P-2005-2315

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mark Keating

Grievor

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE GRIEVOR

Andrew Camman & Jamila Mather Polishuk Camman & Steele Counsel

FOR THE EMPLOYER

Suneel Bahal, Counsel Ministry of Government Services from the November 14, 2007 hearing dates Fateh Salim, Counsel Ministry of Government Services through the July 12, 2007 hearing date

FOR THE ATTORNEY GENERAL CONFERENCE CALL HEARINGS

Mathew Horner, Counsel On August 28 & 29, 2008. May 31, 2007. March 7, April 23, April 30, May 1, July 12, November 14, November 15, 2007; March 11, March 12, March 13, April 8, August 28, August 29, 2008.

Decision

1This decision deals with Mark Keating’s grievance contesting his discharge from his position as Operational Manager at the Windsor Jail.

Overview of factual background

2The grievor was charged with criminal harassment on July 2, 2005. Around midnight on July 1, 2005, he had parked near the home of a woman of his acquaintance, and sat in his car in the dark looking towards her home through binoculars. A neighbour noticed him doing this, and called the police. The woman was not a Ministry employee, or shown to be connected to the institution other than indirectly through her personal relationship with the grievor. She will be referred to as Ms. S in this decision as there is no need to further personalize or publicize her accidental involvement in this employment dispute.

3A newspaper report of the charges linked the grievor to his employment at the jail, and previous allegations of sexual harassment from women employees.

4The grievor was suspended with pay pending investigation from July 4, 2005 to September 19, 2005 when he was discharged.

5On the advice of his criminal lawyer concerning his right not to incriminate himself, the grievor participated in the investigation by the Ministry, but limited his answers to basic information about the charges and court dates, which the employer found uncooperative.

6Based on the results of the investigation, as well as previous discipline flowing from breaches of the Workplace Discrimination and Harassment Policy (WDHP) in regards to women in the workplace, and having lost faith in his ability to carry out his job functions, the superintendent discharged him for cause as he found the following allegations to have been substantiated:

“That on July 2, 2005 you committed a serious breach of trust inconsistent with

your role as an Operational Manager. The Windsor Police Department has charged you with a criminal offence. The nature of the charge is such that it presents a serious risk to the legitimate concerns of the employer and constitutes

a breach of the Ministry Policy/Adult Institutional Policy and Procedures/Staff Conduct and Discipline — (ADI - Section Employees/Staff Conduct/Staff Conduct and Discipline — 0ff-Duty Behaviour, page 2).” and that

“You conducted yourself in a manner that brought disrespect to the Government of Ontario, The Ministry of Community Safety and Correctional Services, the

Windsor Jail and all the staff associated with the aforementioned” and that

“On July 20, 2005 you failed to cooperate with an investigator appointed under

Section 22 of the Ministry of Correctional Services Act contrary to section 22(1) of the Ministry of Correctional Services Act and Ministry Policy/Adult Institutional Policy and Procedures - (ADI - Section Employees/Staff Conduct/Investigations, page 3).” .

7The grievor was acquitted of the charges about two years after his discharge, and maintains that his off-duty conduct was not sufficiently related to his work to attract discipline, much less discharge. This background will be elaborated as necessary below.

The Issues

8The facts of this case pose a number of issues, which will be dealt with in turn:

i. Did the grievor have a constitutionally protected right to remain silent in the Ministry’s investigation of his off-duty conduct which lead to the criminal charges (the “constitutional question”)?

ii. Was his conduct in the investigation deserving of discipline?

iii. Was his off-duty conduct in the binoculars incident deserving of discipline?

iv. Was discharge an excessive response, given all the factors relevant to mitigation of penalty?

v. If discharge was excessive, what alternative disciplinary measure is appropriate?

The standard for discipline of a managerial employee

9Before dealing with the issues, it is appropriate to underline that this case involves a grievor who was employed as an Operational Manager, the first level of management outside the bargaining unit. This Board has held that the legal standard employed by the PSGB in regards to discipline of a managerial employee is the same as in other areas of labour and employment arbitration, i.e. the disciplinary action has to be established on the balance of probabilities, on clear and cogent evidence, and viewed in the context of the job requirements and expectations of a manager, which are legitimately higher than those of the average bargaining unit employee. See Glenn Morrison v. The Crown in Right of Ontario (Ontario Human Rights Commission), December 8, 1998, PSGB #0037/94, 0037/95 (Lynk). The Supreme Court of Canada has recently affirmed that there is only one civil standard of proof, i.e. proof on the balance of probabilities, and that "evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test." The context and the serious nature of allegations and consequences are relevant, but do not change the standard of proof. See F.H. v. McDougall, 2008 SCC 53.

Statutory Provisions and case law

10There are a number of statutes that bear on this matter, as the facts arise in the highly regulated environment of a correctional institution and the issues raised engage the interaction of the provincial regulatory environment with criminal law and the Charter of Rights and Freedoms. For ease of reference, the main statutory provisions referred to in argument are appended to this decision, and merely noted here:

From the Ministry of Correctional Services Act, sections 5, 10 and 22

From the Public Service Act, section 22

From the Criminal Code of Canada, sections 2 and. 264(1)

From the Charter of Rights and Freedoms, sections 7 and 11

Counsel filed a significant amount of jurisprudence, all of which I have considered even if not specifically discussed below. A list of the authorities referred to in argument is appended to this decision as well.

The Constitutional question – Scope of s. 22(1) of the Ministry of Corrections Act

11Flowing from a difference in positions as to the grievor’s right “to remain silent” during the workplace investigation which followed the charges, the parties agreed during final argument that Notice of a Constitutional question should be given to the Attorney General, and the hearing was adjourned for that purpose. Grievor’s counsel gave notice that the grievor intended to question the applicability of the Canadian Charter of Rights and Freedoms to s. 22(1) of the Ministry of Correctional Services Act, R.S.O. 1990, c. M. 22 in relation to an act or omission of the Government of Ontario.

12For the portions of this decision dealing with the investigation, some additional facts are necessary. It is not disputed that the grievor furnished an incident report on request, which complied with the following portion of the employer’s Adult Institutions Policy and Procedures Manual (ADI), which sets out procedures to follow for employees charged with criminal offences:

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

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

a. the nature of the offence;

b. whether or not the offence occurred in the course of employment with

Correctional Services; and

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

13Further, the transcript of the interview conducted by the Correctional Investigation and Security Unit (CISU)’s Inspector Mark McGillis shows that the grievor attended with Mr. Camman as his representative, and indicated his intention to be cooperative, answering the inspector’s questions until Mr. Camman intervened. By that point in the interview, Mr. Keating had indicated that Ms. S was someone he had known, and was not connected to the institution, as well as the fact that he was not confident that any statement he made to the inspector would not show up in criminal court.

14The last question asked by the inspector before he ended the interview with the grievor related to the nature of the grievor’s relationship with Ms. S, to which Mr. Camman objected, asking what relevance that had to the institution, the grievor’s work or the security of the institution. When it became clear Mr. Camman was going to object to any further questions concerning details of the circumstances leading to the charges, and that Mr. Keating was not going to answer questions against his lawyer’s advice, the inspector concluded the interview and rendered his report without further input from Mr. Keating. His report indicates that Mr. Keating was advised that as a consequence of his decision not to answer further detailed questions, the investigation would continue without the benefit of his response. Inspector McGillis explained in his testimony that the interview was Mr. Keating’s opportunity to provide contrary evidence and that if Mr. Keating had provided information which conflicted with other evidence, further investigation might have been called for. As Inspector McGillis had already interviewed Ms. S and the man who had called the police prior to interviewing Mr. Keating, their unchallenged view of matters was left as the main factual basis for the inspector’s report and of Superintendent Wasylyk’s decision to discharge the grievor.

15The inspector knew through the offender tracking system that the person who called the police had spent a few days in the Windsor Jail. However, he said he did not feel a need to put that fact in the report because the information the man had given was basically the same as the information from the police and the man had indicated he did not know Mr. Keating. Grievor’s counsel made the point in cross-examination that it might have been relevant to know whether the grievor and this man had had anything to do with each other in the jail, and that the inspector might have wanted to test the veracity of his statements. However, there was no other evidence at the hearing linking the neighbour to Mr. Keating or the jail, and accordingly, for the purposes of this decision, there is nothing more to be made of the fact that the man who reported him to the police was a former inmate.

16Inspector McGillis’ testimony and report indicate that the purpose of his investigation was to investigate the circumstances surrounding Mr. Keating’s being charged with criminal harassment. When he started his interview with Mr. Keating, he made it clear that although that allegation was the purpose of his interview with Mr. Keating “it should be understood that there may be other issues identified that may become subject to our discussion.” He made it clear that he had been appointed under s. 22 of the Ministry of Correctional Services Act, and that it was an internal investigation. As well, although Inspector McGillis agreed on cross-examination that the transcripts of his interview with the grievor could be subpoenaed, he thought that such information could not be used in court because the grievor would have been compelled to give the statement he gave.

17Section. 22(1) of the Ministry of Correctional Services Act provides as follows:

22 (1) The Minister may designate any person as an inspector to make

such inspection or investigation as the Minister may require in connection

with the administration of this Act, and any person employed in the Ministry

who obstructs an inspection or investigation or withholds, destroys, conceals

or refuses to furnish any information or thing required by an inspector for the

purposes of the inspection or investigation may be dismissed for cause

from employment.

This wording is reflected in the Adult Institutions Policy and Procedures Manual (ADI) concerning Staff Conduct and Discipline, which contains a list of examples of unacceptable conduct, including paragraph (f), which reads as follows:

f. obstructing an investigation or inspection or withholding, destroying, concealing or refusing to furnish any information or thing required by an inspector for the purposes of an investigation or inspection under the Ministry of Correctional Services Act.

18Inspector McGillis confirmed with the grievor that he had received and read the CISU investigation protocol, a two page document containing an excerpt from page 3 and 4 of “Investigations under the MCS Act”, a section of the Adult Institutions Policy and Procedures Manual (ADI), which an inspector is to provide to the employee subject to an investigation. That document provides the following:

If the employee refuses or does not wish to make a statement or fails to attend an interview when requested; the inspector has authority under the Ministry of Correctional Services Act to insist that the employee provide any information or thing required by an inspector for the purposes of the inspection or investigation. The employee will be cautioned that failure to comply with the request of the inspector may give just cause to discipline or dismiss the employee.

There is no indication in the evidence that the inspector insisted or warned the grievor in the manner set out above, or that he was of the view that his investigation was hindered or obstructed by the grievor’s limited participation; the only impact he mentioned was on the grievor’s opportunity to provide contrary evidence.

19The section of the ADI itself entitled “Investigations under the MCS Act” is four pages long and has a policy section which precedes the protocol extract which is given to employees who are to be interviewed. There is a line on the first page of the longer document entitled “policy” which provides as follows:

Employees shall provide all information requested by a ministry inspector in connection with an investigation conducted under the Ministry of Correctional Services Act.

It can be seen that this is a considerably broader statement than the one in s. 22(1) of the Ministry of Correctional Services Act, or the one set out above in the investigation protocol provided to Mr. Keating prior to his interview with the inspector. Given that the allegations which based the discharge reference s. 22(1) and page 3 of the ADI, they are the focus of this decision.

20Turning back to the constitutional issue, with the above factual background, the Grievor asserts in this part of the argument that he should not be dismissed on the basis that he failed to provide information to the Inspector appointed under s. 22 of the Act because:

a) The predominant purpose of the Inspector’s investigation was to determine the Grievor’s criminal liability, and

b) Once the investigation became criminal in nature, the requirement that he provide information to the Inspector constituted a violation of his right to silence, as guaranteed by ss. 7 and 11(c) of the Charter.

21The position of the Attorney General and the employer is that the Grievor had no right to refuse to answer the inspector’s questions because:

a) This was not a criminal investigation, and

b) In any event, Charter s. 7 is not engaged by an investigation under s.

22 of the Ministry of Correctional Services Act.

22Counsel for the grievor argued that the s. 22 investigatory power does not authorize the investigation of alleged criminal conduct that took place outside the institution that does not involve inmates, ex-inmates or employees, unless it directly relates to the institution. The position for the grievor is that the Investigator had no authority to compel additional disclosure from the Grievor about the allegations of the criminal charge pursuant to section 22 of the Ministry of Correctional Services Act. More specifically, it is argued that, after receiving sufficient disclosure in the form of an incident report that met the requirements of the employer’s policy, as well as answers to the investigator’s initial questions, the Investigator attempted to use his inspection/investigation and compulsion powers for the predominant purpose of furthering the criminal investigation of the Windsor Police Service, and thus breached the grievor’s right not to incriminate himself. It is submitted that the Grievor then justifiably asserted his protections under the Charter. Counsel for the grievor relies on R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, at para. 96, where the Supreme Court of Canada stated that the full panoply of Charter protections applies once the predominant purpose of an inquiry is the pursuit of penal liability.

23Further, counsel submits that s. 22 (1) of The Ministry of Correctional Services Act is not designed to create a human resources investigatory power. The charge of criminal harassment in this case essentially deals with at worst, an allegation of domestic violence, which would not normally threaten the security of an institution and should not therefore be subject to investigation beyond the reasonable assessment of such security risk if any. In any event, the advice of his counsel constitutes a reasonable excuse for not complying with the demands of the investigator to answer questions which went beyond the security of the institution, in counsel’s submission. The Board is invited to conclude that the employer’s actions abused the s. 22 authority in an effort to obtain just cause to terminate the grievor.

24In response to the grievor’s argument, counsel for the Attorney-General submits that the grievor’s position is really one of statutory interpretation, rather than one of constitutional law. Moreover, he asserts that it is obvious that s. 22(1) cannot be relied on to compel answers for the purpose of assisting the police to gather evidence for a criminal prosecution. Nonetheless, if the purpose of the investigation is the effective functioning of the institution, including its security, the questions concerning off-duty conduct are authorized by s. 22(1) and may include inquiries into alleged criminal conduct. It is the Attorney-General’s position that the grievor cannot be shielded from legitimate inquiry into conduct that affects the facility, just because the same conduct may also give rise to a police investigation into criminal conduct.

[25] As to the Grievor’s claim to a Charter s. 7 right to silence, counsel for the Attorney General submits that it is not made out. This is because, while s. 7 of the Charter protects the right to life, liberty and security of the person, termination from employment does not deprive a person of any of those. Accordingly, a provision that permits an employee to be dismissed for failing to cooperate with a s. 22 investigation does not, for the purposes of s. 7 of the Charter, compel that person to cooperate with the investigation. Further, the right to silence arises as a principle of fundamental justice, being the principle against self-incrimination, i.e. that accused cannot be compelled to assist in their own criminal convictions. Section. 11(c) of the Charter, where the specific right against self-incrimination is articulated, is not applicable here because the Grievor has not been compelled as a witness in a criminal proceeding against himself, in the Attorney-General’s submission.

[26] Finally, counsel for the Attorney General argues that even if the protections of Charter s. 7 were engaged, it is not contrary to the principles of fundamental justice to require that a person respond to a regulatory investigation related to the operation of a correctional institution. A right to refuse to answer questions only arises if the predominant purpose of the investigation is to further a criminal proceeding. The Board is invited to find that there is no evidence that the predominant purpose of the investigation at issue here was to further the criminal prosecution of the Grievor, when such an investigation would be inconsistent with the purpose of s. 22 of the Act. Once it is established that off-duty conduct may be relevant in some circumstances, the Board cannot draw the inference, absent compelling evidence to the contrary, of which there is none, that the primary purpose of an investigation into the off-duty conduct of a correctional officer is to further a criminal investigation, in the Attorney General’s view.

27In the result, counsel for the Attorney General invites a finding that there is no evidence to suggest that the investigation in this case was not restricted to its administrative purpose, let alone that its predominant purpose was to further the criminal investigation, so that the Grievor cannot establish that he had a right to silence that constitutionally exempted him from his statutory obligation to cooperate with Inspector McGillis’ investigation under s. 22 of the Act.

28In addition to supporting the arguments of the Attorney General, counsel for the employer noted that the grievor could have sought a remedy from the courts if he thought he was being subjected to an illegal investigation in the sense of being outside the jurisdiction created by s. 22 of the Ministry of Correctional Services Act.

29In the view I ultimately take of the allegation of non-cooperation with the Ministry investigation, it is technically unnecessary to decide the constitutional question in order to deal with this portion of the grievance. Nonetheless, given the importance of the issue as expressed in the parties’ extensive argument, and the fact that the law has been well settled by the Courts, it is appropriate in my view to address the able submissions made by the parties on this issue.

30It is apparent from the terms of the Charter itself, and from the authorities referred to in the parties’ submissions, that there is no explicit “right to remain silent” in the Charter. Rather, there is an explicit right in s. 11[c] of the Charter not to be compelled to be a witness in proceedings against oneself in regards to an offence with which one is charged. Further, the principles of fundamental justice provided in the s. 7 protection of one’s right to life, liberty and security of the person have been found to include protections against self-incrimination in a criminal investigation. This has translated into the right of an accused person not to answer questions of police or others conducting criminal investigations, including if a regulatory investigation “turns into” a penal one. In this regard, the term “right to silence” is used, both in some of the case law and in more colloquial discussion, to fairly describe the right not to answer questions during a criminal investigation. Beyond that, the expression is a bit of a misnomer. Cases involving regulatory schemes make clear that regulatory regimes and any necessary investigations under those schemes may continue parallel to, but separate from, criminal investigations of the same facts. In those circumstances, obligations to furnish information to the non-penal, regulatory investigations continue, without a “right to remain silent” in the context of the administrative investigation. The fact that the right exists in the criminal arena means that documents and records have to be obtained through measures such as search warrants for the purposes of the criminal investigation, rather than being able to force the accused to provide them. See for example, R.. v. Fitzpatrick 1995 CanLII 44 (SCC), [1995], 4 S.C.R. 154, concerning the fisheries, and an obligation to furnish “hail reports” and fishing logs, R. vs. Jarvis 2002 SCC 73, [2002], 3 S.C.R. 757 dealing with income tax, and an obligation to furnish books and records to auditors, as well as R. v. March [2006], O.J. No. 664 (O.C.J.) in the corrections context.

31R. v. March, cited above, involved an investigation and search of a correctional officer under section 22 of the Ministry of Correctional Services Act and section 22 of Regulation 778, under that Act, which yielded quantities of cannabis and tobacco as well as a knife, all contraband in the jail. The court found that the Ministry has a right to investigate employees under s. 22 of the Ministry of Correctional Services Act and that the section is not unconstitutional or in contravention of s. 7 of the Charter. Further, the court made clear that the threat of dismissal contained in s. 22 does not constitute a compulsion, and that the investigations it authorizes remain administrative rather than penal. There is no authority before me that stands for the proposition that the March decision is not good law.

32Counsel for the grievor emphasized that the evidence established that there is a two-way flow of information between the police and the Ministry of Community Safety and Correctional Services, and that the Windsor Police had no legal means to force Mr. Keating to give evidence about his criminal charges at the time the Ministry’s investigation took place. Moreover, information sharing from the Ministry with police is specifically authorized by s. 10 of the Ministry of Correctional Services Act. In this regard, grievor’s counsel argued that the fact that the Ministry inspector had the crown brief without having to apply to court to get it means that he is an agent of the police.

33Having reviewed the evidence before me, I find that the questions the inspector asked Mr. Keating before he ended the interview do not establish that the purpose of the investigation was to aid the criminal investigation. Nor did his evidence, or any of the other witnesses’, support such a finding. As a result, I have no sufficient basis to conclude that Inspector McGillis’ investigation was undertaken to assist the police in a criminal investigation. Accordingly, I accept the attorney-general’s submission that there is insufficient evidence to find that the investigation undertaken by the Ministry was predominantly for the purpose of a criminal investigation, or that Inspector Gillis was acting as an agent for the police. I note that, although the evidence showed that Inspector McGillis had documents from the Windsor Police relating to the charge against the grievor, there is no evidence indicating that the Ministry provided any information gleaned through its investigation under s. 22, or that it would have done so, if further information had been obtained from the grievor. In any event, there was no evidence that there was any attempt by the police or the Ministry to use the fruits of the s. 22 investigation for the criminal investigation, and Mr. Keating was acquitted.

34As noted above, shortly before the interview with Mr. Keating ended, the inspector asked the grievor about the nature of his relationship with Ms. S, at which point Mr. Camman asked the investigator how the question related to the jail, but the investigator did not answer. There is no suggestion that the inspector was obliged to answer, and just as counsel do not always want to shed light on the ultimate goal of a question in cross-examination, in front of a witness, there may be sound investigative reasons to not disclose such information. Nonetheless, this may have been a missed opportunity to clarify on the record that the purpose of the investigation was not to further the criminal investigation, or to narrow the question in a way which made it clearer that the goal was to assess any risk to the institution rather than to conduct an open-ended inquiry into the nature and history of the grievor’s relationship with Ms. S., for instance. This is particularly so, since the grievor had already made clear that he did not trust that his interview would not show up in court during the criminal trial. There is no doubt that an employee who may be aware of both the potential flow of information to the police, and of the fact that job loss is a possible result for failing to provide information required for a s. 22 investigation, is in a very difficult position. It might well enhance the chances that an employee and his counsel would worry less about self-incrimination if some assurances were given. There is nothing on the record which suggests that any effort was made to assist the grievor or his counsel in providing the information sought without fear of compromise of his right not to incriminate himself in regards to the criminal charges.

35Counsel for the grievor asserted that the police would expect the investigation report in return for having furnished incident reports concerning the grievor to the Ministry, and that having the investigation report would assist the Crown and the police in anticipating defences. There was no evidence one way or the other about the circumstances under which information is shared by the Ministry with the police. However, if for instance, the fact is that the Ministry does not share information from employee statements taken under s.22 with the police once a criminal investigation has started, it is possible that letting someone in the grievor’s position know that fact would make it more likely the employee would answer more of the inspector’s questions. And, if it ever were the case that the inspector was acting as a criminal investigator, on behalf of the police, for instance, the case law stands for the proposition that full Charter rights apply, and that the inspector would be required to give the appropriate warnings, making it clear that the investigation was no longer a s. 22 investigation.

36On a related point, the Court made clear in R. v. Jarvis, cited above, that although simultaneous regulatory and criminal investigations may continue, the criminal or penal investigators are not permitted to avail themselves of information obtained from a regulatory audit obtained after the commencement of the criminal or penal investigation. This supports the argument advanced by counsel for the Attorney General, that the grievor’s protection lay in the area of what use could be made of any statements he made in the criminal trial, in light of the doctrines of use and derivative use immunity, not because of any right to remain silent in the s. 22 investigation. Of course, any question as to what use could have been made in the criminal trial of any statements made by the grievor to the ministry investigator would have been for the court to answer and is now moot because of his acquittal. Moreover, it is not necessary to speculate about this issue for the purposes of this decision.

37I have also considered the argument advanced on the grievor’s behalf that the matter was an improper investigation because it was a human resources investigation rather than an investigation relating to the security of the institution, but do not find it persuasive. Firstly, the permissible scope of investigations under s. 22 of the Ministry of Correctional Services Act is quite broad: such inspection or investigation as the Minister may require in connection with the administration of this Act. An investigation under s. 22(1) will thus be lawful if it is in connection with the administration of the Act, which would include carrying out its purposes. One of the core purposes of the Act is expressed in s. 5(b), i.e. to establish, maintain and operate correctional institutions. I cannot accept the proposition that an investigation which includes human resources purposes falls outside of that purpose, since without the appropriate human resources, the institutions cannot be maintained and operated. Further, I agree with the submission made by employer counsel that the security of the institution is a dynamic matter, involving the people who go in and out of it, every bit as much as the walls which confine the inmates. Further, whether or not the activity of the grievor which lead to the criminal charges compromised the security of the institution or the grievor’s capacity to continue working there are legitimate questions for the employer, the answer to which could not be known without investigating. In the result, I find the investigation to have been within the bounds of s. 22 of the Ministry of Correctional Services Act.

38As I do not view the investigation carried out in this matter as a criminal or penal investigation, the answer to the question: “Did Mr. Keating have a Charter right to remain silent in the face of Inspector McGillis’ questions?” is “no”. Quite apart from the fact that the case law from the courts on this question is clear, the opposite conclusion, sought by grievor’s counsel, risks reducing the obligations under s. 22 of the Ministry of Correctional Services Act to an obligation to answer only those questions approved by the person being questioned or his or her lawyer. This would run the risk of reinforcing the Code of Silence so eloquently described in the recent decision of the Grievance Settlement Board in Ontario Public Service Employees Union (Gillis et al.) v. The Crown in Right of Ontario, (Ministry of Community Safety and Correctional Services) (May16, 2008), GSB# 2003-1520 et. al., 2008 Can LII 26249 (ON G.S.B.). This is not a question of trying to change the culture in the institutions at the expense of managers whose legal bills are not paid by the union or the Ministry, as argued by grievor’s counsel. Rather, it is an acknowledgment that s. 22 investigations are an essential tool for dealing with many issues arising in the course of the operation of correctional institutions.

39With that said however, I accept the proposition advanced on the grievor’s behalf that failing to answer all an investigator’s questions does not necessarily justify discharge. That question will be considered below together with the application of the investigation protocol in this case. Nor did employer counsel argue that discharge was automatic for every failure to answer and acknowledged that the Board had discretion as to penalty. He noted that although Inspector McGillis did not do so, it was conceivable that an investigation could exceed the bounds of the appropriate statutory purpose, in which case an employee could apply to court for injunctive relief.

Was the grievor’s conduct in the interview worthy of discipline?

40Given that I have found that the investigation was within the bounds of the of the Ministry of Correctional Services Act, and was not in pursuit of a criminal investigation, I find that the Ministry’s investigation of Mr. Keating was not improper, and thus the obligations under s. 22 do apply to him. The allegations against him include that he failed to cooperate with an investigator, contrary to section 22(1) of the Act, and Ministry policy concerning investigations. Mr. Keating told the inspector he would cooperate with him, and did answer some of the inspector’s questions, providing the nature of the charge, and certain information, such as the fact that Mr. Keating had been arrested and released on a Promise to Appear, and that Ms. S was someone known to him, who had nothing to do with the institution. The question then becomes whether in refusing to answer any questions beyond that he, was in contravention of s. 22(1), the wording of which is reflected in the policy, i.e. did he obstruct an inspection or investigation or withhold, destroy, conceal or refuse to furnish any information or thing required by an inspector for the purposes of the inspection or investigation?

41The employer’s position is that it is clear that Inspector McGillis was asking for information further to s. 22 of the Ministry of Correctional Services Act and that his inquiries pertained to the security of the jail. Moreover, counsel underlines that the legislative intention is clear that employees are required to cooperate, under risk of dismissal. Counsel argued that the grievor had been cautioned in accordance with the investigation protocol and had withheld information. Therefore, he should be found to have failed to cooperate, as it cannot be considered cooperation to furnish only the information the employer already knew. Accordingly, the employer’s position is that it is appropriate to rely on the grievor’s refusal to answer questions as a ground for dismissal. Giving a purposive interpretation to s. 22(1), employer counsel argues, involves recognizing that correctional employees have this obligation because of the nature of the work, the fact that they are peace officers, and the public trust resided in them.

42It is clear from the transcript of the inspector’s interview with Mr. Keating that he identified his authority under s. 22, and had provided the investigation protocol so that the grievor would have been familiar with his authority. Nonetheless, when the grievor indicated his intention not to answer any further detailed questions, on the advice of his lawyer, the inspector did not insist, as he had the power to do under the investigation protocol, the pertinent portion of which is set out above. And although the inspector made it clear that the investigation would continue without the grievor’s input, the explicit warning of the potential disciplinary consequences, which the protocol provides does not appear in the transcript. This leaves the situation quite open-ended, particularly as the last question asked was a very general question about the grievor’s personal relationship, which was not self-evidently related to the grievor’s employment. Most centrally, the evidence does not establish that the inspector actually required anything more from the grievor for the investigation. The inspector’s evidence indicated he saw the interview as an opportunity for Mr. Keating to give information contrary to the other witnesses, which he would then have compared to see whether further investigation was required. Although Mr. Keating’s behaviour cannot be characterized as full cooperation, the matter was not brought to a head, and the grievor was not put on notice that the inspector required more from him, and was insisting, as the protocol contemplates. Given how the interview ended, with a statement to the effect that the investigation would simply continue without further input from Mr. Keating, I am left unclear what, if anything, the investigator required that the grievor did not provide. I do not find that this amounts to clear and cogent evidence of a failure to cooperate within the meaning of s. 22 of the Ministry of Corrections Act. In the result, it is not my view that cause for discipline has been made out in this section of the case.

43Further, it is important to underline that this is not a case where it has been shown that the grievor was motivated by a desire to cover-up and deny obviously employment-related behaviour such as was the case in the Gillis decision, cited above, where the investigation was apparently actively obstructed. Rather, I accept that the grievor was acting on an honest belief that he was not obligated to answer the question about his personal relationship in the circumstances of this case. Despite the importance of s. 22 investigations, and the important goal of dealing firmly with cases of obstruction, each case must be dealt with on its own facts.

44With that said however, the failure of the grievor to explain his behaviour was not at all inconsequential. It meant that the superintendent made the discharge decision based on the account of the circumstances surrounding the criminal charges in the inspector’s report which contained many accusations from Ms. S, and did not contain the explanation the grievor gave both to the police that night and in his evidence before this Board, which had an important impact on how this case unfolded.

45We turn now to the second ground for discharge, the binoculars incident.

Was the off-duty binoculars incident deserving of discipline?

46To start, I note that although the basic facts of the binoculars incident are not in dispute, its meaning is very much so. What is common ground is that Mr. Keating had parked up the street from Ms. S’s house, on the same side of the street as her house, shortly before midnight on July 1, 2005 and, unbeknownst to her, was watching in the direction of her house with binoculars. He watched her leave her house in time for a midnight shift and walk towards the nearby seniors’ residence where she worked. A neighbour had noticed Mr. Keating using his binoculars for some time, and called the police. They came, arrested Mr. Keating, and interviewed both Ms. S. and the man who called the police. Beyond that, very little about the incident is uncontroversial.

47Chief among the issues about the meaning of the incident is whether the grievor and Ms. S were still a couple close to the time of the July 1 incident. They had, by all accounts, a tumultuous, “on again, off again” relationship starting sometime in 2003, which had included a few months of living together at Mr. Keating’s house between August and November of 2004. Both parties explored the issue of the status of the relationship on the night of the charges, which was relevant as to whether the grievor’s explanation for his presence there with the binoculars deserves any credence. Mr. Keating testified, as he had told the police on the night of July 1, that his reason for being there was to learn whether Ms. S was working a midnight shift that night. He knew from past experience that if she was working a midnight shift that she would get home at 8 a.m. the next morning and likely have the rest of the weekend off. To Mr. Keating, this meant he could try to talk to her on Saturday afternoon after she had slept. He testified that he was interested in picking a propitious time to attempt to talk to her directly in order to end the relationship once and for all.

48In response to an objection from grievor’s counsel to a question from employer counsel as to Ms. S’s reasons for moving out of the grievor’s house in the fall of 2004, I ruled that it was arguably relevant to the characterization of the events for which Mr. Keating was discharged to know whether the statement that Ms. S made in July to the police to the effect that the relationship had been over for several months was accurate. At the same time, I noted that although this would involve dealing with the couple’s relationship to some extent, it was not helpful to “try” the whole relationship, as what the grievor had been discharged for was the events of July 1, and not for being in a troubled relationship with Ms. S. Consistent with this approach, I have not detailed evidence about the relationship which did not bear directly on the grounds for discharge or issues of credibility.

49On the night of the binoculars incident, Ms. S told the police that her relationship with Mr. Keating had been over for months, and that she had last talked to the grievor in May around the time of the death of his sister, which occurred on May 20, 2005, about six weeks before the criminal charges. Ms. S gave a similar account to Inspector McGillis ten days later. To both the police and the Inspector, she gave accounts which portrayed the grievor, among other negative characterizations, as a harasser and stalker, bothering her when she did not want to see him. She indicated in her evidence that she had made it clear when she moved out of the grievor’s house in November 2004, that they were no longer dating and that the grievor was not to call her, except to let her know about his seriously ill sister. She said they had only spoken about three times between the fall of 2004 and July 1, 2005. At one point in cross-examination she said that as of July 1, she hadn’t heard from him in two months or longer, and that she had not called him.

50By contrast, the grievor testified that he and Ms. S were in regular contact after she moved out, including dating, such as having dinner together on New Year ’s Eve and on other occasions, visiting a financial consultant together in January, planning to go out on St. Patrick’s day and having frequent phone conversations, many of them initiated by her. In support of this evidence, phone records for the period from December 4, 2004 to June 21, 2005 were entered into evidence showing many phone calls involving her home and work phone numbers and one of the extensions at the jail where the grievor works, many of them lasting several minutes. Eleven of these calls are from Ms. S’ home number. Mr. Keating says that Ms. S also often called him on her cell phone, and then he would return the calls on a land line. Ms. S says she did not make the calls from her phone number, and that perhaps it was her daughters. The grievor testified that the incoming calls were definitely from Ms. S, and the calls from the jail of more than a few minutes to her number were conversations with her, while the ones under a minute could have been messages. He gave similar evidence about cell phone records showing outgoing calls from his cell phone to her phone number. There was no evidence supporting Ms. S’s statement that it might have been her daughters who were calling or talking to the grievor. Employer counsel argued that the records did not constitute evidence that Ms. S made the calls, or that the grievor’s calls were welcome.

51The dates of the longer calls tend to corroborate the grievor’s evidence. For instance, there are two long calls on December 30, which suggests there was at least significant contact shortly before New Year’s Eve when he says they went out together, as well as on March 17, when he says they had planned to go out, but had to stay in, as Ms. S was ill. As well, there are four calls between May 18 and 20, shortly before his sister’s death, when Mr. Keating says they were talking constantly because of the deteriorating situation with his sister, and Ms. S had been helpful with advice because of her work experience at the nursing home. By contrast, Ms. S. testified that there was only one call concerning the sister, in which Mr. Keating told her about the sister’s death, as that was the only exception she said she had allowed to her not wanting Mr. Keating to contact her.

52The uncontradicted evidence from Mr. Keating and his mother established that it was not known that the grievor’s sister was critically ill until the spring of 2005, months after Ms. S moved out of Mr. Keating’s house. This also tends to indicate that Ms. S’s evidence of a clean break in the fall of 2004, with communication about the sister’s critical illness as the only exception made at the time, was not entirely accurate.

53Mr. Keating testified that he helped Ms. S fix her air-conditioning on June 9 and 10, 2005. Ms. S conceded he had helped her when her air conditioning broke down in 2005, but could not recall when that was, although given that it had to be a warm month before July, she eventually agreed it had to have been in June. The grievor’s evidence that it was on June 9 and 10, about three weeks before the criminal charges, was corroborated by both a correctional employee, and the grievor’s mother. There was conflicting evidence about the extent of the couple’s intimacy on June 10, and in the time period leading up to it, which I find it unnecessary to resolve. Suffice it to say that I am persuaded that it is more likely than not that they were on good enough terms on June 9 and 10 that the grievor knew Ms. S’s air conditioning was broken, which presumes contact of some kind, and she let him fix it for her, as well as that she was at Mr. Keating’s house on the morning of June 10 when the other correctional employee testified he encountered her there and waited with her for Mr. Keating’s return from the store. It is now common ground that Mr. Keating needed to buy a cord for the air conditioning, and Ms. S gave him her bankcard and personal identification number so he could pay for it when he went out to get it for her. Whatever the different perceptions of the state of the relationship may be, this is far more recent, apparently consensual, substantive contact, inconsistent with what Ms. S. described to the police right before they charged Mr. Keating, later to Inspector McGillis and to the Board in her examination-in-chief.

54It is also now common ground that after Mr. Keating finished fixing the air conditioner, he and Ms. S had an argument. He says the argument was about the future of the relationship, including a statement from Ms. S that if he did not work on the relationship more, she would be moving in with someone else. Ms. S could not recall the content of the argument. The grievor says the argument resulted in his forgetting that he still had her bankcard in his pocket when he left her place. When he got home he realized he had it, called her, and left her a message that he would return it the next day. She replied with a number of increasingly upset phone messages threatening to call the police if he did not return the card immediately. When he did not show up immediately, Ms. S. called his mother to tell her to get him to return the card at once, or she would call the police. His mother contacted him right away, and he returned the card the same night. He acknowledges that he was quite angry by then, particularly as he had been trying to sleep to go into a midnight shift at the jail when Ms. S left her messages. The grievor’s evidence was that this incident so upset him, because it involved his mother when she was still grieving the recent loss of his sister, that he resolved to terminate the relationship once and for all with Ms. S. By this time, he had met someone new with whom he has since maintained a less volatile relationship, something also corroborated by his mother’s evidence.

55Despite the argument and upset on June 10, the evidence also establishes that Ms. S. called Mr. Keating on June 11 to ask a favour, seeking his advice and information on behalf of a relative who was having difficulties with someone who worked at the jail. He got back to her sometime later and they had a calm conversation. The relevance of this to the issues before me is that the grievor testified that the above sequence of events left the state of the relationship ambiguous, and that he wanted to talk to her to end it. Because of the acrimonious interaction of June 10, he did not believe that Ms. S would pick up his calls or tell him if he asked her directly about her schedule. He said this was why he decided to find out her schedule by watching for her departure for work.

56At the meeting prior to the discharge, the grievor told the superintendent that it was not true that he and Ms. S had broken up months before the binoculars incident, but there is no evidence that any of the rest of this detailed background was provided to the Ministry investigator or to the employer prior to the hearing. What Ms. S and the neighbour provided in their interviews with the police and the Ministry investigator added up to a quite negative portrayal of Mr. Keating’s behaviour in general, and on July 1, largely because she portrayed herself as having cleanly broken off the relationship in the fall of 2004 and his having bothered and followed her since. The evidence at the hearing, including from Ms. S, provided a much more complicated picture of a vexed relationship which had changed since she moved out of Mr. Keating’s house, but was current, at least as a mutual friendship, less than three weeks before the binoculars incident.

57In dealing with whether the Ministry had cause to discipline the grievor for his behaviour in the binocular incident, both parties organized their arguments around the factors known as the “Millhaven criteria” set out in Re Millhaven Fibres Ltd., Millhaven Works, and Oil, Chemical and Atomic Workers Int’l Union, Local 9-670, (1967), 1(A) Union-Management Arbitration Cases, 328, [1967], O.L.A.A. No. 4 (Anderson) to the effect that if discipline is to be sustained from off-duty conduct:

... there is an onus on the Company to show that: --

(1) the conduct of the grievor harms the Company’s reputation or product

(2) the grievor’s behaviour renders the employee unable to perform his duties satisfactorily

(3) the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him

(4) the grievor has been guilty of a serious breach of the Criminal Code, thus rendering his conduct injurious to the general reputation of the Company and its employees

(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.

58It is of note that these criteria are paraphrased in the portion of the employer’s “Adult Institutions Policy and Procedures Manual” (the ADI) dealing with Staff Conduct and Discipline as follows:

Off -Duty. Behaviour

Unless the alleged act or misconduct negatively impacts the employers reputation, renders the employee unable to discharge his/her employment obligations, causes other employees to refuse or be reluctant to work with that person, or inhibits the employee’s ability to manage and direct the business operation efficiently, an employer may not properly discipline an employee for misconduct committed during the employee’s off-duty hours. In order to determine whether the employer has a legitimate and proper concern about an employee’s conduct away from the worksite and after working hours, the following questions of fact should be considered:

a. Was the employee’s conduct sufficiently injurious to the interests of the employer?

b. Did the employee act in a manner incompatible with the due and faithful discharge of his duty?

c. Did the employee do anything prejudicial or likely to be prejudicial to the reputation of the employer?

Should one or more of these questions be answered in the affirmative, the employee’s off-duty conduct is of legitimate concern to the employer and, depending on the gravity of the conduct, the employer will be justified in taking appropriate disciplinary action.

I agree with the view that it is not necessary for all five of these criteria to be fulfilled in order to sustain discipline. See for instance, Flewwelling v. Canada (F.C.A.), 1985 CanLII 3069 (FCA), [1985] F.C.J. No. 1129, (December 13, 1985).

59The letter of discharge stated that the nature of the charge is such that it presents a serious risk to the legitimate concerns of the employer, and is a breach of the Ministry’s policy on off duty behaviour, and that the grievor conducted himself in a manner that brought disrespect to the government, the minister, the Windsor Jail and its staff. Employer counsel cited Nova Scotia Government and General Employees Union v. Nova Scotia (Department of Justice) (MacAskill Grievance), [2003] N.S.L.A.A. No. 18, (December 10, 2003), at para. 66 for the proposition that it is not unreasonable for an employer in correctional services to expect its employees to keep outside the criminal process, to ensure that they can exercise their duties without fear of compromise, and that this is sufficient to create a nexus to employment in this case.

60Counsel for the grievor framed this aspect of the case in the context of whether the employer had demonstrated that the off-duty conduct constituted criminal harassment. In this respect, he referred to the provisions of s. 264 of the Criminal Code and argued that Ms. S could not reasonably have feared for her safety as she did not know she was being observed until the police told her and that the grievor engaged in this behaviour on a single occasion. Most importantly he argued that the grievor’s purpose was not to intimidate, but to inform himself of her work schedule so that he could choose a propitious moment to terminate the relationship, and he was not observing inside the house, but the front yard, so he could see when she left the house, rather than trying to invade her privacy while she was inside. As to the issue of damage to the employer’s reputation, counsel for the grievor submitted that it was hard to know what the reputation of the ministry and the jail was at the time, given that there have been a number of different kinds of problems in relation to respect in the workplace. In any event, counsel submitted that the charge against the grievor was not of a nature that would make the public think that the institution was dangerous or insecure, which would be the kinds of operational concerns that would be relevant. Given the facts of this case, counsel submits any impact is insufficient to support a termination or prevent a return to the workplace.

61Given that the grievor was acquitted of the criminal charges, it is clear that the fourth of the above criteria is not made out as the grievor is not guilty of any breach of the Criminal Code. Nonetheless, it is not my view that the employer is required to prove that the conduct amounted to criminal harassment in order for it to attract discipline. The discharge letter makes it clear that the employer found the behaviour blameworthy and related to his employment, whether or not the grievor was convicted of a crime, but reserved the right to rely on a guilty plea or conviction as independent grounds. Nonetheless, the fact that the grievor was ultimately acquitted, and thus remains presumed innocent of the crime, is relevant to the assessment of the gravity of the conduct, as well as the issue of whether the grievor could be successfully reintegrated to the workplace. The factors that counsel raised in support of the argument that the grievor’s behaviour could not have lead to a conviction on the charge of criminal harassment will be discussed as part of the assessment of the factors argued to favour mitigation of the penalty.

62In regards to the first of the Millhaven criteria, it is my view that the employer has succeeded in showing that the grievor’s conduct likely harmed the reputation of the Windsor Jail. I accept that this was not the grievor’s intention; he was likely far too focused on the intricacies of his personal life to have been considering the impact on his employer at all. But that is precisely the root of the problem. The grievor appears to have been oblivious to the fact that watching a neighborhood with binoculars near midnight is not something done in private, with no implications beyond his own state of mind or information about Ms. S. It was done on a public street, open to view, but in a manner that appeared surreptitious to the man who called the police, and open to many interpretations, none of them becoming to the reputation of the Windsor Jail or its employees, in particular its managers. The man who called the police reported that he was concerned that the grievor was scouting out the houses in order to do a break-in. Ms. S connected the behaviour to other incidents in which she said the grievor had watched her residence, or engaged in unwelcome, overly controlling behaviour and drew the conclusion that he was trying to look inside her apartment. The police concluded that he was engaged in criminal harassment, based on the interviews with the man who called them and Ms. S, as well as reports in their own records that the relationship between the grievor and Ms. S had resulted in calls to the police twice in 2004, once from Ms. S’s daughter on January 28, and once from the grievor on February 27.

63I note that despite the fact that Ms. S gave evidence at length, it did not deal with her reports to the police and Inspector McGillis of other incidents of unwelcome observation. Given that they are thus unconfirmed, and given the concerns discussed above about the accuracy of Ms. S’ account of other events, the only incident of observation of Ms. S of which I have clear and cogent evidence is the one of July 1, for which he was charged. In any event, in deciding to watch her residence that night, Mr. Keating was leaving himself open to all the interpretations mentioned above, as well as to the conclusion drawn by the superintendent of the jail that his behaviour was escalating into the criminal realm, which was incompatible with his status as a peace officer and that accordingly he could no longer be trusted to effectively manage a correctional institution.

64Employer counsel relied on British Columbia (Workers’ Compensation Board) v. Compensation Employees’ Union (Campbell), 64 L.A.C (4th) 1997 pg.414, as authority for the proposition that direct evidence of loss of reputation may not be necessary, together with the fact that Mr. Keating acknowledged on cross-examination that the Ministry’s reputation might have been “dented” by the incident. I am of the view that the likelihood of some actual harm to the reputation of the jail is proven by the newspaper article entitled “Jailer faces stalking charge” which appeared in the local press on July 8, 2005, and recounted the history of the grievor’s difficulties with allegations of sexual harassment, which it described as spearheaded by OPSEU, and the fact that other staff apparently became aware of the reports. This creates a sufficient nexus to the workplace to make the behaviour of legitimate concern to the employer and thus the employer has established a basis for some discipline. As well, the risk of a conviction for criminal harassment was very relevant to the employer’s operations, both because of the potential that a criminal conviction would impact negatively on the grievor’s capacity to credibly deal with inmates, and because of its connection to the grievor’s behaviour to women, which had already become an issue at the workplace.

65The remaining Millhaven factors are less straightforward, and involve considerations which can be conveniently discussed as part of the discussion of whether the penalty of discharge was excessive in all the circumstances, the question to which I now turn.

Was discharge an excessive response, given all the factors relevant to mitigation of penalty?

66Concerning the two grounds for discharge, I have concluded above that the allegation of non-compliance with s. 22(1) of the Ministry of Correctional Services Act has not been made out, as well as that the binoculars incident could properly attract discipline, as a sufficient nexus between work and the off-duty conduct has been shown. The next question is whether discharge was an excessive response in all the circumstances. Employer counsel accepted the Board’s discretion in this respect, in the context of the portion of the argument referring to the reference in s. 22(1) Ministry of Correctional Services Act to just cause for discipline. Further, he and grievor’s counsel addressed the factors set out in arbitral precedents dealing with whether or not the arbitrator should find discharge excessive and substitute some other penalty. There are a number of non-exhaustive lists of criteria in cases such as Re United Steelworkers of America, Local 3257 and the Steel Equipment Co. Ltd. (1964), 1964 CanLII 984 (ON LA), 14 L.A.C. 356 (Reville), Wm. ‘Scott & Company Ltd [ 1977] C.L.R.B.R. 1 (Weiler) and Canadian Broadcasting Corporation and CUPE, (1979) 1979 CanLII 4015 (CA LA), 23 L.A.C. (2d) 227 (Arthurs). These are convenient summaries of significant and appropriate considerations for the exercise of arbitral discretion, which I view in the same light as the following quotation from the CBC case, cited just above, at p. 231:

.. these factors, while helpful, are not components of a mathematical equation whose computation will yield an easy solution. Rather, they are but special circumstances of general considerations which bear upon the employee's future prospects for acceptable behaviour, which is the essence of the whole corrective approach to discipline. How well or badly the grievor had behaved in the past is some indication of his likely future behaviour. How aggravated or trivial was the offence is some clue to the risks the employer is being asked to run if the grievor is reinstated in employment. And how seriously the discharge will affect the grievor is at least one (but not the only) measure of whether a reasonable balance is struck between the other two considerations

Although any of the lists can be used, it is convenient to use the one set out in the Wm. Scott case, which starts with the central issue of how serious the behaviour is, and which the PSGB has previously referred to as useful in reviewing discharges for cause. See, for instance: Hardy v. Ontario (Ministry of Health), 1997 CanLII 10280 (ON P.S.G.B.) (Leighton). Those are the following:

(i) How serious is the immediate offence of the employee which precipitated the discharge?

(ii) Was the employee’s conduct premeditated, or repetitive; or instead, was it a momentary and emotional apparition, perhaps provoked by someone else?

(iii) Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history?

(iv) Has the employer attempted earlier and more moderate forms of corrective-discipline of this employee which did not prove successful in solving the problem?

(v) Is the discharge of this individual in accord with the consistent policies of the employer, or does it appear to single out this person for arbitrary and harsh treatment?

(i) How serious is the immediate offence of the employee which precipitated the discharge?

67In addressing the severity of the binoculars incident, Employer counsel noted that the grievor, like all correctional officers, is a peace officer on and off duty. Accordingly, he should be held to the obligation to maintain the dignity of that office. Moreover, the policy of the employer requires that employees of the ministry occupy a position of public trust and are expected to conduct themselves in a responsible, professional and law-abiding manner, both in the performance of their duties and in their personal lives. He noted that, although repeated behaviour is necessary for some forms of criminal harassment, a single incident of watching a dwelling place with the requisite intent will suffice to make out the offence.

68It is clear that the superintendent found the incident very serious, viewing it as threatening behaviour escalating into the criminal realm, although he acknowledged that it was not as serious as if there had been an actual assault. As well, it is clear that part of the superintendent’s considerations when discharging Mr. Keating included that the man who called the police reported having seen the grievor parked on the street before, and that Ms. S had reported seeing the grievor on other occasions on the street. However, he said it would not have made any difference if he had not been there on other occasions, that the single occasion was enough. He considered that the grievor had “crossed the line”, and that it was totally inappropriate for a manager in a jail to behave this way, whether or not he had been charged or convicted criminally. He noted that the job expectations of an Operational Manager include that on evenings and weekends, it is not uncommon for an Operational Manager to be alone in charge of the Windsor Jail, which houses inmates and employs staff of both genders.

69The idea that the grievor was resorting to surreptitious observation of Ms. S troubled the superintendent for a number of reasons, including what it said about the grievor’s judgment. As well, the grievor’s representative attempted to justify it at the disciplinary meeting on the basis of the idea that, as a corrections employee, he is trained to observe people, and that is “all” he was doing. And that explanation is troubling to the Board as well, whether seen as an unwelcome, inappropriate, use of employment related skills, and in particular skills aimed at custody and control, in a personal relationship, or as a symptom of a less then wholesome approach to women in general. Moreover, as employer counsel noted, anyone would feel uncomfortable being watched in this manner. Further, it was a further allegation of harassment of women, albeit off-duty, in the context of a disciplinary record which included a ten-day suspension for a reprisal against a woman for launching a harassment complaint against him (albeit one that was eventually found to be unsubstantiated). More will be said about the disciplinary record below.

70Nonetheless, there are a number of aspects of the facts that make it difficult to put the incident at the most serious end of the spectrum of behaviour in its category, i.e. stalking, or harassing behaviour to women, as for instance would have been a stalking conviction for criminal harassment or behaviour with proven intimidatory purpose. An important factor in assessing the severity of the incident is that the grievor was acquitted of the criminal charges. Thus, as a matter of law, the behaviour is not criminal. And it was clearly off-duty, a fact which as noted above, indicates an approach which starts from the premise that it is not in the employer’s purview, unless a clear nexus can be shown to the employer’s operations.

71The employer’s position is essentially that notwithstanding the acquittal, the grievor’s behaviour amounted to harassment or stalking. The response on behalf of the grievor is that although the grievor’s approach was misguided, he was trying to be unobtrusive by parking down the street, rather than trying to get Ms. S’s attention or bother her and that the physical position of the car would have made it impossible to look inside the house. The objective evidence does support this latter point, as the grievor’s car was parked on the same side of the street as Ms. S’s residence, and several houses away. Further, although the exact nature of Mr. Keating’s intention is unknowable to anyone but himself, the evidence does not clearly indicate that it was intimidatory. In the context of the tumultuous relationship described in evidence by both the grievor and Ms. S., Mr. Keating’s explanation of what he was doing there is not so implausible. Although I was strongly urged by employer counsel to dismiss it as incredible, I find an insufficient basis to do so. It is of course very difficult to disprove such an idiosyncratic explanation, particularly in light of the fact that if the grievor was up to something different and more nefarious, it was interrupted by the arrest. Nonetheless, in general, the other evidence supported a number of points of Mr. Keating’s accounts of disputed evidence, and thus I do not have a sufficient ground to dismiss his account on the basis that his credibility was generally impugned, despite the fact that he is obviously an interested party.

72The grievor’s explanation of why he had not used a more straightforward method to learn Ms. S’s schedule, such as phoning and asking, was that this would not have been successful, that he was concerned that she would not pick up or return his calls. One available inference from this is that he knew that calls and contact were unwelcome, which would add to the concerns about the grievor’s approach to women. Nonetheless, this was countered by the evidence that Ms. S had calmly called him on June 11 asking for assistance on behalf of a relative, as well as by the context of the couple’s “on again, off again” relationship, which Ms. S and Mr. Keating agree had a pattern of good stretches, punctuated by pauses, or not talking to each other after arguments. These would be ended by phone messages, usually initiated by the grievor, making the case for reconciliation, often not responded to by S for sometime, but, by her own evidence, eventually leading to further consensual contact. This time, testified the grievor, he wanted to end the relationship for good in a face-to-face meeting, timed sufficiently well to increase the chances of a decent conversation so that they could part on civil terms. That there were better ways to approach the situation Mr. Keating now accepts, but he appeared genuine in his testimony that this was the one that occurred to him that night. In any event, the plan to talk was overtaken by the police and the charges, and the grievor and Ms. S had not seen each other since, except at court and the arbitration hearing.

73The potential basis for a finding that the behaviour amounted to stalking, which involves an element of harassment and intimidation, despite the acquittal, is to be found in the inference that may be drawn from the time of day, the darkness and the surreptitious use of binoculars. It is the method, not the fact of trying to learn her schedule, that is the principal problem. If the grievor had tried to learn Ms. S’ schedule indirectly by other means, such as asking mutual acquaintances, it is doubtful there would be much basis for such an inference. It is true, as employer counsel argued, that anyone, no matter the gender, would likely find such surveillance somewhat threatening or at least disconcerting. On the other hand, Ms. S. was clear that she was completely unaware Mr. Keating was on her street until the police told her, and the fact that he was parked in the opposite direction of where she needed to walk to get to work is consistent with his position that, rather than trying to harass or intimidate her, he was trying not to bother her that night.

74Ms. S gave her opinion to the police and to the Ministry inspector as to what Mr. Keating might have intended that night, including the idea that he might have wanted to watch to find out who her new boyfriend was and to follow him to find out where he lived, presumably to his or Ms. S’s detriment. I have no other evidence to support such a finding. Her opinion as to Mr. Keating’s possible intention towards her new boyfriend raises disturbing questions, but it is not clear and cogent evidence of anything. In the end, that is the situation with much about the binoculars incident. It is all very troubling, and it is no doubt possible that Mr. Keating was up to more than an odd and ambiguous attempt to learn Ms. S’ schedule in order to increase his chances of having a decent conversation with her. But there is a reason that clear and cogent evidence is required to find that an event likely occurred. It is so people are not ultimately judged on the basis of a cloud of suspicion. In the end, without proof of a threatening or intimidatory purpose, I do not find that I have a sufficient basis to find that what Mr. Keating was doing that night was unlawful, even on a civil standard of proof. That it was unbecoming to a jail manager to put himself in such a position, I have already found. And although I accept that one cannot control whether one is accused of a crime of which one is not guilty, Mr. Keating could certainly have controlled whether he ended up in such a questionable position. Asking himself how he would have felt if he had been on the receiving end of the binocular surveillance, or how his behaviour might impact on Ms. S or appear to others who saw him, could have saved himself, as well as Ms. S and the employer, all the considerable trouble that flowed from his conduct that night.

75Mr. Keating’s acquittal occurred on the second date set for trial, prior to which the Crown had elected to proceed summarily. Ms. S. had appeared on the first trial date, but did not do so on the second. She testified that, on the night before the second trial date, an unknown person drove past her calling a warning against showing up out the window of a car she could not identify. This evidence obviously leaves open very troubling possibilities as well. Nonetheless, it is my duty to evaluate this matter on the evidence before me as to the grievor’s conduct, which did not establish any link between any warning and the grievor. He expressly denies any knowledge of such a warning or what lead to it prior to hearing about it at the arbitration of this matter. Further, there was no evidence supporting it other than that of Ms. S, who was shown not to have given a very reliable account of other events. Moreover, she testified that despite being scared by the warning, she would have appeared at the trial if the Crown had provided a ride to the trial that had been promised. As well, there was no evidence one way or the other as to what role Ms. S’ absence actually played in the acquittal or the Crown’s evidence at the trial. Thus, I have not counted the evidence concerning the warning as weighing against Mr. Keating, or as suggesting that but for the absence of Ms. S, he would have been convicted.

76On balance, on the evidence before me, I do not find the grievor’s behaviour on July 1 to be nearly as serious as it was viewed by the employer at the time of the discharge. It is, in the end, not criminal, or shown to be intentionally intimidatory or to have had any effect on Ms. S at all until the police informed her of it. It is off-duty behaviour that is both troubled and troubling, but not so grave as to warrant the conclusion that Mr. Keating is too much of a risk to allow working with or supervising women. Moreover, I have found that the grievor’s behaviour in the interview did not warrant discipline. Together, these findings indicate a significantly less serious situation than what appeared to the employer at the time of the discharge.

(ii) Was the employee’s conduct premeditated, or repetitive; or instead, was it a momentary and emotional apparition, perhaps provoked by someone else?

77The grievor’s behaviour was not momentary or provoked. As to factors temporarily affecting his judgment, and although the grievor did not raise this himself, his counsel suggested that the fact that he had lost his sister a short time before might have left him in a state where his judgment was not at its best.

78As to whether the behaviour was repetitive, it is clear that both Ms. S and the neighbour made statements to the police and to Inspector McGillis, which were reflected in the report that formed the basis of the superintendent’s decision, to the effect that there was a repetitive aspect to the behaviour. Since Ms. S’ evidence at the hearing did not deal with this, as noted above, I do not have a sufficient basis to find that unwelcome watching behaviour had taken place on other occasions. As to the neighbour’s evidence that he had seen Mr. Keating’s car on other occasions, there is similarly no detail. As well, the fact that the grievor had been involved in errands related to Ms. S’s air conditioning less than three weeks earlier is a basis for caution in assuming that all recent instances of the presence of his car on the street should be considered problematic.

79The superintendent clearly thought the behaviour leading to the criminal charges was repetitive, in the sense of a continuing pattern of problematic behaviour towards women. And there can be no doubt that the grievor has exhibited problematic behaviour towards women. This will be discussed together with the grievor’s disciplinary record below.

(iii) Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history?

80For nineteen years, the grievor had a discipline-free record. He has spent almost all of his working life in corrections. He worked in a number of institutions, was promoted to Operational Manager in 1995, and rose to acting Deputy Superintendent, attracting several commendations along the way, including during the years he attracted discipline.

81In 2001 and 2003 he was involved in incidents which lead to one three-day suspension and two ten-day suspensions. The second ten-day suspension, served in January 2004, was for an incident in March 2003 concerning policy breaches in managing staff in a use of force incident. The superintendent said he had not relied on this last suspension in making the decision to discharge because he considered it an unrelated operational issue.

82The grievor’s performance evaluations, even during 2003 and 2004 when he attracted discipline and some notoriety, were quite positive. The superintendent made it clear that the grievor had not been discharged for the performance of his day-to-day duties, with which he was only familiar on an occurrence basis in any event.

(iv) Has the employer attempted earlier and more moderate forms of corrective-discipline of this employee which did not prove successful in solving the problem?

83The employer has imposed previous discipline for behaviour which involved women in the workplace. The first item in the record relied on is a three day suspension imposed in March, 2002. This discipline was for an incident when Mr. Keating showed an animated video, described as smutty or pornographic, which he had received by e-mail, to two female correctional officers while at the jail. This occurred in a different institution, in Whitby in 2001, over three and a half years before the suspension pending investigation in July, 2005. There is no suggestion that any similar incident has re-occurred. The grievor accepted responsibility for this incident.

84The second item is a ten-day suspension imposed a year and a half later, in September, 2003, for failing to call in a female correctional officer who had earlier made a harassment complaint against him. The evidence from the grievor, which was not contradicted, was that he had previously disciplined her for inappropriate use of force. Following this discipline, she threatened a harassment complaint in return. She did file such a complaint, which was not substantiated. During the course of the investigation of that complaint, he had a shift to fill, with more hours than the availability she had indicated. He testified he felt he would have had to order her to work longer in order to fill the time slot he needed. Given the investigation, he did not feel that he should be the one to do so, so he asked another manager to deal with the matter, but that manager declined. He then bypassed her name and called in someone else. For having done so, he was found to have committed a reprisal for the harassment complaint. As discipline for the reprisal, he received a ten-day suspension.

85Mr. Keating grieved the ten-day suspension, but eventually withdrew it in October, 2004 as part of a settlement, and it thus remains on his record. Prior to the binoculars incident, there had been no further incident related to women, or any other matter, that attracted discipline since September of 2003, approaching two years before the incident of July 1, 2005. As well, counsel for the grievor notes, at the point of the criminal charges, things had progressed sufficiently well that the superintendent had been planning to try Mr. Keating as acting Deputy Superintendent for a week during which they were short staffed.

86By contrast, employer counsel points out that all three incidents show disrespect for women, as well as a lack of judgment, such that he is just “not getting it”, and the behaviour was getting worse. The disciplinary record outweighs any commendations, in the employer’s view, and demonstrates that the grievor’s ability to manage staff and deal with the implementation of the harassment policy at work is irreparably damaged.

87Although Mr. Keating may not be “getting it” in all respects as to his behaviour to women or otherwise, no behaviour similar to the incidents on the disciplinary record had been repeated at work, despite the passage of considerable time. In this context, although the two suspensions form a significant disciplinary record, they are not conclusive evidence that corrective discipline is not effective with this individual. The off-duty binoculars incident, although related to the two suspensions relied on because it involved unacceptable behaviour to a woman, does not involve behaviour so closely related to the previous incidents or the workplace harassment policy that I am persuaded that it warrants the conclusion that the grievor has not learned from corrective discipline.

88In discussing the grievor’s disciplinary record, it is appropriate to note that there were other complaints against him in the two years leading up to his discharge for which Mr. Keating was not disciplined, but which attracted notoriety and tension, contributing to the superintendent’s concerns about his ability to work effectively in the institution, which will be dealt with in that context below. However, they were not relied on by the superintendent as part of the grievor’s disciplinary record in coming to his decision to discharge, and properly so, and are thus not to be counted against him in terms of his ability to learn from corrective discipline.

(v) Is the discharge of this individual in accord with the consistent policies of the employer, or does it appear to single out this person for arbitrary and harsh treatment?.

89The grievor gave uncontradicted evidence that there were a number of people still in the employ of the Ministry who had criminal convictions or had been guilty of physically violent behaviour. This evidence was not explored in detail, but the grievor acknowledged on cross-examination that he did not have all the details of those cases, and that he knew that the Ministry took an individualized fact-based approach to the assessment of all discipline. In any event, I find the facts of this case rather unique, and find no basis for a finding that there was an inequality of discipline in any improper discriminatory sense in this matter.

90The above deals with the criteria from the Wm. Scott case. Other considerations appropriate to take into account on the question of whether discharge was excessive include:

• the economic impact of discharge in view of the grievor's age, personal circumstances, etc.

• the frank acknowledgement of his misconduct by the grievor;

• future prospects for likely good behaviour

• The remaining Millhaven criteria:

• Whether the grievor’s behaviour renders the employee unable to perform his duties satisfactorily

• whether the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him

• whether the behaviour places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.

• the economic impact of discharge in view of the grievor's age, personal circumstances, etc.

91Counsel for the grievor relied on an analogy to policing cases, which he urged the Board to find were equally applicable to a manager in correctional services, to argue that after a long career in policing and/or corrections, subsequent employment opportunities are limited. As a result, the cases show a reluctance to disturb careers, that is different than for production workers, for instance, unless the officer is shown to be of no further use to the police force.

• the frank acknowledgement of his misconduct by the grievor;

92The reason that acknowledgement is important in the balancing of factors relevant to whether a penalty should be reduced is that insight as to what has gone before reduces the chances that it will be repeated. The grievor accepted responsibility for the incident which lead to the three day suspension, and ultimately that leading to the ten-day suspension. As well, he acknowledged at the hearing that he should have behaved differently on the night of July 1, that it was insensitive to Ms. S, but said he had simply not thought of the better ways at the time.

93Employer counsel stressed that the grievor continued to assert at the pre-disciplinary meeting that various other people were responsible for his difficulties, including the union, Ms. S. and the employer. At the hearing, the grievor acknowledged that he was an active participant in the turbulence in the relationship with Ms. S. As well, the evidence indicates that he has gained better insight into his role in creating and maintaining such a relationship, and what supports and behaviour might assist him in seeing to it that his relationships stay on a more solid footing in the future. Further, although the grievor is ultimately responsible for the quality of his relationships on and off the job, the evidence before me does indicate that there is some truth to the idea that the extent of the notoriety that surrounded him was disproportionate to his own behaviour in the two years leading up to his discharge, as will be discussed further below. In this respect, it is not my view that taking responsibility for one’s own actions means that one has given up the right to have opinions about the roles of others in the complex environment of the grievor’s workplace.

• future prospects for likely good behaviour

94Prior to his discharge, there had been no new incidents or allegations of improper behaviour until the binoculars incident, despite the fact that the grievor had worked at his regular job throughout the troubled period, except for a short period when he was reassigned. The superintendent was concerned that the binoculars incident showed that Mr. Keating had not learned from his previous discipline. In this regard, although as noted above, there is a common element of involvement with women, the off-duty incident involves a situation quite dissimilar from either of the workplace incidents, such that I am not persuaded that it shows the grievor is incorrigible.

95Since the criminal charges, the grievor has engaged in a number of activities which enhance the foundation for hope that his future prospects for good behaviour are high. These include 22 sessions in a program aimed at men in abusive relationships, in which he enrolled because he had come to understand that his relationship with Ms. S was verbally abusive. As well, in preparation for his criminal trial, he underwent psychological and psychiatric evaluation, which found no sign that the grievor was a danger to women, something that was an active concern for the superintendent at the time of the discharge. His life appears more stable. I find the evidence persuasive that, although he used a very unfortunate method to try to advance the situation, the grievor was trying to extricate himself from an increasingly untenable emotional entanglement with Ms. S when he went to her street on July 1, also a positive sign in this regard.

• the remaining Millhaven criteria

96The remaining Millhaven criteria are also relevant here. They are:

• Whether the grievor’s behaviour renders the employee unable to perform his duties satisfactorily

• whether the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him

• whether the behaviour places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces”.

97One of the principal difficulties in this case is answering the question as to the effect of the behaviour on the grievor’s ability to perform his job. This is because it involves the elements of respect, credibility and judgment, essential to the role of the operational manager, which are intangible, and very difficult to measure with any degree of certainty, particularly in advance. The discharge letter cites the nature of the charges as presenting a serious risk to the legitimate concerns of the employer, rupture of public trust, and the severance of respect and credibility that is required to supervise both inmates and employees. Employer counsel stressed that trust was the underlying issue, the public trust and trust in the ability of managers to properly exercise the considerable authority they possess in the workplace. He notes that the job description of operational managers requires them to often be the highest level of authority in the jail, responsible for dealing with a wide range of issues which include enforcing the workplace dispute and harassment policy, something that requires that the manager be beyond reproach. Employer counsel argued that it was fundamentally problematic to have a person in that position who could not respect the policies himself. Part of the job is dealing with the public, making decisions about sensitive issues, such as inmate visits. Counsel stressed how important it is that reputation be maintained for persons in a position of trust. Further, he stressed that, given the notoriety of correctional institutions in the community, an objectively high standard is required for people employed in the grievor’s role.

98The superintendent, who made the decision and authored the discharge letter, predicted that all of the grievor’s issues with staff and inmates would be escalated, and that allowing someone with these issues with women to maintain such a highly regarded position in the criminal justice field would be unacceptable to the public.

99As noted above, there were complaints about Mr. Keating in the years leading up to his discharge that did not result in discipline, but are relevant to whether he could function effectively as a manager in the environment in which these issues arose. Grievances were filed by nine female staff and a co-op student alleging sexual harassment against Mr. Keating. The evidence indicated that OPSEU had organized a province-wide effort to bring forward issues relating to Mr. Keating when he had won a job posting after the three day suspension for showing the improper e-mail to his subordinates. Counsel for the grievor put this in the context that the union was taking issue in general with transferring people when there were difficulties in one institution, and that Mr. Keating became a “poster boy” for that issue, despite the fact that he had not been transferred as a result of the discipline or the difficulties that preceded it; he had won a job competition.

100There was also a brief work refusal in December, 2003 by several women staff from the Windsor Jail, citing safety concerns about working with Mr. Keating, in reaction to a media report concerning the first day of hearing of the group of harassment grievances. Both the work refusal and the return to work attracted local press coverage. The concerns of the staff were investigated, and it was found that there were no new allegations, and therefore the superintendent recommended that the matter be closed. Grievor’s counsel characterizes the effort as an OPSEU publicity stunt.

101When the group of grievances was scheduled before the Grievance Settlement Board, Mr. Keating was made a party and he eventually engaged his own counsel. When the hearings continued in March 2004, Toronto press reported his counsel’s representations to the GSB that Mr. Keating was the victim of “malicious character assassination”, and that the problem stemmed from bitterness left over from the OPSEU strikes in 1996 and 2002. The superintendent agreed in his evidence that some on the union side did not like the role the Operational Managers played in running the jails during those strikes. Toronto press also reported the settlement of the grievances in October 2004.

102In two separate sets of non-confidential Minutes of Settlement signed the same day in October 2004, the employer settled both the OPSEU grievances and Mr. Keating’s grievance against his ten day suspension, with the suspension remaining on his record. One of the terms of the settlement with OPSEU was that Mr. Keating would undergo mandatory sensitivity training “with respect to sexual harassment and issues related to dealing with women in the workplace”. By the time of the criminal charges, some nine months later, that had not yet occurred. There were delays in finding an appropriate course, and when the employer learned that the grievor’s sister was terminally ill in the spring of 2005, they decided to wait until a more propitious time. Thus, at the time of his discharge, Mr. Keating did not have the benefit of whatever learning concerning his behaviour towards women which might have occurred through such training.

103The allegations underlying the nine grievances themselves never resulted in discipline to Mr. Keating, and they are not before me for adjudication. Nonetheless, the notoriety that surrounded them was a part of the workplace environment in which the grievor worked during the grievance procedure and GSB hearings and after they were settled, and which continued to concern the superintendent. It is not necessary for the purposes of this decision to detail the allegations of all of the grievances filed against Mr. Keating, but it is relevant to note that they included the 2001 e-mail incident for which Mr. Keating had already been disciplined, as well as a repeat of the allegations contained in the unsubstantiated complaint which had resulted in the 2003 scheduling incident which lead to the reprisal discipline. This was the only one of the group of grievances from anyone working at the Windsor Jail where the grievor had been working since December 2001. Another allegation related to a complaint from three women working at another correctional facility, where he had not worked for three years, and which had earlier been found to be unsubstantiated. Mr. Keating’s uncontradicted evidence was that one of the women who had participated in the walk-out mentioned above later apologized to him, saying she had not realized the allegations were old ones.

104As to the question of whether the grievor’s behaviour would lead to the reluctance or inability of other employees to work with him, the evidence indicates that the local union president requested the grievor be kept out of the institution until the charges were dealt with, but there is no evidence that the concern continued after the grievor’s acquittal. The evidence of the grievor’s ability to re-integrate after the settlement of the group grievances argues in favour of a finding that he could be successfully reintegrated. However, the superintendent’s description of the situation after the grievor’s return to work after those grievances included the idea that things had difficulty settling down, and that although there were no further formal complaints between the date of the settlement of the group of grievances against the grievor in October 2004, and the grievor’s suspension pending investigation in July 2005 after the criminal charges, there was a continual concern about whether the situation was viable. Apparently, the grievor was somewhat hesitant to mix with staff, and although the superintendent and his deputies were managing the situation according to policy, the publicity had helped create a negative environment in the jail, female staff still expressed concerns about being supervised by Mr. Keating, and the superintendent felt a constant tension as to whether the situation would be manageable or “go off the rails”. Even after the suspension and discharge, staff apparently mentioned the issues to the superintendent, connecting the charges to the previous issues with the grievor.

105By contrast, the grievor thought he would be able to function normally, and that reintegrating would be easier than after the grievance issues because the issue was off-duty conduct for which he had been acquitted. Further, the grievor testified that he has run into employees from the jail in the community who have made encouraging comments as to the prospect of his returning to work. As well, his uncontradicted evidence about his working relationship with the only one of the grievors from the group of grievances who worked at Windsor was that it was a positive and professional one.

106As to the fifth of the Millhaven criteria “places difficulty in the way of the Company properly carrying out its function of efficiently managing its works and efficiently directing its working forces …”, the superintendent’s evidence supports such a finding to the extent that the grievor’s behaviour left a real question mark as to the reliability of his judgment, especially when distracted by personal relationships. There can be no question that the superintendent genuinely believed that running the institution would be more difficult if the grievor were reinstated, because the behaviour for which he was charged eroded the necessary trust and respect required in his position. Nonetheless, it is important to emphasize that the starting point for the analysis of off-duty conduct is that it is generally beyond the employer’s authority and thus, the low points of one’s personal relationships are not usually considered appropriate determinants of employability. As noted above, given the grievor’s decision to not give his side of the story to the investigator, the superintendent was left with the uncontradicted versions of the two other witnesses – being the man who called the police and Ms. S. The evidence before me indicates that the account he relied on from Ms. S may well have been generally exaggerated, given that her version of events as to the relationship, which was reflected in the report, was shown to be inaccurate in important respects by the evidence at the hearing. I am satisfied that, on the information available to the superintendent at the time he made his decision, there was sufficient justification for the employer’s concerns arising from the grievor’s unexplained behaviour, and the accounts given by Ms. S and the citizen who called the police, together with the grievor’s history with workplace issues. But the totality of the evidence now before me is not as persuasive in that respect.

107Viewed as strange and troubling, but not physically violent, behaviour in the context of a vexed romantic involvement, coupled with lack of insight as to how the events would appear to others, the binoculars incident does not appear conclusive of the grievor’s ability to function when at work, given his lengthy history of effective job performance. In this regard, the jurisprudence relating to discharges of teachers, police and correctional officers for reasons involving criminal charges is instructive. Not even criminal convictions are necessarily fatal to mitigation of penalty, even for employees in such occupations, who are rightly held to a higher standard than other employees. See for instance, Nova Scotia Community College (2003), 2003 CanLII 89504 (NS LA), 121 L.A. C. (4th) 159 (Ashley) and Re Emergency Health Services Commission and C.U.P.E., Loc. 873 (1988), 1988 CanLII 9289 (BC LA), 35 L.A.C. (3d) 400 (Black). The closer the association of the behaviour to the employer’s operation, the more likely that the discharge will be upheld, such as involvement with contraband, especially with inmates. Cases where a discharge is upheld after an acquittal, or where no criminal proceedings were commenced, are much less frequent. See the discussions in Re Treasury Board (Revenue Canada -- Customs & Excise) and Phillips (166-2-21694) (1991), 1991 CanLII 13504 (PSSRB), 23 L.A.C. (4th) 403 (Lowden) (Public Service Staff Relations Board), Reilly and Brockville Police (1997), 3 O.P.R. 1163 (O.C.C.P.S.). In general, I find that the authorities do not support the upholding of discharges for behaviour rooted in problems in off-duty personal relationships, including abuse, unless there is some very close connection with the workplace.

108Although I accept employer counsel’s submission that a correctional officer is a peace officer off-duty as well as on, and that his behaviour on July 1 did not reflect well on him as a peace officer, I am not persuaded that the behaviour is so extreme or the damage to the reputation of the employer severe enough that it weighs against mitigation of the penalty. Given the acquittal, and the nature of the behaviour of July 1 as explained at the hearing, I find the behaviour more indicative of being deeply enmeshed in an unhealthy relationship than of being unable to work with or supervise women. As to re-establishing working relationships, I am convinced that employees working in corrections would be able to understand that an employee who has been acquitted of criminal charges for off-duty conduct might be afforded an opportunity to re-establish a positive working relationship with his employer, peers and subordinates.

109In my view, having considered all the above factors, the competing interests of the parties can be reconciled with a less severe penalty than discharge.

What alternative disciplinary measure is appropriate?

110The range of options for alternative measures, given the state of the grievor’s disciplinary record, and the fact that the employer’s policies call for progressive discipline, run from suspension with reinstatement to compensation in lieu of reinstatement.

111The grievor asks for reinstatement with full back pay. Employer counsel argued against reinstatement, even if discharge was found to have been excessive. He urged me to substitute damages, as the GSB did in the case of one of the grievors, Beaulieu, in the decision in the Gillis et al. grievances, cited above. I am not persuaded that the circumstances here are as exceptional as those in that case, which involved cover-up of a serious assault on an inmate, and no remorse or insight by the grievor. Further, as a general matter, the jurisprudence supports reserving such remedies for truly exceptional cases. In this matter, based on the acquittal of the charges, the lack of proven threatening intent in his off-duty behaviour, the grievor’s 22 years of employment with the Ministry, a significant period of time since his previous discipline, and evidence of his capacity for rehabilitation and reintegration into the workforce, I find reinstatement to be an appropriate and viable option.

112At the time of the discharge the superintendent considered that his only course of action was to remove Mr. Keating, that a suspension would not satisfy his responsibility to staff. On the state of the employer’s information, and the outstanding criminal charges, the conclusion that the grievor should not be supervising women employees and inmates was reasonable. Nonetheless, an interim available step, other than discharge, would have been to remove the grievor by way of suspension or leave of absence pending the disposition of the criminal charges. That would have been more in line with the principles of progressive discipline, and would have struck a better balance between the employee's interests and those of the employer. See for instance, the discussion in Phillips Cables Ltd. (1974), 1974 CanLII 2366 (ON LA), 5 L.A.C. (2d) 274 (Adams), Re Ontario Jockey Club and S.E.I.U., Loc. 528 (1977), 1977 CanLII 2913 (ON LA), 17 L.A.C. (2d) 176 (Kennedy), and Chilliwack General Hospital (1994), 1993 CanLII 16666 (BC LA), 42 L.A.C. (4th) 442 (Kelleher).

113The employer’s ability to realistically assess the risk to its operations of retaining the grievor was definitely limited by the grievor’s decisions about disclosure of information. Nonetheless, prior to the discharge, the employer knew from Inspector McGillis’ report that the lack of further information from the grievor was related to concerns about the criminal trial, from legal advice. Further, the grievor had let the superintendent know that he did not agree with all the facts in the investigation report, and had told him it was not true that he and Ms. S. had been broken up for months. As well, at the pre-discipline meeting, his counsel and he had urged waiting until the criminal charges were dealt with, indicating that more information might be available after the criminal proceedings, so that it was premature to discipline the grievor at that point. Without details, it is hardly surprising that the superintendent did not just accept the grievor’s version. However, the information Mr. Keating did provide was at least an indication that all the facts were not available to the internal investigation because of the impending criminal trial, and that the facts were in dispute. Given these elements of the situation, final disposition of the matter could have been reserved until the charges were resolved. This is a possibility contemplated by the employer’s policy entitled “Employees Charged with Criminal Offences”, which notes the importance of recognizing that an accused employee is presumed innocent, and contains the following, after its description of the investigation and decision-making process by management:

On occasion, important information (e.g. the disposition of the employee’s charge by the court) will be received after the completion of the above process. The Superintendent may, in consultation with the Regional Director, review the original decision to reflect the most current status of the information available.

A re-evaluation of the whole matter after the acquittal, which the evidence dated at September 23, 2007, would have had the advantage of providing the possibility of a firmer factual footing for the employer’s investigation, and might have lead to a very different balancing of factors than occurred at the time of the discharge.

114Employer counsel urged that, in the event reinstatement were ordered, that it be without compensation, and not to Windsor, and not in a supervisory capacity, and that the penalty remain on his record for five years from the date of decision. Given my view of the evidence, set out above, I do not find it necessary to put specific conditions on the grievor’s reinstatement, particularly as circumstances have no doubt changed somewhat in the jail and the Ministry in the time intervening since the discharge.

115Given the employer’s inability to fully assess the facts at the time of the discharge, and in light of all the considerations above, it is my conclusion that a leave of absence without pay pending the outcome of the criminal charges would have been a more appropriate disposition of the matter at the time. Given the information now available, and in light of the acquittal, the appropriate penalty to substitute for the discharge is a suspension for unprofessional conduct, which was unbecoming a peace officer and damaging to the reputation of the employer. Given the employer’s policy of applying progressive discipline and the grievor’s last suspension of ten days, the suspension is to be recorded as fifteen days. If it had been a clear record, the behaviour would have properly attracted a lesser penalty. I am further persuaded, as discussed above, that reinstatement is a viable part of a remedy.

116The remaining remedial factor to consider is compensation which may be awarded upon reduction of a penalty of discharge to a suspension. In this respect, I find the impact of the grievor’s decision to limit his disclosure to the employer to be an important factor. In cases where a grievor elects not to disclose information to the employer, that fact has been found to affect what damages are payable if the lack of information limits the ability of the employer to assess the risk involved in the situation. See for instance: Lafarge Canada Inc. and I.U.O.E., Loc. 793 (Forbes grievance) (2007), 158 L.A.C. (4th) 340 (Carrier) and Tober Enterprises Ltd. and U.F.C.W., Loc. 1518 (1989), 1989 CanLII 9339 (BC LA), 8 L.A.C. (4th) 232 (Vickers), supp. reasons 20 C.L.A.S. 329 (Vickers), set aside 90 C.L.L.C. ¶16,045 (B.C.I.R.). As well, the case law cited above concerning suspensions pending disposition of criminal charges demonstrates they are generally without pay. Here, the grievor did not disclose the details of his version of events until late in the hearing of this matter, although as noted, he had indicated to the superintendent that he did not agree with the version in the investigation report prior to the discharge. Whether or not he would have disclosed more after the acquittal if he had been suspended rather than discharged is difficult to assess on the evidence before me, although that would have been the natural time to re-assess the situation. In any event, the length of time it took to get to the grievor’s evidence at the hearing is not something for which he personally bears responsibility, given factors such as the vagaries of scheduling and witness availability. In all the circumstances, it is my determination that compensation for his losses from the date of his acquittal should follow, subject to required deductions and principles of mitigation.

117In summary, for the reasons set out above, the grievance is allowed in part. The employer is to reinstate Mr. Keating to his home position as Operational Manager at the Windsor Jail, within thirty days of this award, or in such other period as the parties may agree. The employer may arrange for any necessary reorientation or updating, and retains its managerial rights as to assignment. Compensation is to be paid to the grievor from the date of his acquittal of the criminal charges. I will remain seized to deal with any difficulties of quantification of compensation or implementation of the above decision which the parties are unable to resolve themselves.

118I am grateful to all counsel for their very conscientious and professional assistance to the Board throughout the hearing of this matter.

Dated at Toronto this 24th day of March, 2009

Appendix “A”

Statutory References

From the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, sections 5 and 22

Functions of Ministry

5. It is the function of the Ministry to supervise the detention and release of inmates, parolees, probationers and young persons and to create for them a social environment in which they may achieve changes in attitude by providing training, treatment and services designed to afford them opportunities for successful personal and social adjustment in the community, and, without limiting the generality of the foregoing, the objects of the Ministry are to,

Note: On a day to be named by proclamation of the Lieutenant Governor, section 5 is amended by the Statutes of Ontario, 2002, chapter 18, Schedule N, subsection 19 (1) by striking out “It is the function of the Ministry to supervise the detention and release of inmates, parolees, probationers and young persons and to create for them a social environment” at the beginning and substituting “It is the function of the Ministry to supervise the detention and release of inmates, parolees, probationers and young persons and to create for them an environment”. See: 2002, c. 18, Sched. N, ss. 19 (1), 72 (2).

(a) provide for the custody of persons awaiting trial or convicted of offences;

(b) establish, maintain and operate correctional institutions;

(c) provide for the open custody, secure custody and temporary detention of young persons awaiting trial, found guilty or convicted of offences;

Note: On a day to be named by proclamation of the Lieutenant Governor, clause (c) is repealed by the Statutes of Ontario, 2002, chapter 18, Schedule N, subsection 19 (2) and the following substituted:

(c) provide for the custody of young persons awaiting trial or found guilty or convicted of offences;

See: 2002, c. 18, Sched. N, ss. 19 (2), 72 (2).

(d) establish, maintain and operate places of open custody, secure custody and temporary detention;

(e) provide programs and facilities designed to assist in the rehabilitation of inmates and young persons;

(f) establish and operate a system of parole;

(g) provide probation services;

(h) provide supervision of non-custodial dispositions, where appropriate; and

(i) provide programs for the prevention of crime. R.S.O. 1990, c. M.22, s. 5.

10. (1) Every person employed in the administration of this Act, including any person making an inspection, investigation or inquiry under this Act, shall preserve secrecy in respect of all matters that come to his or her knowledge in the course of his or her duties, employment, inspection, investigation or inquiry and shall not communicate any such matters to any other person except,

(a) as may be required in connection with the administration of this Act, the Parole Act (Canada), the Penitentiary Act (Canada), the Prisons and Reformatories Act (Canada), the Young Offenders Act (Canada), the Youth Criminal Justice Act (Canada), the Provincial Offences Act or the Criminal Code (Canada) or the regulations thereunder;

(b) to the Ombudsman of Ontario or Correctional Investigator of Canada;

(c) in statistical form if the person’s name or identity is not revealed therein;

(d) with the approval of the Minister. R.S.O. 1990, c. M.22, s. 10;