GSB# 2019-1058

UNION# 2019-0737-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sherlock)

Union

• and -

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

Employer

BEFORE

David R. Williamson

Arbitrator

FOR THE UNION

Manprit Singh Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

July 9, July 10, 2020, and March 11, 2021

DECISION

1By way of a grievance dated June 25, 2019, Mr. Steve Sherlock grieves that on June 24, 2019, he was unjustly terminated from his employment as a Correctional Officer (CO 1) at the Thunder Bay Jail. Mr. Sherlock was hired to start work at the jail on June 10, 2019 on a six month fixed term contract following his successful completion from the eight week Correctional Officer Training and Assessment (COTA) Program from which he graduated as Class Valedictorian on June 7, 2019.

2Prior to going on the COTA Program Mr. Sherlock had worked for ten years as a police constable in Indigenous policing with the Nishnawbe Aski Police Service (NAPS), serving rural communities in Northern Ontario. He testified that he was involved in a three year long and acrimonious court case involving access to his son and decided to leave NAPS as he wanted to spend more time with his son than he could with his work in NAPS which took him away from the area for several weeks at a time. He said he knows a lot of CO’s and the nature of their work and believed that his being in town would provide more stability for his son.

3Mel Happonen was the Superintendent of the Thunder Bay Jail at the time of Mr. Sherlock’s hiring and termination. Mr. Happonen testified that Mr. Sherlock attended for work at the Jail on Monday, June 10, 2019, and was then off work on unpaid sick leave from June 11 to June 18, 2019 inclusive. It is the evidence of Mr. Happonen that on June 12 it was brought to his attention that a reference provided by Mr. Sherlock from a Mr. Storkson at NAPS was not from Mr. Sherlock’s direct Supervisor as required and claimed. Mr. Happonen testified he followed up on this by checking with a Mr. Brad Duce at the Inspector level in NAPS who told Mr. Happonen that he, Mr. Duce, had been the direct Supervisor of Mr. Sherlock. Mr. Happonen said in evidence that he had no reason to doubt what Mr. Duce told him. As such, Mr. Happonen became concerned with Mr. Sherlock’s apparent lack of honesty in this matter. Mr. Happonen did not speak with Mr. Storkson on this, and Mr. Duce was not called to testify.

4Mr. Happonen testified that a few days later on June 14 it was brought to his attention that Mr. Sherlock had a Court appearance that day, a day for which the Grievor had claimed he was too sick to work, in order to address charges laid March 28, 2019 of criminal harassment and disobeying a court order. Mr. Sherlock had not informed the Employer that he had been charged with any criminal offences. Indeed, on April 4, 2019 the Grievor had signed a form entitled ‘Employment Security Screening Declaration’ affirming, among other things, that he had not been charged with any criminal offence. This was in fact an incorrect statement made before an offer of employment at the Thunder Bay Jail was extended to Mr. Sherlock.

5Arising out of the foregoing, on June 19, 2019, Mr. Sherlock was suspended without pay pending investigation, and on June 20, 2019, he attended an Allegation Meeting with Union Representation where the concerns pertaining to his criminal charges and the source of his reference from NAPS were put to him by Mark Barstead, Deputy of Operations, with Mr. Kevin Holmquist, Deputy of Administration also present. In this meeting Mr. Sherlock asserted the reference he provided did come from his direct supervisor who was working in an acting manager role, and unhesitatingly offered that he made a poor choice in saying he had not been charged with any criminal offence when in fact he had. On June 24, 2019 Mr. Happonen notified Mr. Sherlock in writing that based on the evidence available to him and the Grievor’s responses at the allegation meeting, he considered the allegations to be substantiated and that as a result of this dishonesty Mr. Sherlock had irreparably breached the trust the Employer had in him and that he had damaged the employment relationship beyond repair. Mr. Sherlock was terminated from employment effective immediately. On June 25, 2019, Mr. Sherlock filed the instant grievance.

6At the arbitration hearing Mr. Happonen testified that he was the person who made the decision to terminate Mr. Sherlock. What concerned him, he said, was the nature and constant amount of deception taking place. First, Mr. Sherlock’s dishonesty in stating he had never been criminally charged. Second, Mr. Sherlock not coming forward to disclose the criminal charges he was facing. Third, in Mr. Sherlock not disclosing that he had a court hearing to face criminal charges when at the same time he had signed off from work for sick leave. Fourth, from Mr. Happonen learning the reference received was from someone other than Mr. Sherlock’s direct supervisor. Mr. Happonen stated that being able to trust officers was of paramount importance and that Mr. Sherlock’s accomplishment of graduating from COTA as Class Valedictorian took second place to the deception Mr. Happonen considered he was seeing on this matter.

7Mr. Happonen testified that there is a staffing shortage in the Thunder Bay Correctional Facility of 112 Correctional Officers and that Mr. Sherlock is qualified to be a Correctional Officer by way of his training and background as a police constable for ten years. It is the evidence of Mr. Happonen that a person who discloses that they have been charged with a criminal offence is not automatically denied acceptance into COTA or refused a position as a Correctional Officer at the Jail, as each situation is considered individually as to the situation and circumstances.

8Mr. Sherlock testified on the matter of his direct supervisor reference from NAPS and said that over the time he was with NAPS he had several supervisors but that at no time was Brad Duce ever his direct supervisor. He gave evidence that over the years with NAPS he worked in many communities and under many supervisors, with the last performance appraisal done by Sergeant Will Carson in 2013. Mr. Sherlock testified that at the time he applied to COTA he was in Sergeant Dorkson’s detachment and as such he asked Sergeant Dorkson to provide the reference as his direct supervisor, and that he does not understand how Brad Duce could be considered to have been his direct supervisor as he has never directly reported to him. Mr. Duce was not called to provide contrary evidence.

9Evidence was given at the hearing by Mr. Sherlock on the matter of the two criminal charges laid against him in March 2019. These arose, he said, out of an acrimonious and high conflict separation battle with his former domestic partner and mother of his son and pertained to contacting her by email and picking up his son from day care ten minutes early. A letter entered into evidence from Mr. Sherlock’s lawyer to Mark Barstead at the Thunder Bay Jail and dated June 19, 2019, notes that Mr. Sherlock’s charges fall more in line with family law than criminal law, and that neither charge alleged any form of violence or threatening behaviour. By Mr. Sherlock’s testimony the two criminal charges laid March 28, 2019, were withdrawn in early 2020 thereby completely resolving the matter.

10Mr. Sherlock testified that on April 4, 2019, he ought to have reported the criminal charges on the ‘Employment Security Screening Declaration’ form and that in not doing so was an error of judgment. He said it was a stressful time for him and that it was never his intention to be deceitful. It is his evidence that he had notified his Union at NAPS of the charges, and that NAPS also knew. Mr. Sherlock said that on April 4, 2019, he thought that the charges would all be cleared up by the time the COTA course had finished and that if he disclosed he was facing criminal charges he may be barred from working as a Correctional Officer at the jail or even from completing COTA. He said he did not know with whom he could discuss the matter. Mr. Sherlock testified that, as integrity is important, when the matter had not cleared up by the end of the COTA course and graduation it was his intention to approach and speak to Mr. Barstead at the jail as soon as he had the opportunity, but that the opportunity did not arise on his first day at work on June 10^th^ as he was in large group meetings. He said he had met Mr. Barstead once before over coffee before starting COTA but did not have his telephone number.

11It is the evidence of Mr. Sherlock that he reported to work at the jail on June 10, 2019, had not been feeling well that previous weekend, and was in the hospital from later on June 10^th^ to June 17 or 18. He said he was seen by internal medicine physicians and testified that during the time he worked with NAPS he had a kidney removed. He said he provided medical information to the jail regarding his sick leave and was in touch with the scheduler. After attending the allegation meeting on June 20^th^ he said he was back in the hospital until June 24, 2019, and testified that at no time did he attend court in person.

12In his evidence at the Arbitration hearing Mr. Sherlock indicated the importance of honesty and integrity in the work of a Correctional Officer and said he was embarrassed and remorseful for not having disclosed these criminal charges that had arisen out of a high conflict family separation. He said that it was a stressful and emotional time for him and he ought to have sought guidance on how to handle this matter. Mr. Sherlock offered that this was an error in judgment on his part and never his intention to be deceitful. He said he has never been in trouble with the law before, that he loves law enforcement work, and that in ten years with NAPS he had a discipline-free record. His evidence is that the criminal charges were withdrawn in March 2020 and that he was never in court once. Mr. Sherlock seeks the opportunity to demonstrate and prove that he can be a good and dependable Correctional Officer who acts with integrity and can be trusted.

13It is the position of the Employer that its decision to terminate the services of Mr. Sherlock should remain undisturbed. It submits integrity and honesty are essential characteristics for a Correctional Officer and that Mr. Sherlock has been untruthful with the result that the Employer has lost trust in him and considers the employment relationship to be irreparably broken. The matters in issue giving rise to this loss of trust are three in number. First, on April 4, 2019, the Grievor signed a document entitled ‘Employment Security Screening Declaration’ on which he stated he had not been charged with any criminal offence when in fact, one week earlier on March 28, 2019, two criminal charges had been laid against him. Second that he had not come forward to disclose these charges, or shown he had a firm plan to do so, prior to this matter coming to the Employer’s attention sometime after Mr. Sherlock had started to work at the jail. It is essential, submits the Employer, that when any criminal charges are laid against an employee in the justice system that this be immediately disclosed and reported. Third, Mr. Sherlock had provided a letter of reference from a person he said was his direct supervisor when other information that came to the attention of the jail suggested that this person was not in fact his direct supervisor. The Employer urges that the termination remain in place.

14In support of its position and submissions the Employer made reference to the following arbitral authorities: Re OPSEU (Lunario) & Ontario (Ministry of Community Safety and Correctional Services), (August 31, 2015), GSB #2013-4304, Ont. Grievance S.B. (Luborsky); Re OPSEU (Weber) & Ontario (Ministry of Community Safety and Correctional Services), (May 7, 2013), GSB #2011-2918, Ont. Grievance S.B., (Fisher); Re OPSEU (Khan) & Ontario (Ministry of Community Safety and Correctional Services), (April 11, 2012), GSB #2010-0606, Ont. Grievance S.B., (Briggs); and to Re OPSEU (Pickett) & Ontario (Ministry of the Solicitor General and Correctional Services), (January 15, 1996), GSB #2251/93, Ont. Grievance S.B., (Kaplan).

15It is the position of the Union that Mr. Sherlock made a significant error in judgment on April 4, 2019, in not disclosing he had been charged with a criminal offence. It submits it was never Mr. Sherlock’s intention to be deceitful and that he wishes he had done things differently and disclosed the charges, not of violence or threatening behaviour but about family law communication issues, arising out of the hostile and antagonistic separation battle with his former domestic partner and mother of his child. Mr. Sherlock’s error arose from his sincere belief the charges would soon be cleared up and that disclosing them on the form would jeopardize his future career in correctional services that he was so much looking forward to and at which he felt he could excel. When not cleared up by the time he started work at the jail it was his intention to speak to Mr. Barstead or Mr. Happonen on the matter but the opportunity did not arise before Mr. Happonen became aware of the charges through internal sources. The Union submits that Mr. Sherlock has recognized his error, is sincerely remorseful, and wishes to prove that he can do the job of a Correctional Officer with honesty, integrity, and professionalism.

16On the matter of the allegation made by the Employer that the Grievor provided a reference from someone other than his direct supervisor the Union submits that this allegation is without merit and that Mr. Sherlock provided a reference from a person in a managerial role with whom he worked closely and who had direct oversight of his work. The Union submits that the direct testimony of Mr. Sherlock on this matter is to be preferred over the hearsay evidence of what Mr. Duce is reputed to have said, and notes that Mr. Duce was not called to give testimony and be cross-examined on the matter.

17In regards to the matter of remedy, it is the submission of the Union that dismissal was a disproportionally harsh punishment for the Grievor’s all-too-human failing in not disclosing personally embarrassing events that occurred outside of his employment and which would have no impact on his ability to perform with integrity the duties of a Correctional Officer. It seeks that Mr. Sherlock be returned to work forthwith to complete his contract, and submits that given the staff shortages testified to and the Grievor’s excellent performance at COTA, it can be inferred that Mr. Sherlock would have continued to work and have his contract renewed had he not been unjustly terminated. The Union accordingly seeks that Mr. Sherlock be made whole, subject to normal mitigation principles, for the period of time from the date his contract was terminated to the date he is returned to work.

18In support of its position and submissions the Union made reference to the following arbitral authorities: Re OPSEU (Lunario) & Ontario (Ministry of Community Safety and Correctional Services), (August 31, 2015), GSB #2013-4304 Ont. Grievance S.B., (Luborsky); Re OPSEU (Seguin) & Ontario (Ministry of Community Safety & Correctional Services), (January 13, 2005), Ont. Grievance S.B., 136 L.A.C. (4^th^) 339, 80 C.L.A.S. 166, (Brown) ; Re English & Canada (Treasury Board – Solicitor General – Correctional Service), (August 28, 2003), Canada Public Service Staff Relations Board 119 L.A.C. (4^th^) 289, 74 C.L.A.S. 339, (Guindon); Re Jalal & Canada (Treasury Board – Solicitor General – Correctional Service), (April 21, 1999), Canada Public Service Staff Relations Board 56 C.L.A.S. 47, (Giguère); Re N.S.E.G.U. & Nova Scotia (Department of Justice), (December 17, 2003), Source decision, 125 L.A.C. (4^th^) 431, 76 C.L.A.S. 322, (Kydd); Re Loblaw Groceterias Co. & U.C.R.E., (August 30, 1973), Source decision, 3 L.A.C. 2d 325, (Adams); Re Ongwanada & OPSEU, Local 433 (Watson), (July 29, 2007), 90 C.L.A.S. 233, (MacDowell); Re Perley and Rideau Veterans’ Health Centre & C.U.P.E., Local 870, (April 27, 2011), 107 C.L.A.S. 126, (O’Neil); Re Versacold Group & Teamsters, Local 419 (Jenkinson), (December 22, 1999), Source decision, 85 L.A.C. (4^th^) 366, 59 C.L.A.S. 67, (Davie); and to Re Weyerhauser Co. & I.W.A.-Canada, Local 2171 (Parmar), (November 7, 2001), 101 L.A.C. (4^th^) 289, 66 C.L.A.S. 336, (McPhillips).

19The foregoing evidence and submissions of the parties have been carefully considered. The three allegations put to the Grievor at the Allegation Meeting held on June 20, 2019, were that his off-duty conduct led to criminal charges being laid that he had not reported, that he signed a document pre-employment stating that he had not been charged with any criminal offence when in fact he had, and that he had provided a reference from someone other than his direct Supervisor. Mr. Sherlock agreed at the Allegation Meeting and at the Arbitration hearing that the first two allegations were factually correct but disputes the third allegation of providing a false reference.

20As such, there is a dispute on the evidence as to whether the Grievor provided a reference from someone other than his direct supervisor. The doubt and contention arose out of a telephone conversation the then Superintendent of the jail, Mr. Happonen, had with a Mr. Brad Duce at NAPS who told Mr. Happonen that it was he who was the direct supervisor of the Grievor and not Mr. Storkson. In his testimony under oath Mr. Sherlock vigorously asserted that Mr. Storkson was his direct supervisor at NAPS at the time he provided the reference, that over his ten years of service there had been many supervisors, and that he could not understand how Mr. Duce could be considered to be his direct supervisor.

21While it is not in question whatsoever that Mr. Happonen truthfully relayed the information he heard from Mr. Duce, in that Mr. Duce was not called to provide evidence at the arbitration and be cross-examined on his testimony, what Mr. Happonen heard from Mr. Duce remains hearsay. As hearsay, it cannot be preferred to the testimony of the Grievor given under oath on this matter. Accordingly, it is found that the allegation Mr. Sherlock provided a reference from someone other than his direct supervisor at NAPS has not been proven and that as such Mr. Sherlock was not untruthful on this matter. The finding that had been made by the Employer from the Allegation Meeting was that all three allegations had been substantiated, and discipline was determined on that basis.

22In the Allegation Meeting and in his testimony at Arbitration the Grievor agreed he stated on the ‘Employment Security Screening Declaration’ form that he had not been charged with any criminal offence when in fact he had, and that he had not informed the Employer that he was currently facing criminal charges. There can be little doubt that such conduct in the context of employment in a jail as a correctional officer provides just cause for discipline and we turn now to consider the matter of whether termination of Mr. Sherlock’s employment is the appropriate disciplinary response. In doing so we turn first to consider the pertinent underlying legal principles.

23In the GSB decision of Re OPSEU & Ontario (Ministry of Community Safety and Correctional Services), 2005, 136 L.A.C. (4^th^) 339 (Brown), it is noted that employer responses to finding a falsification on an employment application fall into two categories following two different legal approaches. The first of these line of cases is that set out in Re Douglas Aircraft Co. of Canada v. U.A.W., Local 1967 (1973), Source decision, 2 L.A.C. (2d) 147 (Ont. Arb.) (Simmons), and concludes that discovery of a falsification to obtain employment allows management to discharge the employee if they would never have been hired except for the falsehood.

24A different approach, forming a second line of cases, was taken by Arbitrator Shime in Re Gould Manufacturing of Canada Ltd. v. U.S.W.A. (1972), Source decision, 1 L.A.C. (2d) 314 (Ont. Arb.) upheld Source decision, [1973] 2 O.R. 279 (Ont. Div. Ct.) in a case where the grievor had lied about his criminal record. Arbitrator Shime concluded that not every falsification of an employment application provides just cause for termination as a number of factors such as the nature and character of the misrepresentation and the matter or offence concealed need to be taken into account in shaping a disciplinary response to the falsification. That is, automatic termination of employment is not an appropriate disciplinary response.

25As noted in Re Weyerhauser, (supra) as well as in Re Lunario, (supra), this second approach requiring that other factors must be taken into account in assessing an employment relationship, even where there has been material and fraudulent misrepresentation, was adopted by the Supreme Court of Canada in the wrongful dismissal case of Re McKinley v. B.C. Tel, 2001 SCC 38, 200 D.L.R. (4^th^) 385. In that case the Supreme Court held that not every act of dishonesty justifies the most extreme disciplinary response of termination of employment. It stated that all the circumstances of the matter must be considered with the ultimate issue being that of whether the dishonesty was of such a nature and degree that there was now a resultant breakdown in the employment relationship.

26The Decision of the Supreme Court in Re McKinley stated in part at paras. 48-57:

… I am of the view 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 in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent in the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer.

50While ample case law supports this position, as discussed above, a second line of jurisprudence seems to run counter to it, suggesting that dishonest conduct always irrespective of its surrounding circumstances, amounts to cause for dismissal. However a closer inspection of these cases reveals that they actually support a contextual approach. As noted, these judgments involved dishonesty that was symptomatic of an overarching, and very serious misconduct. In most cases, the courts were faced with allegations to the effect that an employee had intentionally devised to extract some financial gain or profit to which he or she was not entitled, at his or her employer’s expense. Such conduct was frequently tantamount to a serious form of fraud, and explicitly characterized by the courts as such.

51This being the case, I conclude that a contextual approach to assessing whether an employee’s dishonesty provides just cause for dismissal emerges from the case law on point. In certain contexts, applying this approach might lead to a strict outcome. Where theft, misappropriation or serious fraud is found, the decisions considered here establish that cause for termination exists. …..

52This is not to say there cannot be lesser sanctions for less serious types of misconduct. For example, an employer may be justified in docking and employee’s pay for any loss incurred by a minor misuse of company property. This is one of several disciplinary measures an employer may take in these circumstances.

53Underlying 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 …….

55In light of these considerations, I have serious difficulty with the absolute, unqualified rule that the Court of Appeal endorsed in this case. Pursuant to its reasoning, an employer would be entitled to dismiss an employee for just cause for a single act of dishonesty, however minor. As a result, the consequences of dishonesty would remain the same, irrespective of whether the impugned behaviour was sufficiently egregious to violate or undermine the obligations and faith inherent to the employment relationship.

56Such an approach could foster results that are both unreasonable and unjust. 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. …..

57Based 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.

27We turn now to apply the foregoing principles to the instant matter. As noted by Arbitrator Luborsky in Re Lunario, supra, the Ontario Court of Appeal in its decision in Re Dowling v. Ontario (Workplace Safety and Insurance Board), 2004 OCA minicounsel 886 characterized in the following way at paras. 49 & 50 the “core question” or “standard” to be applied in determining whether discharge for employee dishonesty is a just result and the proper application of the standard.

49Following 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 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 enquiry to be determined by a contextual examination of the nature and circumstances of the misconduct.

50Application 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).

28In the instant matter we consider now whether Mr. Sherlock’s conduct provided just cause for the discipline received, namely termination of his employment. The conduct in issue providing just cause for discipline is found to be the following. First, that he signed the ‘Employment Security Screening Declaration’ form on April 4, 2019 prior to starting his COTA training course stating that he had not been charged with any criminal offences. This was an untruthful statement as he had been charged one week earlier on March 28, 2019 with criminal harassment and disobeying a court order, both in connection with an ongoing and high conflict family separation issue. Second, that Mr. Sherlock did not come forward of his own volition to correct this incorrect information, although he freely admitted it when asked about it after he started work at the jail. With honesty and integrity being essential elements at the core of a Correctional Officer’s responsibilities, it must be found that Mr. Sherlock’s conduct in the foregoing regard provides just cause for a disciplinary response by the Employer. Prior to examining the matter of whether the Employer’s termination of Mr. Sherlock was an appropriate and proportional disciplinary response, we consider two other matters that seemingly entered into the Employer’s consideration in formulating its disciplinary response.

29A third allegation put to Mr. Sherlock at the Allegation Meeting was that he had provided a reference from someone he claimed was his direct supervisor at NAPS when in fact he was not. This allegation was considered in para. 20 of this decision with the conclusion reached that it was not proven, and that as such Mr. Sherlock was not untruthful on that issue.

30While not an allegation put to Mr. Sherlock at the Allegation Meeting, Mr. Happonen stated in his testimony that he was concerned about the amount of deception that seemed to be taking place and made particular reference to Mr. Sherlock taking sick leave just after having started work, yet at the same time having a court appearance to answer to his criminal charges. In regards to this apparent supplementary concern of the Employer it cannot be found on the evidence that Mr. Sherlock went on sick leave on June 11, 2019 in order to enable him to make a court appearance while at the same time attempting to conceal this from the Employer. The evidence, rather, is that he was in Hospital with an internal medicine issue and that his lawyer was making an appearance in court on his behalf. Accordingly, it cannot be found that in taking sick leave at that time Mr. Sherlock intended or was trying to mislead or conceal from the Employer that he was facing criminal charges.

31From the foregoing, Mr. Sherlock’s misconduct is that of stating on the Employment Security Screening Declaration form on April 4, 2019 that he had not been charged with any criminal offence when in fact he had been only one week earlier, and that he did not subsequently come forward to the Employer to disclose the true state of affairs at any time prior to the Employer finding this out shortly after the Grievor started work at the Jail on June 10, 2019. The matter to be now addressed is that of whether discharge from employment is the appropriate and proportional remedy. In doing so we follow the standard set forth in Re McKinley and consider the nature and extent of the misconduct and the surrounding circumstances. We assess whether the employment relationship is irreconcilably broken with termination of employment being the proportional and appropriate remedy.

32Mr. Sherlock was dishonest in stating that he had not been charged with any criminal offence when indeed he had been only a week earlier. The evidence shows that there were two charges at the time, neither alleging any violence or threatening behaviour, but pertained to ongoing family law issues between Mr. Sherlock and his former domestic partner and involved in part the matter of access to his son. These charges, brought by his former domestic partner, alleged that Mr. Sherlock failed to follow through with a court order requiring communication to be through a written communication book, and that he repeatedly communicated with his ex-partner. The evidence shows that Mr. Sherlock was of the view these charges would soon be cleared up, was embarrassed at disclosing them, and that he lied in stating on the form that he was not facing any criminal charges. I am of the view that his conduct here was an error of judgment and not reflective of a lack of integrity. This is a man with a discipline free record during his ten years of service with the NAPS police service, and no previous run-ins with the law. These were charges associated with family issues, but not of a violent or threatening nature. I accept Mr. Sherlock’s evidence that on the first day of work on June 10^th^ he was in group meetings and did not get the opportunity to speak to someone about facing these charges that had been filed by his former domestic partner and mother of his son.

33The instant case differs from, and may be contrasted with, the circumstances in Re Weber and Re Khan, two cases where termination was upheld that were referred to by the Employer in support of its submission that Mr. Sherlock’s termination should be sustained. In Re Weber the grievor was a fixed term Correctional Officer with three years of service who smuggled alcohol and tobacco into the jail and whose termination was upheld. In Re Khan the grievor was a Correctional Officer who failed to report over a lengthy period of several years a personal and business relationship with an ex-inmate who was also a friend of the family. The termination of this Correctional Officer’s employment was upheld at arbitration. The present case before the Board can be distinguished from both Re Weber and Re Khan and also many other cases that come before the Board, in that the root of the allegation facing Mr. Sherlock is off-duty and personal conduct that does not involve the work place and such things as weapons or drugs, or dealings with criminal groups or past inmates outside the work place. Neither does it pertain to involvement in lies or deceptions, or invoking the code of silence in the workplace in relation to interactions with inmates or other correctional officers.

34The instant matter does however bear certain similarities to the case of Re Lunario that was referenced by both parties. In Re Lunario a Correctional Officer failed to report to the employer for two years an off-duty drunk driver criminal conviction. The employer terminated her employment for failure to make a timely disclosure of the criminal charge and alleged there was an undermining of trust. In returning the grievor to work following a suspension the Arbitrator in that case noted that:

It was the grievor’s failure to make a 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.

35In Re Jalal, the Grievor was a correctional officer whose off-duty behaviour in allegedly stealing from a hardware store led to criminal charges being laid, and from which he was ultimately acquitted at trial. At arbitration his conduct was held to be an error in judgment and not a lack of integrity. It was found that the connection, or nexus, between the grievor’s conduct and the employer’s interests was insufficiently close enough to justify termination of employment. The grievor was returned to work following a suspension.

36There being a nexus between the conduct of a grievor and the employer’s interests was also seen as an important factor in Re Loblaw Groceterias. In that case Arbitrator Adams found that not every falsification of an employment application constitutes just cause for discharge, and that for a falsification to justify termination it must provide just and sufficient cause and have a nexus to the job.

37The importance of any mitigating factors that may be present was addressed in two of the other arbitral authorities put forward by the Union in support of its submission that Mr. Sherlock be returned to work following a suspension. In Re N.S.G.E.U v. Nova Scotia a correctional officer was terminated when it was found by the authorities that marijuana was being grown in his house by his wife to alleviate her severe pain. It was found he had no involvement in the operation, that he had suffered significantly economically from the termination of his employment, that he had been cooperative and forthcoming with information to the police in its enquiries, and that he had high rehabilitation potential. The grievor was returned to work following a suspension. In Re Ongwanada the grievor put several personal charges on her employer’s gasoline credit card, and was terminated. In returning the grievor to work following suspension and without compensation, the mitigating factors cited here were deep remorse and extreme financial hardship.

38In Re Versacold, the grievor worked in a cold storage facility and applied for a promotion after two years of employment. The form the grievor completed asked if he had been convicted of a criminal offense or was charged now with a criminal or summary conviction. He answered that he had not, and a subsequent background check revealed he had lied, and that he did have a criminal record for theft from a previous cold storage employer. It was found that the grievor had been dishonest about a relevant fact material to that work environment; in other words there was a nexus between his misrepresentation and his work. When confronted with this information by the employer the grievor was immediately truthful and made no attempt to hide his criminal record. He was reinstated without compensation following a lengthy suspension.

39In the instant case involving Mr. Sherlock he too, like the grievor in Re Versacold, was immediately forthcoming and truthful when asked about the charges he was facing. Unlike that grievor, however, the charges faced by Mr. Sherlock pertained to off-duty conduct and had no nexus with activity in the workplace. Unlike the grievor in Re Versacold who had been found guilty of theft and had a criminal record, Mr. Sherlock did not have a criminal record. Mr. Sherlock was facing criminal charges, eventually withdrawn, that related to the manner in which he had been communicating with his past-domestic partner and mother of his son.

40Mr. Sherlock does not have a criminal record, and indeed has not by his evidence ever been in trouble with the law. Nor by Mr. Happonen’s evidence would there have been any automatic refusal into COTA or refusal of a position as a Correctional Officer from disclosing he had been charged with a criminal offence as each situation is considered on its own merits. The subject matter of the charges did not have a direct nexus to work as a correctional officer and arose out of an off-duty family matter.

41Mr. Sherlock has a successful and discipline-free career behind him at NAPS. He had a highly positive experience in the COTA course and was class valedictorian. Since then he has suffered financially and emotionally as a result of stating on the form on April 4, 2019 prior to the start of COTA that he had not been charged with any criminal offence. The conflict with his past domestic partner over communication and seeing his son was clearly a highly charged emotional matter for Mr. Sherlock, and in the hope that the matter would soon resolve he exercised bad judgment in giving his answer; it took longer than he expected for the charges to be withdrawn. The Board is unable to find his response on this matter was indicative of a lack of integrity, and indeed Mr. Sherlock did not deny the existence of these charges when asked.

42Having regard to all the foregoing, and having given consideration to the circumstances of Mr. Sherlock’s situation, it is found there was just cause for discipline. It is also found that the termination of Mr. Sherlock was not a proportional disciplinary response. As such, the termination of Mr. Sherlock is to be rescinded. In its place and effective the date of this Decision he is to be returned to work to complete the balance of his six month contract, but subject to a ten working day unpaid suspension commencing the date of this Decision. The time period from Mr. Sherlock’s termination to the date of this Decision is to be without back pay or accumulation of benefits.

43Mr. Sherlock should recognize that honesty, trust, and integrity, are critical elements in this employment relationship and that in going forward Mr. Sherlock should ensure that his conduct is exemplary and beyond reproach. The Employer is directed to not take this ten day disciplinary response into account at any subsequent time in considering Mr. Sherlock for any new or additional contract, and with the Employer’s determination to be based on the usual relevant factors including the performance of Mr. Sherlock on the job.