instant case in that the correctional officer’s dismissal resulted from conduct outside of the workplace, is OPSEU (Williams) and Ministry of Community Safety and Correctional Services, supra, where a correctional officer with 20 years of service failed to report his arrest to the Employer (on two occasions) and incarceration on criminal charges that included harassment and threats of physical violence to the grievor’s ex-wife, and an assault on police that occurred after a high-speed car chase with an attempt by the grievor to strike a police officer with his vehicle (and the requirement of police officers to use Tasers to control the grievor before he could be forced into the back of a police car during his arrest). While the Board noted at para. 3 in its decision that the grievor’s inappropriate response to his personal problems including the harassment of his ex-wife might not have justified his termination, insofar as the improper conduct included assaulting police, the Board concluded at para. 15 that as a peace officer the grievor’s “conduct was inconsistent with his duties and put him in a conflict of interest with the very Office he was engaged to represent”, thus justifying his dismissal.

49In another grievance challenging the dismissal of a correctional officer for off-duty misconduct, the Board upheld the dismissal in the case of OPSEU (Khan) and Ministry of Community Safety and Correctional Services, supra, where the correctional officer was found to have been involved in a personal and business relationship with an ex-offender that she didn’t inform the Employer about in violation of the Employer’s policy and standing order regarding such relationships. In those circumstances the Board concluded the grievor’s failure to report the personal and business relationship contrary to the Employer’s policy on the matter placed her in a position of potential conflict with her responsibilities as a correctional officer, which went to the very heart of the employment contract. That outcome was consistent with the Board’s conclusions in the earlier case of OPSEU (Larkin) and Ministry of Correctional Services, supra, where the dismissal of an unclassified correctional officer was upheld when she failed to disclose a personal relationship with a male inmate who was incarcerated in a federal penitentiary, thus justifying the Employer’s concern that such unreported relationships created either the public perception or the reality of a conflict of interest within the workplace that was fundamentally inconsistent with the employment contract.

50In all of the foregoing decisions relied upon by the Employer, whether the dishonesty of the correctional officer occurred in connection with acts or omissions in the workplace itself, or with failure to report on the correctional officer’s off-duty misconduct that actually or perceptually conflicted with the duties of the correctional officer to the Employer and thus the public’s confidence in the correctional institution, the Board upheld the dismissal of the officer as a just result because the misconduct at its base was found to undermine the essential contractual relationship. A different result seems to follow, however, where the off-duty conduct does not in itself strike at the core of the contractual relationship between the parties. An example and more apt authority in that regard is the decision of Jalal v. Canada (Treasury Board – Solicitor General – Correctional Service), supra, for its closeness to the factual circumstances of the instant case, from which the Board has taken general guidance.

51The grievor in Jalal was a correctional officer with 10 years of service at a federal institution in Quebec who was charged with stealing plumbing items (having an approximate value of $34.01), which he pleaded not guilty to, and which he failed to report to his employer before resuming his duties contrary to policies similar in the instant case requiring timely disclosure, but rather the employer was informed of the charges by the local police several days afterwards and the grievor refused to admit his mistake. The grievor was consequently dismissed by the employer for the off-duty misconduct and the grievor’s failure to advise his supervisor of the charge before resuming his duties, which the employer described as “incompatible with [the grievor’s] role as a peace officer” that was claimed to result in complete loss of the employer’s trust in the correctional officer. Although the grievor was subsequently acquitted of the criminal charge, the Canada Public Service Staff Relations Board (“C.P.S.S.R.B.”) found that the grievor in fact committed the theft (although without premeditation) and failed to make timely disclosure of the charge to his employer contrary to the employer’s “Code of Discipline” which the C.P.S.S.R.B. also found the grievor was reasonably aware of at the time. Nevertheless, the discharge was held to be unjust as a disproportionate penalty in the circumstances and the grievor was reinstated with the substitution of a 20-month disciplinary suspension without pay for his misconduct. The following comments by the C.P.S.S.R.B. at paras. 121 – 122 and 125 are most relevant to the considerations before the Board in the instant case:

121 I believe that the fact that Mr. Jalal was the subject of criminal charges, that he failed to advise his employer and that he did not admit to his mistake affected the trust that the employer had in him. It is reasonable to think that, in a prison, this bond of trust is especially important and that any relatively serious damage to that bond of trust is detrimental to the employer’s interests. However, to assess whether the seriousness of Mr. Jalal’s offence irreparably damaged the trust that could be placed in him, it is necessary to analyse all of the circumstances of the case. Thus, in Moncton (City) v. C.U.P.E., Local 51 (1990), 1990 CanLII 12725 (NB LA), 10 L.A.C. (4th) 226 (N.B. Arb.), the arbitration board wrote at page 230:

[…]Just as it is not sufficient for an employee to exonerate himself by freely admitting his theft when confronted, it is also not enough for an employer to simply say that the bond of trust is broken. That statement must be reasonable in the circumstances and the circumstances must be such that it would be reasonable to conclude that an employee could not be trusted in the future.[…]

122 First of all, in the instant case, I am of the view that it is especially important for the bond of trust that the theft was not committed in the workplace. Indeed, authors D’Aoust, Leclerc and Trudeau state the following in note 925 at page 348 of their work, Les mesures disciplinaires: étude jurisprudentielle et doctrinale (supra): [Translation] “In terms of the continuation of the employment relationship, it is more serious to steal from the employer […] than from a third party, outside the hours of work and away from the workplace.”

125 Accordingly, I am convinced that Mr. Jalal’s act was an isolated one which, while being serious in nature, was the result more of an error in judgment than a lack of integrity that would make it impossible to preserve the bond of trust necessary to the employment relationship. I find that the employer’s statement that the bond of trust has been irreparably broken is not reasonable in the circumstances and that the evidence reasonably shows that, in future, Mr. Jalal could be worthy of trust.

52Therefore following the foregoing considerations in the similar factual circumstances before this Board, although the Board has considerable respect for the opinion of Director Buhagiar whose honest opinion must be accorded significant weight, echoing the commentary from Moncton (City) and C.U.P.E., Local 51, reviewed in the above quotation, the Board nevertheless finds it insufficient for the Employer to simply say that as a result of the Grievor’s failure to disclose a criminal charge for two years concerning an offence which would not in itself attract any employment sanctions in the context of this workplace, that it was reasonable for the Employer to determine on the totality of the evidence that the Grievor could not be trusted in the future to perform her fundamental employment obligations over the proper care, custody and control of the inmates under her supervision.

53Rather the evidence before the Employer and this Board supports the conclusion that the Grievor committed an error in judgment which, while serious, was an isolated one in the sense of pertaining to her understandable embarrassment and feelings of shame over a single incident of uncharacteristic misconduct in her personal life that she improperly held to in the hope of negotiating a reduction in the charge until it was clear to the Grievor that she would be convicted. The Board finds on the evidence that the Grievor was reasonably concerned that disclosure of her criminal charge to her Employer (while the Grievor’s legal counsel was negotiating with the Crown for a reduction to “careless driving” under a non-criminal statute), would become known to the general population of correctional officers who were the Grievor’s peers, and from which she would suffer a loss of personal reputation, which was reasonably important to her.

54Indeed, as noted in the quotation cited above from the case of Sysco Food Services of Toronto, supra, the determination of the appropriateness of a particular penalty includes an examination of an employer’s conduct in the context of the employment relationship as a whole. In the instant case, while one can ascribe no bad faith motives on the Employer, it is apparent from the evidence that knowledge of the Grievor’s suspension became known by other employees in the workplace before the Grievor received notification of her five-day suspension with pay pending the investigation of her failure to make timely disclosure of the criminal charges related to her off-duty conduct. For the Employer to reasonably require its employees to make timely disclosure of all criminal charges related to an employee’s personal life that have little if any impact on the actual employment relationship itself, the Employer must also take appropriate steps to ensure the security of such sensitive information; particularly where it is a fundamental tenet of our criminal justice system that the Grievor be accorded the presumption of innocence. Given the evidence of an obvious leak of information to the general workplace of the Grievor’s suspension, the Grievor’s reluctance to disclose the criminal charge at issue in the present case is demonstrably understandable, even accepting that her action was contrary to the Employer’s practices that must attract a proportional disciplinary response.

55In the Board’s assessment as part of the second phase in the analysis required by the McKinley and Dowling cases reviewed above, in determining whether the dishonesty at issue so undermined the foundation of the employment relationship to render it unlikely that any rehabilitation was possible, the Grievor’s conduct after being criminally charged is also relevant, which the facts show was given no consideration by the Employer. In the instant case the evidence is conclusive that once the Grievor learned that her criminal defence lawyer was unable to have the criminal charge reduced and that she would consequently be pleading guilty to the criminal offence, she was determined to disclose the matter to the Employer. While the timing of the disclosure was in breach of the Employer’s policy and standing, the fact that she came forward on her own while the Employer was and had been unaware of the criminal charge for two years, speaks to the Grievor’s fundamental integrity. While being wrong in not disclosing the charge immediately as required and failing to make ongoing disclosure of the progress of her case through the criminal justice system, the action of coming forward where there is no evidence that the Employer ever suspected or had any likelihood of discovering the criminal charge and conviction, was one of the factors that if properly considered by the Employer at the time, would have reasonably addressed some of the Employer’s reservations about its trust in the Grievor to fulfill her fundamental employment obligations in the future.

56Consequently, like the conclusion at para. 125 of the Jalal case, the Board finds the Employer’s statement that the bond of trust with the Grievor had been irreparably broken because of her failure to make earlier disclosure of her criminal charge was not reasonable in context and in all of the circumstances of the instant case. Rather, it is the Board’s opinion that the nature and extent of the Grievor’s breach of policy in the context of the workplace and the totality of her conduct after being charged with the criminal offence was not incompatible with the core of the Grievor’s employment, and thus the Grievor could be worthy of continuing trust to perform her essential employment duties as a correctional officer over the proper care, custody and control of inmates under her supervision.

(iii) “…thus rendering dismissal a proportional response.”

57All of which forms the basis of the final assessment required under the McKinley and Dowling line of analysis of whether the Grievor’s dismissal was an appropriate proportional response to the dishonesty, which the Employer also has the onus to satisfy in this case on the evidence submitted. It is the Board’s opinion that the Employer has failed on this ground as well to support the dismissal on the just cause standard required under the collective agreement.

58Rather, in deciding whether the Grievor’s dismissal was a proportional response to her dishonesty the Board adopts the approach taken by Arbitrator MacDowell at para. 70 in OPSEU, Loc. 433 and Ongwanada, supra, which notes that where the evidence supports a finding that the employee has “learned [her] lesson” it is necessary to consider “whether a penalty short of discharge, will reflect – and effect – an appropriate balance of the competing interests involved […and…] to consider the context and the utility of any alternative penalty.” Since Director Buhagiar candidly conceded the Grievor’s disciplinary record and the number of years of service had no bearing on the Employer’s decision, it cannot be said nor did the Employer claim the Grievor’s employment was terminated for a breach of policy that was the culminating incident in a poor disciplinary record of a relatively short-service employee. Instead the Employer was steadfast in its opinion that the Grievor’s dismissal was warranted solely by the extent of the delay in disclosing the fact of her criminal charge without reference to the many contextual circumstances reviewed above; nor was there any evidence to suggest the Employer gave any consideration to a penalty less than dismissal for the Grievor’s transgression in balancing the respective interests of the parties that would serve to both correct the misconduct while having an appropriate deterrent value.

59Where the Board has already found that the Grievor’s failure to follow the Employer’s policy and SO at issue was not incompatible with the core of the employment relationship, the Board must conclude that like the situation in the Jalal award, the Employer’s decision to terminate the Grievor’s employment was disproportionately harsh in all of the circumstances of the present case, thus constituting a violation of the just cause standard under the collective agreement, with the result that the Union’s grievance must be allowed.

(b) Should the Board Exercise its Discretion to Reduce the Penalty?

60In view of the foregoing conclusion that the Grievor’s dismissal was not within the range of reasonable employment sanctions for the Grievor’s misconduct in the circumstances, it is not necessary to consider the parties’ alternative arguments on whether this is an appropriate case to exercise arbitral discretion to substitute a more appropriate disciplinary penalty that seems “just and reasonable” in accordance with the Board’s jurisdiction to apply sec. 48 (17) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended, with certain exceptions not relevant in the present case.

(c) What is the Appropriate Penalty/Remedy?

61This nevertheless leaves for assessment the parties’ final submissions on the appropriate disciplinary penalty and remedy in the circumstances given the Grievor’s admitted misconduct, where the Union accepts that some discipline short of dismissal was warranted. Both parties agree that a maximum disciplinary suspension of 20 working days without pay is permitted under s. 35 of the Public Service of Ontario Act, 2006, supra, for employees in the Grievor’s position: see the discussion in Hadwin, Timothy, David Strang, Leonard Marvy and Don Eady, Ontario Public Service Employment & Labour Law (Toronto: Irwin Law Inc., 2005). Both parties also agree that within those statutory bounds the Board has jurisdiction to determine the appropriate penalty on a “just and reasonable” standard, which includes the authority to order the Grievor’s reinstatement with full, partial or no compensation for the loss of employment since her termination to appropriately reflect the gravity of the misconduct: see Ontario (Metrolinx – GO Transit) and ATU, Local 1587, supra, at para. 94.

62The Union has proposed a 20 working day suspension without pay as the proper penalty in this case that is said to reflect the seriousness of the Grievor’s misconduct while short of the ultimate sanction of dismissal, with the remedy of full compensation for the Grievor’s lost employment earnings and benefits thereafter. The Employer opposes that result, arguing that if the Grievor is reinstated she should not receive any monetary compensation from her termination on February 5, 2014 until reinstatement to reflect her own accountability for the significant misconduct in this case.

63The Board accepts the Union’s submission that the Grievor should receive the maximum permitted 20 working day disciplinary suspension without pay as discipline to reflect the seriousness of her breach of the Employer’s policy and standing order, which is to be entered on her employment record. But it is sympathetic to the Employer’s argument that full compensation thereafter is unreasonable given the extent of the Grievor’s failure to properly inform the Employer of her criminal charge.

64In deciding where to draw the line in fashioning the appropriate remedy in this case on some principled basis, the Board notes that its aim is to commence hearing a grievance as soon as possible following the submission of the dispute to the Board. The parties are expected to have exchanged relevant documents and particulars (if required) by the first hearing date and, where appropriate, the Board’s practice has been to use that first hearing day as an opportunity for the parties to participate in fulsome discussions between counsel and/or senior representatives of both parties responsible for carriage of the grievance, along with the assistance of the presiding Vice Chair of the Board, in order to realistically assess each party’s case and explore the prospects of resolution.

65The parties engaged in that process on June 26, 2014, which was approximately 20 weeks after the Grievor’s termination, and the hearing proceeded thereafter with full knowledge of the case that each party had to meet and a realistic appreciation of the risks involved for both sides. That 20-week measure also seems in the Board’s opinion to coincide with the appropriate period of disqualification for the awarding of any monetary compensation for the Grievor on a “just and reasonable” standard to reflect the seriousness of her misconduct that proportionately balances its corrective intent with a fitting deterrent value, while at the same time having given the Employer the opportunity to limit its potential damages in this case. Thus in fashioning an appropriate remedy, the Board concludes that along with the 20 working day disciplinary penalty without pay on the Grievor’s record, remedial compensation is to be withheld until the Grievor’s first normally scheduled working day after June 26, 2014 to her reinstatement date.

Disposition

66The grievance is accordingly allowed in part.

67For the reasons set out above the Grievor’s penalty is hereby reduced to a 20 working day disciplinary suspension without pay, and she is notionally reinstated without loss of seniority but with remedial compensation for lost wages and benefits calculated for the period commencing immediately after the first hearing day in this matter held on June 26, 2014 until the date of reinstatement; her disciplinary record amended accordingly. She is to be returned to active service as soon as possible.

68The Board shall remain seized to determine the appropriate remedial compensation to the Grievor if the parties are unable to resolve the matter themselves.