Ontario Public Service Employees Union (Semenuk) v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2025 CanLII 28468

GSB# 2022-0590

UNION# 2022-0128-0137

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Semenuk)

Union

• and -

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

Employer

BEFORE

Barry Stephens

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 3, October 27, 2022; June 22, July 17, September 28, October 5, 19, 24, November 2, 22, December 6,13, 19, 2023; April 2, May 1, 24, October 24, 2024

Decision

Introduction

1This case involves the grievor’s termination of employment. The grievor was a Correctional Officer (CO) at the Sarnia Detention Centre (EMDC) and was terminated on March 31, 2022 for an incident with an inmate that occurred on April 26, 2021 and the contents of an email sent to his manager on December 22, 2021.

Evidence

2Deb Lucas was the Superintendent at the Sarnia jail at the time of the events in question. She made the final decision with respect to the discipline imposed on the grievor. The incident on April 26, 2021, came to her attention in late or early June 2021 after she was advised by the Deputy Superintendent Brian McDougall that he had received an anonymous note that suggested the grievor had been talking to other staff about watching a female inmate in segregation “touch herself.” She was concerned about the anonymous note and asked McDougall to initiate an investigation. She subsequently reviewed video of the event and concluded that the inmate was masturbating while the grievor continued to watch, and this circumstance continued for ten minutes. Lucas concluded that the grievor watched the inmate and did not bring the matter to anyone’s attention and did not ask for relief. She testified the grievor should have asked a female inmate to relieve him or called the sergeant on duty for assistance. She also concluded from reviewing the video and the occurrence reports of three female COs in the area that the grievor made inappropriate and unprofessional comments to the inmate and that he had been watching the inmate masturbate. She was disturbed also by the report of CO Toulouse that the grievor appeared to be enjoying himself. She understood that CO Brewer heard the grievor tell the inmate to “push it out”, and Toulouse heard him say, “you should be wearing a skirt.”

3Lucas testified that, after gathering the information, she convened a meeting to decide on the disciplinary penalty to be imposed. The grievor was on an extended sick leave and the disciplinary meeting was not held until March 2022. She had concluded that the serious allegations set out in the letter of termination had been substantiated and the appropriate discipline was termination. There is little doubt that, had the allegations been proven, there would have been just cause for termination. Lucas testified that the other allegation that supported the grievor’s termination was the fact that he sent an insubordinate email to her with respect to a payroll error on December 22, 2022.

4Under cross-examination, Lucas testified she relied on the ORs provided by the COs who were in the area at the time, but that she did not interview any of them. She did not direct the staff to retain the video evidence from the hallway outside the segregation area, nor the video leading to McDougall’s office. She agreed that the grievor was still in the job-shadowing phase of his orientation at the time of the incident and he would have been supernumerary to staffing assignments. She did not know or ask how it was the grievor became assigned to segregation. She agreed that constant watch meant he was to keep his eyes on the inmate at all times. She agreed that the video of the incident showed the grievor did not maintain a constant watch after the inmate started to undress. She also agreed that it is the responsibility of the supervisor on duty to assign staff consistent with considerations such as maintaining watch on an inmate of the opposite sex. She did not find out and could not explain why the grievor was assigned that duty while three female COs were assigned work nearby. Lucas could not say and had not ascertained whether the grievor had a radio that he could have used to call for assistance. She testified he could not have used an institutional phone because there was no phone in the segregation area. She agreed that the other COs in the area were in a better position to call for backup than he was. Lucas confirmed there was no discipline given to Toulouse, Brewer or Perry, all of whom entered the segregation area, saw the grievor’s situation and then left the grievor there on constant watch.

5With respect to the December 22, 2021 email, Lucas agreed the grievor had good reason to be concerned about the Ministry taking steps to recover an overpayment. She looked into the matter and agreed that it had not being handled properly in that the employer had made the original mistake causing the overpayment and then had failed to communicate with the grievor before arranging for the repayment. She apologized to the grievor for the error.

6With respect to the dispute about setting up a disciplinary meeting with the grievor, Lucas acknowledged that there was an October 2022 medical report stating the grievor could not attend such meetings but that the employer always acted on the most updated medical note. A more recent report, from November, made no mention of any such restriction. She could not explain why the October doctor’s note had been disregarded while an earlier note, from August, had been considered.

7Shannon Brewer was a long-term CO who had been working at the Sarnia jail since 2003. She confirmed she wrote her occurrence report after a request from the employer made two months after the incident of April 26. She testified that, given the passage of time, when she wrote the occurrence report she “probably did not have a great recollection.” It was clear from the manner in which she gave her evidence, Brewer did not have a good memory of the timing or sequence of events. She confirmed, however, that she became aware something was happening when she heard the grievor shout into the hallway that the inmate was “getting naked.” She entered the segregation area and saw that the inmate’s pants were half down. When asked in chief what she did after she witnessed these events, she stated she did not recall. She left the area and at some unspecified time after she heard the grievor say something to the effect of “push it out.” She testified she did not recall what she was doing when she heard the grievor say this, adding that that she was responsible for other inmates that day. She stated she assumed the comment was directed at the inmate and that the grievor was trying to get her to push the contraband out of her body.

8Under cross-examination, Brewer agreed that she did not think the incident involving the grievor was significant enough to warrant an occurrence report. She also agreed that her memory was “hazy” when she wrote the occurrence report at the employer’s request on April 26. She agreed that she did not offer to relieve the grievor when she first discovered the inmate was partially naked. She also testified that, after leaving the grievor alone on constant watch in segregation with a partially naked female inmate, she did not use her radio to arrange for relief for the grievor or contact her manager to seek instructions or assistance. She confirmed that she did not consider the “push it out” statement from the grievor to be sexual in nature but was referring to the passing of contraband. She also confirmed she was not asked by management at the jail to explain any aspect of her occurrence report. She stated that Toulouse, who visited the segregation area twice, did not come to speak to her about the situation. She also confirmed that, although the grievor was placed on constant watch in segregation she had retained the keys to the cells.

9Julian Toulouse was a CO at the Sarnia jail who had been hired just the month before the incident on April 26. She testified she did not have clear independent recall of the events in question at the time she wrote the occurrence report at the employer’s request. She wrote in her occurrence report that she “thought” she could hear the grievor comment to the inmate “something along the lines of” the inmate should be wearing a skirt. When asked to explain why in the occurrence report she had written she “thought” she heard the comment, she said she did not remember why she used that wording. She also stated in her occurrence report that she had the impression the grievor was “looking for a reaction” from the inmate, and she testified that based on his tone of voice she thought the grievor was “enjoying himself.” When asked to describe his tone of voice, she stated she did not remember exactly, just that she would have felt uncomfortable if someone had spoken to her in that manner. She could not recall the sequence of events with respect to when she first saw the inmate and the grievor’s comment. She observed in her occurrence report that the grievor did not ask to be relieved and stated he did not know that was required in the circumstances. She had stated that he became “defensive” but testified she could have taken his tone the wrong way.

10Under cross-examination, Toulouse agreed that she did not believe the events on April 26 were worthy of an occurrence report and that was why she did not write one until asked to do so by management. She agreed that she could not specifically confirm the grievor had used the word “skirt”, or any of the other words she attributed to him in her report. She was not aware the grievor was not wearing a radio. She acknowledged that, having witnessed the situation, she left the area, leaving the grievor on constant watch with a partially nude female inmate. She had a radio, and she stated she could not recall if she had used the radio to try to get relief or other assistance for the grievor. She was not disciplined for her actions during the incident.

11Chrissandra Perry was a CO at the Sarnia jail with approximately seven years of experience. She prepared an occurrence report two months after the April 26 incident at the request of the employer. She entered the segregation area during the incident on April 26 and saw the inmate had her pants down. She testified she was shocked. She stated she did not know how long the grievor had been there while the inmate was partially naked. She testified she asked the grievor how long he had been there, and he said for “a while.” She stated the grievor told her that the inmate had been “grinding the air” but the comment was made to her and not directed at the inmate. She told him this situation was inappropriate and that he should have taken steps to get relieved by a female CO. She stated the grievor had a “smug” attitude and did not appear to care about the reasons why he should be switched out.

12Under cross-examination, Perry stated she had not been aware the grievor had been at Sarnia for only four days on the day of the incident and did not have a radio. She was not aware the grievor had called into the hallway to let his co-workers know the inmate was taking her clothes off. She also confirmed she had not been advised that Brewer had entered the area twice after the incident started, the first time very close to the beginning, but had left the area and the grievor as the sole CO both times. She was also not advised that Brewer did not try to call for help or relief for the grievor. She agreed that either Brewer or Toulouse could have relieved the grievor at any time. She agreed she did not write an occurrence report on April 26 because she did not think the incident was worthy of being reported.

13Dr. Tracy Oulette had been the grievor’s family physician for more than ten years at the time of her testimony. She testified she had written a note stating the grievor could not “successfully” work as a CO in June 2021, stating it was the job at the Sarnia jail that was the concern at the time. In other words, it was her view he could not be successful in the job he was in at the time. She had referred the grievor to a psychiatrist who had diagnosed the grievor with “operational stress injury”, but she did not feel qualified to comment on the diagnosis as it was not her area of expertise. Dr. Oulette stated she filled out many forms for patients, and her practice was to answer the questions put to her, but she did not typically add in her own commentary or raise subjects not addressed on the forms. She stated that in the October form she indicated the grievor should not be required to attend any meetings other than meetings intended to assist in supporting his mental health recovery. She said her opinion about this restriction had not changed when she filled out the November form, but the employer had not asked for an update on that point, so she had not mentioned it in her replies. Dr. Oulette testified that the grievor was on medication but there would have been no concern about the side effects of the drugs in question.

14The grievor, Marty Semenuk, attended the corrections services college in October 2015. He did very well at the college, receiving a peer award and a fitness award. He was first hired at EMDC in 2015 and worked there until he came to Sarnia in 2021. He testified that he received no training at the college regarding the procedure when dealing with an inmate of the opposite sex becoming naked while under constant watch, nor did he get any such training at EMDC. He had not reviewed any policy or standing order on the subject at Sarnia and no one had advised him of any such directive.

15The grievor testified that he had disabilities associated with PTSD, alcoholism and an operational stress injury when he came to Sarnia. The incident on April 26, 2021 happened six days after he started at Sarnia while he was still in his shadowing phase. During that phase it was his understanding that while he was shadowing, he was not “signed off” and therefore was supernumerary to the staffing complement on any shift and that he could not be assigned to a post to work independently. Despite this, he was assigned by Sergeant Marshall, the manager in charge of the shift, to constant watch of the inmate in segregation. The inmate had refused a body scan and was considered likely to be carrying contraband on her person. He understood constant watch to mean he was to keep his eyes on the inmate at all times to ensure her safety and to see if the inmate passed any contraband. He stated that he was not allowed to leave his post during a constant watch assignment. He confirmed that he did not have a radio, there was no phone in the segregation area, and he did not have the keys to the cell.

16Under cross-examination, the grievor testified that shortly after the inmate started to remove her pants, he elevated his voice to advise his co-workers in the nearby hallway that the inmate was “getting naked.” He confirmed he did not use the words “I need help”, or “I need to be relieved”, but he believed letting his co-workers know the inmate was pulling her pants down was good enough to secure assistance. Brewer responded to his call-out but left after a short time. Toulouse and Perry also came to the area, but they also left without offering any assistance. He testified he asked the inmate to pull her pants up, and that he did not see the inmate remove any contraband from her body at any time.

17The grievor stated he did not recall using the phrase “push it out.” He agreed he stepped back from the cell window and looked away because it was “the right thing to do”, in order to maintain the inmate’s dignity. He felt he should not have been left alone in the area, although he agreed he did not file an occurrence report that day and did not make any other notation or report of the incident. He testified he did not say to the inmate that she should be wearing a skirt. He denied that he was enjoying the situation, as alleged by Toulouse, adding that it was obvious from the video that he was uncomfortable. The grievor agreed that one of the other COs, possibly Perry, had mentioned at one point that he should have arranged for someone to relieve him. His view was that he should not have been assigned to the constant watch in the first place, since the inmate was female, and he was still in the shadowing phase of his orientation to Sarnia.

18The grievor was asked in cross-examination about his apology for the nature of his comments against his managers, particularly Lucas, in the email exchanges about the payroll error and about the attempts to set up a disciplinary investigation meeting. The grievor clarified that while he apologized for the “tick, tock” comment, he did not retract his allegations that Lucas and others had been “caught red-handed” falsely accusing him of such things as shopping around for medical notes. He considered he was acting as a “whistle blower” when he spoke his mind about his treatment.

Employer Submissions

19The employer argued the case for termination was about the grievor’s lack of professionalism and his insubordinate defiance of management. The employer asserted there was just cause for termination but argued in the alternative that, if termination was excessive, the grievor had irreparably damaged the employment relationship through his actions, and that damages in lieu of reinstatement would be more appropriate.

20The employer asserted the case with respect to the incident on April 26, 2021 turned on the grievor’s credibility. The general test for credibility was that the grievor’s story should be consistent with the preponderance of probabilities of the known facts. In cases involving Corrections, there is often an unfortunate “code of silence” with respect to testifying against a fellow Correctional Officer. In a case like this, where several COs testified against the grievor, their evidence should be given greater weight in that they felt strongly enough about the grievor’s conduct that they were willing to come forward and provide credible and compelling evidence. The employer also suggested the grievor’s recall was not good and he became confused about many facts related to the events of April 26.

21The employer argued the grievor was not being truthful when he denied making the various comments attributed to him by Brewer, Toulouse and Perry. He could not explain why they would have included those statements in there ORs if they were not true. His bare denial and suggestion they were lying was evidence of his lack of credibility.

22With respect to the second allegation regarding the grievor’s December 2021 email, the employer argued the grievor’s communication was unprofessional, insulting, conspiratorial, insubordinate and threatening. The “tick tock, tick tock” phrase was particularly unsettling. Even though the employer had made an error with respect to the grievor’s pay, that was no justification for the level of anger and vitriol aimed at Lucas and the extreme insubordination to which she was subjected. The employer submitted the grievor’s apology during the hearing was insincere, pointing out the grievor had demonstrated similar insubordination and defiance in later emails dealing with the attempts to set up allegation meetings.

23The employer submitted there was a higher standard of behaviour for COs given the nature of their duties, and the grievor had failed to maintain that standard. Sexual misconduct was particularly heinous and was as at least as serious as theft in the workplace and should attract the most severe discipline. In addition, the grievor’s insubordination was extreme, and was repeated over a number of emails to his superiors. The grievor could have offered a sincere apology for his insubordination at an earlier date but did not. In the alternative, if there was not just cause for termination, the grievor should not be reinstated but should be provided with compensation in lieu. The grievor continued to hold management in contempt and the employment relationship was irreparably severed.

24The employer relied on the following authorities: MCSCS (Gillis), [2008] CarswellOnt 6734 (Abramsky); MTCU (Bodai), (unreported, Petryshen, 22 November 2001); MCSCS (Beltrano et al), (unreported, Petryshen, 11 August 2008); MCSCS (Bijowski), [2012] CarswellOnt 13494 (Dissanyake); Government of Alberta, [2002] CarswellAlta 1835 (Elliott); Trillium Health Centre, 2001 CanLII 62093 (ON LA), [2001] CarswellOnt 5990 (Surdykowski); MCSCS. (Ataw), [2019] CarswellOnt 9221 (Gee); Hendrickson Spring Stratford, [2008] CarswellOnt 8472 (Verity); XLFoods Inc., [2011] CarswellAlta 1460 (Power); Cariboo-Chilcotin School District, [2004] CarswellBC 3654 (Hope); MCSCS (Marshall), [2013] CarswellOnt 13106 (Abramsky); LCBO (Massa), (unreported, Abramsky, 15 February, 2000); MGCS (Chung), 2022 CarswellOnt 4204 (Johnston).

Union Submissions

25The union stated the grievor had been terminated for two specific reasons, the first being the incident of April 26, and the second being his email of December 22.

26With respect to the incident on April 26, the employer alleged the grievor had watched an inmate in segregation masturbate, and that he engaged in sexually explicit conversation with the inmate while watching her. The union submitted that the evidence did not support these assertions.

27It was clear from the evidence that the grievor was not assigned to suicide watch but was assigned to “constant watch.” The concern with respect to the inmate was that she refused to submit to a full body scan on entering the facility. Standard procedure in such circumstances was to assume the inmate was carrying contraband, place them in a segregated cell, and have a CO engage in constant watch until the inmate passed the contraband. There was agreement between the parties that constant watch meant that the grievor was required to watch the inmate at all times, without interruption, until the contraband was passed.

28The union noted that the employer did not allege the grievor had violated a specific policy or standing order with respect to nudity during a constant watch because no such policy existed. There was comprehensive video of the entire time the grievor was engaged in the constant watch on April 26, and the video supported the grievor’s version of events.

29The union relied on the fact that the employer retained only the video from the segregation area, and did not retain video from the adjoining hallway or from the area around Deputy Superintendent’s McDougall’s office where the anonymous note was left. The video evidence was not clear enough to support the employer’s allegation the inmate was masturbating, let alone that the grievor was watching her masturbate. The union pointed out that even had the inmate been masturbating, the grievor was, strictly speaking, required to keep constant watch unless and until he was relieved. Moreover, it was evident from the video that the grievor was visibly uncomfortable after the inmate started to remove her pants, and he did not keep constant watch. The video evidence did not support the employer’s other allegation that the grievor engaged in sexually explicit conversation with the inmate. Although there was no sound, there was very little indication of communication of any kind between the grievor and the inmate. However, the video showed the grievor looking down, looking away, turning away, looking up at the security camera, raising his hands and arms in apparent frustration, looking down to the adjacent hallway, and walking toward the doorway that led to the hallway. The employer relied upon a distorted interpretation of the statements in the occurrence reports from Toulouse, Brewer and Perry, but all three written statements were shown in a different light by the viva voce evidence.

30The union argued the fact that the grievor did not have a radio and did not have keys to the cell in segregation confirmed that he was still in the shadowing phase of his orientation at Sarnia. During this period, he was supernumerary and not supposed to be assigned on his own. There was no dispute that he received no training at the corrections college on the issue of how to respond to an inmate removing their clothes while on constant watch, nor is there any evidence the grievor received instruction on this issue at Sarnia.

31The union argued the grievor could not be faulted for failing to arrange for his own relief. He did not have a radio and there was no phone in the segregation area. His only option was to do what he did, which was to attempt to enlist the help of nearby COs by shouting to them in the hallway. In this way, the grievor called for assistance to the best of his ability in the circumstances. The odd fact was the reaction of the other COs. Brewer, Toulouse and Perry could have immediately radioed managers for relief or instructions, but they failed to do so. It was almost as if there they were of the view that there was nothing wrong with the grievor remaining at his post on his own. Given all of these considerations, the union submitted there was no just cause for disciplining the grievor with respect to the incident on April 26, 2021. The union argued I should prefer the video evidence to the evidence of the erroneous assumptions made by Lucas and others.

32With respect to the second allegation about the grievor’s email of December 22, the union argued it was important to note that the employer did not rely on any subsequent emails to justify the termination, even though they all pre-dated the grievor’s termination. The employer chose to focus on one email as the grounds for termination, even though there were other emails available. It was not appropriate now for the employer to attempt to rely on emails that were not identified under either allegation as set out in the letter of termination.

33Addressing the December 22 email, the error occurred because while he was on sick benefits the employer had continued to pay him his full pay although he should have been receiving 75 percent of his pay. The employer unilaterally reduced the grievor’s pay to recover the overpayment, and this happened just before Christmas. The grievor became upset and lost his composure in the email. This did not negate the fact that the content of the email was wrong, and some minor discipline may have been warranted. The jurisprudence was clear (see for example Maud) that the employer was to be held to the scope of the grounds set out in the letter of termination. The employer had received the subsequent emails prior to the grievor’s termination but did not refer to them in the reasons for termination. The termination letter mentions the allegation meetings, which was the focus of the subsequent emails, but the issue is not mentioned as one of the allegations leading to the grievor’s termination.

34The union relied on the grievor’s apology for the December 22 email given during his testimony. The union also argued that, even if the email was worthy of some discipline, Lucas testified that it would not have been sufficient to justify termination on its own.

35Even with respect to the emails not relied upon, the union submitted, the employer had chosen to ignore the restrictions recommended by the grievor’s doctor with respect to the kinds of meetings he should attend. Such meetings were to be restricted to issues related to the grievor’s treatment and health transition. The employer medical questionnaire that led to the doctor’s November report did not ask questions about the grievor’s ability to attend meetings. The employer decided to act upon the assumption that the responses to the new questions in November somehow negated the previous medical restrictions about meetings. The grievor understandably experienced some frustration when the employer purported to ignore the doctor’s October note limiting the kinds of meetings the grievor could attend.

36With respect to mitigation of penalty, the union relied on the fact that the grievor had a very promising start to his career in Corrections. He attended the training college in December 2015 and won both a peer recognition award and a fitness award. The grievor had worked at EMDC from 2015 until April 2021, when he transferred to Sarnia on April 20. The incident that led to his termination happened just a few days after his transfer. At the time of the incident, the grievor was still in the shadowing phase of his orientation at Sarnia and was supernumerary. During that shadowing period he was not supposed to be assigned to an independent post, and he was not permitted to work any overtime. He worked until June 2021, when he was put on paid suspension pending investigation of the April 26 incident sparked by an anonymous letter.

37The union submitted it was troubling that the letter of termination also refers to the review of the grievor’s file. The disciplinary summary document that was prepared for the managers who decided on the grievor’s discipline included a reference to a previous discipline in June 2021. However, that discipline had been settled and removed from the grievor’s record prior to the decision to terminate. It should not have been reviewed or relied upon by the employer in any way. Lucas testified that she did not consider the prior discipline in reaching her conclusion to terminate. The union argued that was not a convincing response because it was inconsistent with the fact that the prior discipline was featured in the documents reviewed and no explanation was provided as to why that happened.

38The union argued that there should be no discipline imposed for the first allegation regarding the incident on April 26, 2021, and conceded that some minor discipline was justifiable for the grievor’s communication on December 22, 2021.

39The union relied on the following authorities: Wm. Scott & Company, [1976] CarswellBC 518 (BCLRB); LCBO (Phagau), (unreported, #2014-4119, March 4, 2020, Harris); MCSCS (Maude), [2016] CarswellOnt 4226 (Petryshen); MCSCS (Langford et al), (unreported, Stephens, 26 April 2017); Tenant Hotline (1983), 1983 CanLII 4854 (ON LA), 10 L.A.C. (3d) 130 (MacDowell).

Conclusions and Decision

40My view is that the grievor should be reinstated with full compensation. There was no just cause for termination or for any other discipline proven with respect to the incident in the institution on April 26, 2021. Some discipline is warranted for the December 22, 2022 email, and I have assessed it is worthy of a 3-day suspension.

41I do not agree that, in the circumstances of this case, the testimony and evidence of the COs who testified for the employer’s case was more reliable than the grievor’s evidence because it was given against the history of the ‘code of silence.’ The quality of the evidence of each witness has to be weighed against the known facts and tested for consistency with respect to the theory of the cases being presented. The test the employer has to meet is that the two allegations made against the grievor in the letter of termination should be proven on a balance of probabilities.

The employer was correct in pointing out that the grievor could not recall many details of the incident. However, all the examples the employer relied upon with respect to the grievor’s memory related to evidence about secondary points, such as the sequence of events, who was present at what times, what was precisely said, even the grievor’s medical condition at the time. In my view, these points of evidence were not directly relevant to the main facts in dispute. There would appear to be nothing for the grievor to gain in deliberately misstating his evidence on these points. It is also fair to observe that the memory of the three COs who testified for the employer was not any better than that of the grievor.

42The question is whether the employer has proven the case against the grievor. The two main sources of evidence for the employer’s case were the testimony of the other COs and the video of the April 26 incident. Neither of these sources, in my view, established the employer’s case.

43All of the employer’s witnesses had poor or imprecise recall of the events. This was not too surprising given they all testified, as did the grievor, that they did not think the events of April 26 were significant, and certainly not worthy of an occurrence report or other record. Their occurrence reports were requested by the employer after an anonymous letter was left in the office of Deputy Superintendent in June 2021, more than two months after the events in question. In my view, the viva voce testimony given by Perry, Toulouse and Brewer was not consistent with the assumptions made by Lucas and others based on the ORs that were provided. This was particularly significant because the employer failed to interview the witnesses prior to terminating the grievor, electing to rely solely on the written statements.

44Lucas confirmed in her testimony that she took the reference in Brewer’s occurrence report to the employer making a statement of “push it out” as proof that the grievor made a sexual comment to the inmate. The employer suggested the grievor was being untruthful when he denied the “push it out” statement, because he could not provide any evidence as to why Brewer would have falsified information against him. Brewer, however, did not confirm Lucas’ assumption that the statement was sexual in nature. On the contrary, Brewer testified that she understood the grievor to be urging the inmate to push out any contraband she may have inserted in her body. This was obviously an important distinction. Brewer’s report was not intended to accuse the grievor of making a sexualized statement, but that is how Lucas and others in senior management read it. Unfortunately, Brewer was not interviewed prior to the grievor’s termination, and from this I conclude the employer based the termination in part on a misunderstanding of the content of Brewer’s occurrence report. Even assuming the grievor made the statement attributed to him by Brewer, the employer failed to prove that in doing so the grievor engaged in sexualized communication with the inmate.

45There are details in Toulouse’s evidence that are concerning, but the difficulty with her evidence was that it was generally vague and imprecise. She admitted to not having a clear memory at the time of the writing of the occurrence report. She conceded she could not recall the grievor’s exact words and was generally unsure about the details of the event on April 26. Her lack of precise recall was significant. She could not confirm the grievor had even used the word “skirt”, or any of the other words she attributed to him in her occurrence report. She could not recall significant details, such as if she had radioed for assistance. Given the imprecise nature of her memory and the lack of clear detail, her evidence largely rested on her personal reaction to the tone of voice of something she thought she heard. She may well have misunderstood or been mistaken about what the grievor said. Regardless, her evidence was neither certain enough nor clear enough to support the allegations against the grievor. Given all this, it is my conclusion the “skirt” allegation, and the allegation the grievor was “enjoying himself”, were not supported by evidence of sufficient quality to assist in proving the employer’s case.

46Finally, I note that Perry testified that the “grinding” comment was made to her, not to the inmate, and that comment, even assuming it was made, did not support the employer’s allegation of sexualized comments being made to the inmate.

47The actions of the three COs who responded to the situation, Toulouse, Perry, and Brewer, were also puzzlingly inconsistent with the conclusion that there was a clear protocol or practice in place or that the grievor had engaged in obvious misconduct. The three COs all stated that when a female inmate was exposing herself to a male CO, that CO should be switched out. They did not explain, however, why they did not initiate action to relieve the grievor immediately upon discovering what was happening or seek the input of the manager in charge for guidance. It was somewhat surprising that Brewer could not recall what she did after seeing that the inmate was undressing. All three observed what was happening, then left the grievor at his assigned post, even though they were aware that he was on constant watch and required to watch the inmate continuously in case she passed contraband.

48After reviewing the video of the events numerous times, I am persuaded that the video tends to undermine the employer’s case, while supporting the grievor’s version of events. Although the video does not include sound, the grievor’s actions around the incident are consistent with his evidence. When the inmate begins to pull down her pants, the grievor is seen looking down or away, moving away from the cell, and starting down the passage to the hallway repeatedly. This was consistent with his evidence that he felt he could not maintain a constant watch while preserving the dignity of the inmate. He is seen leaving the area and heading to the hallway very shortly after the inmate began to undress. This was consistent with his evidence that he moved toward the hallway outside the segregation area to get help by calling out in an elevated voice that the inmate was taking her clothes off. The grievor is seen looking in the direction of the security camera and raising his hands in a gesture of apparent frustration more than once, consistent with his evidence that he thought someone would be monitoring the live security feed and they might respond to his gesture. Although the grievor had been assigned to a constant watch, his actions showed that his reaction to the inmate’s behaviour was such that he could not follow his assigned task. The grievor’s actions as captured on the security recording suggested he was uncomfortable and looking for ways to get out of the situation. In effect, his actions appeared to be consistent with the spirit of the practice alleged by the employer, i.e. he was attempting to avoid putting himself and the inmate in an improper circumstance. In my view, the video evidence offers corroboration of the grievor’s story and is not consistent with the employer’s version of events.

49It is also worth considering the video that was not retained. The video from the hallway outside segregation might have shown who was there and how they reacted or failed to react to the grievor’s callout that the inmate was “getting naked.” In addition, a review of the video feed leading to McDougall’s office might have identified the author of the anonymous note and allowed the union the opportunity to inquire into that person’s motives in writing such a note. One cannot escape the conclusion that the employer’s investigation was flawed. Rather than being focussed on gathering all available evidence in order to find out what happened, it appears the investigation was focussed on gathering information that would tend to support the allegations in the anonymous letter left for McDougall.

50The employer suggested the grievor could not be believed because he never articulated to his colleagues that he needed “help” or that he wanted to be “relieved”, in the sense he never used those words. That appears to be true, but Brewer confirmed the grievor shouted into the hallway that the inmate was “getting naked”, and that was why she went to the segregation area. The video confirms this sequence of event, in that it shows the grievor going toward the hallway and shortly thereafter Brewer arriving in the segregation area. The employer has not proven the grievor had any other method of seeking backup than by calling out. I am not concerned about the words he used. Clearly Brewer understood there was a need for her to respond. Calling to the hallway was the best and only means he had to get help, and it proved effective in getting attention, if not immediate assistance, from his co-workers. Lucas was, therefore, incorrect when she concluded the grievor had not sought help once the inmate started to undress. The video indicates he sought, and obtained, the attention of his colleagues almost immediately. If, as the employer argued, the policy on inmate nudity was clear to all, the information provided by the grievor when he shouted into the hallway was sufficient for anyone who heard to understand that the grievor had to be relieved. It should be noted as well that the grievor calling attention to the situation in any manner was not consistent with the employer’s allegation that the grievor had formed an intention to engage in misconduct for prurient purposes or that he had watched the inmate for a lengthy period of time without seeking assistance.

51Obviously, the employer does not require a specific policy to discipline a CO for engaging in sexualized communication with or in any way sexually exploiting an inmate. However, the employer has not proven the grievor did so. Common sense and common decency would suggest that it would be appropriate to relieve a CO who was suddenly confronted with a nude or partially nude inmate of the opposite sex. The grievor took steps to communicate to his co-workers that he wanted backup of some kind. His co-workers were slow to respond and, ultimately, made accusations against him that were not substantiated by the evidence.

52As already mentioned, during the incident the female COs involved are seen entering the area of the segregation cells where the grievor was stationed several times, and then leaving, even though they were aware that the grievor was left alone for several minutes with a partially naked female inmate while ostensibly being required to maintain a constant watch. There was no evidence the grievor took any steps to force them to leave the segregation area. If the practice or common sense approach with respect to inmate nudity was as clear as the employer suggested, one or all of the female COs should have taken immediate steps to relieve the grievor from a situation he had not created. Lucas confirmed that any one of them could have remained in the segregation area until a supervisor took charge. The other COs had radios on them and could have contacted a supervisor and sought the instructions and input they required to rectify the problem. There was no explanation as to why this was not done, and no evidence that the female COs considered or discussed the idea. Instead, they appear to have blamed the grievor and left him in his predicament longer than was necessary. I note that none of the other employees were reprimanded or disciplined with respect to their handling of the incident.

53The employer has failed to prove that the grievor watched the inmate masturbate or that the grievor engaged in sexualized conversation with the inmate. The evidence does not support the employer’s first allegation set out in the letter of termination. My conclusion is that the employer has failed to prove on a balance of probabilities that the grievor engaged in any culpable misconduct with respect to the incident of April 26, 2021.

54With respect to the second allegation, the documentary evidence shows that the grievor engaged in insubordinate and inappropriate communication with his supervisors. He made unfounded allegations and used threatening language in response to a pay issue that Lucas acknowledged as an employer error. The grievor was under some pressure at the time and his mental health was questionable. However, his apology during the hearing was not sufficient to mitigate the significance of the insubordinate email of December 22. In effect, he apologized for using threatening language but endorsed and maintained his view that the rest of the email was correct. He did not appear to appreciate that he had engaged in misconduct when he ascribed unproven motives and made serious allegations against his managers. The grievor had the right to believe whatever he liked about the motives and actions of his managers. When, however, he expressed his view in an open manner as he did in the December 22 email, he crossed the line into insubordination and that was misconduct worthy of discipline. Had the grievor made a full apology that showed he understood what he did was not acceptable, I might have been persuaded to reduce the penalty to a written warning, particularly given the circumstances and the state of the grievor’s mental health. However, he gave his testimony on the December 22 email many months after the incident, after he had had ample time for reflection, and instead of addressing his misconduct, he doubled-down on many of his inappropriate comments. Given these considerations, it is my view that a three-day suspension is appropriate.

55There were a number of emails, in addition to the December 22 email, that were put into evidence. These emails showed that the grievor has a propensity to express positions with his employer that demonize the motivations of his managers in an aggressive and unacceptable manner. This created a serious question in my mind as to whether it would be most appropriate to accept the employer’s alternative submission that payment-in-lieu would be a suitable remedy in this case. The option of compensation in lieu of reinstatement is to be used sparingly, and only where it is clear that the employment relationship has been extinguished. It was not easy to decide whether the grievor should be reinstated. He had the right, of course, to state his position, but the law expects that in the workplace he must do so in a manner that is respectful of his managers and co-workers.

56I have weighed other factors that support a finding that the grievor should be returned to work. I accept the union submissions that the employer’s review of the settled discipline from June 2021 was improper. The parties settled the grievance by agreeing that the discipline would be sunsetted, i.e. removed from the grievor’s file. The subsequent review of the discipline in the context of later discipline was clearly extremely inappropriate and a violation of that settlement. Arbitrators have a duty to protect and enforce such agreements in order to support the trust necessary for the parties to resolve issues. The viva voce evidence from Lucas asserting that the documentation about the settled discipline was not relied upon is not sufficient. Under the terms of the settlement, it should not have been reviewed at all. I was impressed by the fact that the grievor had a promising start to his corrections career and that he has had significant difficulty finding work since his termination. I accept Mr. Holmes’ submission that the grievor has invested himself in his career and it would be a significant setback if he could not attempt to rebuild that career. Given these considerations, it does not seem reasonable to terminate the grievor’s career based largely on an incident where the grievor was wrongly accused of serious misconduct, and where he was put through the anguish of termination after a flawed investigation.

57A few comments are in order about the emails sent by the grievor around the attempts to schedule the disciplinary meeting. The emails contained insubordinate and inappropriate comments by the grievor. However, I accept the union’s submission that these were not relied upon by the employer with respect to the termination – they are not listed in either allegation. The request for the grievor to attend a disciplinary meeting was problematic because, at the time, the only medical evidence the employer had with respect to the grievor’s ability to attend such a meeting was the October 2021 report, which indicated he should only attend meetings intended to accommodate his medical condition, or to arrange for transition to another department or ministry. It was, of course, open to the employer to challenge the medical restrictions on disciplinary meetings in the October report. It is questionable whether a medical restriction could, in effect, stipulate that the grievor was ready to return to work but could not be subject to being managed in the workplace. The employer would have had reasonable grounds to seek clarification of the restriction and to ask for more detailed medical justification. It might have been reasonable for the employer to decline to return the grievor to the workplace in the face of such a restriction. However, it was arbitrary and unreasonable for the employer to treat the October medical report as if it had been wholly abrogated by the November report, given that the latter did not specifically address the issue of the ability of the grievor to attend meetings and given that the employer relied on information in an August medical report. In my view, the October medical restriction with respect to meetings remained active, and valid, unless and until it was changed by a further medical report or challenged by the employer. During the period when the employer was attempting to set up the meeting the grievor was right to point out that such a meeting would have contravened the October medical restriction.

58The problem for the employer is that all of these communications had taken place before the grievor was terminated. The employer did not rely on them to justify the termination but chose to rely only on the December 22 email. There was a reference to the difficulty of setting up the meeting but not the insubordinate nature of the grievor’s communication. It would not be appropriate for the employer to attempt to expand on the reasons for termination by adding in allegations that were known but not relied upon at the time of termination, or to attempt to use them for some ancillary purpose. These circumstances can be distinguished from other cases where post-discharge behaviour may be factored into the consideration of mitigation of penalty or in deciding whether payment-in-lieu is to be preferred to reinstatement.

59In the result, the grievance is upheld. However, the grievor should be on notice that he will not survive long in any position or location if he continues to interact with his managers and co-workers in a defiant and aggressive manner. His future success will depend upon him taking all steps necessary to ensure he learns to deal with conflict professionally and with respect for others. Given the history between him and Lucas, it would be reasonable to look for a position where they will not be working together but it is best for the parties to discuss the precise arrangements to be made for the grievor’s return to the workplace.

60The grievor is reinstated effective the date of this award and is entitled to full compensation under the Collective Agreement retroactive to the date of termination, less the three-day suspension and any income earned in mitigation. I remit the issue of compensation and the details of his return to work to the parties for discussion and resolution but remain seized with respect to any issues arising from the implementation of this award. I note in particular that the employer reserved the right, should the grievor be reinstated, to pursue the issue of the grievor’s duty to mitigate his damages, and I confirm that both parties will be free to make submissions on that issue should they be unable to resolve the issue of compensation.