PSGB#2014-2859

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Bazger

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Gavin Leeb Gavin Leeb Law Office Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 8, April 24, September 18, October 5 ,19 & 23, 2015; February 2 & 4, March 9 & March 31, May 18 & May 19, August 24, September 13, 2016

Decision

1This decision deals with the complaint of Hamza Bazger in which he contests his termination from employment as an Operational Manager at the Toronto West Detention Centre. The employer asks that the complaint be dismissed, as it is of the view that the termination was justified on the basis of the complainant’s failure to properly manage a situation of excessive use of force on two inmates, and participation in a cover-up instead. The complainant asks that his complaint be allowed on the basis that he was not trying to cover up, that the employer has not proven sufficient misconduct to justify termination for cause, and that there are enough mitigating factors to justify reinstatement.

The factual context

2The significant amount of factual common ground will set out the context for this decision. The disputed facts necessary to this decision are discussed as part of the resolution of the issues in dispute below.

3On the afternoon of October 5, 2013, two inmates had a protracted fist fight in their living area. When they did not respond to direction from staff to stop, Correctional Officer (CO) Steve Conry initiated a “Code Blue”, to call for all available staff to come offer assistance. Once another officer arrived for back-up, the inmates were separated, ending the fight. Mr. Conry escorted each of the inmates in turn through the living unit’s secure entrance and exit area, known as the sally port, and handed them over to other officers to be taken to a segregation unit. While in the sally port, Mr. Conry struck or punched each of the inmates more than once. When this came to light, he was suspended pending investigation and then fired for excessive use of force, his failure to report it and for being untruthful during the investigation.

4Mr. Bazger, the complainant, was working as an Operational Manager (OM) on the first floor when the Code Blue was called on the second floor. When he responded to the Code, he was covering for the lunch break of Acting OM Brandon Chinn, the second-floor unit’s manager that day. As the responding manager, Mr. Bazger was responsible to secure the area and then “clear the Code”, meaning to decide when the other officers who had responded could return to their assigned posts. He arrived on the unit shortly after Mr. Conry had escorted the first inmate into the sally port, and while walking towards the sally port, observed Mr. Conry holding and then pushing the inmate against the glass wall of the sally port.

5Mr. Bazger then entered the inmates’ living area to ensure that the area was secure. Mr. Conry came back into the living unit, and escorted the second inmate out through the sally port. Mr. Bazger exited the unit as well, and was approximately 3 feet away from Mr. Conry and the second inmate when Mr. Conry struck that inmate. Mr. Bazger says that he did not see it happen, that he must have been looking in another direction. Mr. Bazger cleared the Code, and the several officers who had responded from other units left the area.

6Shortly thereafter, acting OM Chinn returned from lunch, and was briefed by the CO’s assigned to his unit about the altercation between the inmates, but was not told about Mr. Conry’s blows to the inmates. The two managers, Messrs. Bazger and Chinn, discussed who would do the paperwork necessary to report the incident, as it was Mr. Chinn’s unit, but he had not been there for any part of it. Mr. Bazger testified they disagreed about whether the separation of the inmates by the two first responding CO’s involved a use of force or not, with Mr. Chinn taking the position that it was not a use of force, and thus would be reported as an inter-inmate altercation, rather than as a use of force by staff towards either inmate. Mr. Bazger said he deferred to Mr. Chinn’s assessment in this regard, and sent an e-mail to the Deputy Superintendent at the end of his shift indicating that there had been an altercation between two inmates, with no staff injuries or use of force.

7All the staff who witnessed any part of the incident in question were obliged by policy to write Occurrence Reports (OR’s) as soon as possible. Out of approximately 20 CO’s who responded to the Code, only three did. After the investigation of the matter, almost all of them were disciplined for their failure to report, and in the case of those who did write OR’s, for what they left out of their initial reports. The evidence concerning the widespread failure to report is consistent with what is known as the Code of Silence, according to which use of force may not be reported, despite clear obligations to do so, because it might lead to negative job consequences for fellow officers. Those who do not abide by this code, and do their duty to report use of force, as the case law on the subject has documented, may be subject to extensive harassment and exclusion by disapproving colleagues.

8Mr. Bazger did not ask all the officers present to write reports, and did not take any action when he became aware that Mr. Conry’s first OR did not mention that he had held or pushed the first inmate against the wall, although Mr. Bazger had witnessed that, and knew it was a use of force.

9There is a group of officers designated as the Risk Management Team (RMT), who review reports about incidents such as the one in question. When they reviewed the initial reports, they deemed the separation of the inmates to have involved a use of force, and contacted Mr. Chinn on October 10 to let him know that the more extensive paperwork required for reporting a use of force incident, referred to as a use of force package or an LIR (Local Incident Report), had to be done. This included a requirement that the manner of separating the fighting inmates be more specifically described by those involved.

10Both Mr. Conry and the other CO who separated the fighting inmates first submitted OR’s which did not mention any use of force. On October 15, after the request from the RMT for more detail was received, the second CO submitted a report stating that Mr. Conry had dragged the second inmate’s face across the bars of the sally port and punched him twice. The report also stated that Mr. Bazger had held Mr. Conry’s fist to keep him from hitting the inmate again. When Mr. Bazger saw this report, he was of the view that it contained lies, both about Mr. Conry’s blows to the inmate, and about his having stopped him from delivering further blows, and that accordingly this CO should be suspended. As a result of his efforts towards suspending her, and other contacts with Messrs. Bazger and Chinn in regards to reporting about the incident of October 5, that officer and the CO who had been assigned to the module on the unit when the Code Blue was called, complained of harassment by both managers.

11On October 16, Messrs. Bazger, Chinn and Conry were suspended pending investigation. Mr. Bazger was interviewed as part of the investigation by the CISU (Correctional Investigation and Security Unit) in December 2013. An allegation meeting was held on June 16, 2014 and he was fired by letter dated August 14, 2014. The employer had concluded that Mr. Bazger’s actions constituted an active participation in a cover-up of a serious use of force incident, in essence a failed attempt to help his friend Mr. Conry keep his job. That Mr. Conry is a friend of Mr. Bazger’s is admitted; a cover-up is not.

12Mr. Conry has since been reinstated based on mitigating factors, all of which is recounted in more detail in the decision of the Grievance Settlement Board dealing with his grievance: Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) Grievance of Conry, GSB #2014-2618, 2016 CanLII 59598 (ON GSB) (Williamson). In that decision, the CO who first reported the blows to the inmates to management is referred to by the letter W, an approach adopted in this decision as well.

The issues

13It is conceded that there was cause for discipline arising from the above circumstances, leaving the issues to be determined, which will be dealt with in turn, as follows:

i. What was the extent of the misconduct engaged in by Mr. Bazger?

ii. Was discharge an excessive response in the circumstances, in light of the factors relevant to mitigation of penalty?

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

14For ease of reference, the authorities referred to in argument on these issues are listed in the appendix to this decision.

i. What was the extent of the misconduct engaged in by Mr. Bazger?

a) A Preliminary Note About Credibility in General

15The greatest difficulty in determining the key question of the extent of Mr. Bazger’s misconduct stems from the considerably different narratives in the evidence of those witnesses who responded to the Code Blue described above. Where different versions of the facts can be reconciled, I have attempted to do that, as there are many reasons other than conscious dishonesty why the stories of witnesses might diverge. Some of the inconsistencies in the evidence are no doubt attributable to the fact that many months separated the witnesses’ testimony from the events in question, during which witnesses told their stories to various people at different times, including colleagues and investigators, and many other things happened. There is a normal erosion of memory over time, as layers of newer experience accumulate. In this case, the irreconcilable versions of important events are not all of the kind that can be explained by these common problems with memory, a situation which calls into question the credibility of several of the witnesses. In making the findings of fact below, I have applied the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 353, as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

16In applying that test to the evidence before me, it is of note that all the witnesses to the conflicting versions of the events of October 5 communicated information or submitted reports which were either false or misleading by omission, demonstrating a flexibility with information which does not give confidence in the overall reliability of any of them. Each of them was prepared to omit important facts, lie or shade the truth at one point or another, and they all increased the amount of the truth they reported at some later point. They each risked potentially undesirable consequences if the details of the incident came to light, and thus they each had an interest in relating the facts in a way that made their conduct look more acceptable. Further, their work environment provides constant experience in what can be hidden, and what cannot, as well as real disincentives to leave oneself vulnerable to the less wholesome behaviour of colleagues and/or inmates.

17There were also alliances and animosities from previous dealings between and among the various witnesses, which will be dealt with as necessary below, which adds a layer of complexity to the witnesses’ interpretations of events.

18I will deal with the factual issues in dispute in approximately chronological order, and discuss them further in terms of the three areas of allegations against Mr. Bazger in the discharge letter, i.e.: cover-up of a use of force, failure in managerial duties and being untruthful during an investigation.

19It was not disputed that the onus of proof is on the employer, or that the standard of proof is the balance of probabilities, which requires clear and cogent evidence of wrongdoing.

b) Did Mr. Bazger see Mr. Conry strike the second inmate?

20To begin with the central incident in this case, the first disputed question is whether Mr. Bazger saw Mr. Conry strike the second inmate. As Mr. Bazger acknowledges, he was certainly in a position to see it, had his attention been focused on the inmate, where other evidence indicated it should have been. One of the responsibilities of the responding manager is to take charge and ensure the care and custody of the inmates, their safety and that of the staff, as much as possible.

21By his own account, Mr. Bazger was distracted by several things when he responded to the incident in question. He had only recently returned from lunch himself, and had not fully gotten back to work. He left his unit without his radio, emergency knife and handcuffs, all important equipment for managing such an incident. He did not do the kind of search he usually does of the living unit, cell by cell, to see if anyone is hiding or injured, but testified that, until he saw the video at the time of his allegation meeting in June 2014, he was convinced he had done such a search. He did not handcuff the inmate as he normally would because he had forgotten to bring his handcuffs. As well, while in the sally port when the second inmate was being escorted out, he was in close proximity to a female correctional officer, and testified he was worried about inadvertently physically contacting her. The institution was short-staffed and on lock-down; he was anxious to get staff back to their posts, as he was concerned something else might happen in another corner of the institution. As all reported, the interaction with the inmates on October 5 was over in a matter of a few minutes.

22Mr. Bazger testified that on his way into the sally port, he saw Mr. Conry push the first inmate back against the wall, and that he reported this in his original occurrence report. In a later occurrence report, filed after Mr. Conry’s blows to the two inmates had come to light, Mr. Bazger wrote that he did see in his peripheral vision that Mr. Conry might have offered a distracting blow to the second inmate. However, he denied seeing Mr. Conry punch the inmate, as well as denying taking hold of his fist to prevent further blows, an issue which will be discussed below. Mr. Bazger says that he did not report this peripheral awareness of contact, because he was not sure what he had seen. At the hearing, he described it as sensing something had happened, perhaps a shuffling, but said he did not see what the video shows. The investigator’s report found that whether Mr. Conry used an open hand or closed fist on the second inmate could not be substantiated, but that the force was unjustified and therefore excessive in any event. As to this portion of the facts, the investigator found that Mr. Bazger’s failure was “not reporting that CO Conry may have struck” the second inmate.

23Mr. Bazger testified that, once he realized how close he had been to Mr. Conry when he struck the second inmate, he feared that something was wrong with his perception. As a result, within the two weeks which followed his suspension, he consulted two psychologists about the situation where he had been so close to Mr. Conry but did not recall the blows. Their reports were filed in evidence, and although their authors did not testify, I have considered them as possibly reliable hearsay. The first report indicates that Mr. Bazger told the psychologist that after submitting his report about the incident, he was told that the video showed him looking at Officer Conry offering a distracting blow to an inmate, and that he did not remember this. The psychologist offered the comment that it seemed that Mr. Bazger was “under considerable stress which is a negative emotional experience accompanied by predictable biochemical, physiological, cognitive and behavioral changes that are directed either toward altering the stressful event or accommodating its effects.” Mr. Bazger had not viewed the video at the time he saw the psychologist, but testified that he had heard about what the video showed from anonymous text messages to him after his suspension. Further, prior to the suspension, Mr. Conry had written a report in Mr. Bazger’s presence acknowledging at least a distracting blow.

24The report of the second psychologist indicates that Mr. Bazger disclosed missing a critical part of the incident when an officer struck an inmate for the purpose of control. This report states that it became apparent that his memory did not encode these few seconds either because his eyes were looking in a different direction or he was so focused on clearing the code that his mind did not register the few seconds when this action occurred. The report observes that it is not uncommon for individuals not to be able to remember all the details of a crisis situation, as the body goes into a survival state and will disregard irrelevant information and only focus on information necessary for survival. The psychologist concludes, “Based on my opinion, Mr. Bazger appears to be an honest man with integrity who is very dedicated to his position as a Sergeant”.

25The reports from the psychologists support the uncontroversial notions that if one is looking elsewhere, one will not see what is happening, and that stress can interfere with perception. The second psychologist’s opinion that Mr. Bazger appears to be an honest man does not establish that the complainant was truthful in his account at the hearing and during the investigation. The psychologist did not testify, and thus was not subject to cross-examination, was only privy to whatever information Mr. Bazger provided during the assessment, and was simply not in a position to know whether the information was truthful or not.

26In any event, by October 15, Mr. Bazger acknowledged that he might have seen distracting blows in his peripheral vision. He makes a distinction between distracting blows, and the punches that Officer W testified occurred. Distracting blows may be acceptable for control in certain circumstances, and may be more likely to be found not to be excessive use of force, as they might involve less force than more direct punches or blows. Nonetheless, all the evidence supports that they are clearly considered use of force and that policy requires they be reported by anyone who witnesses them. It is for other staff to then determine whether the force used was justified or excessive in the circumstances. In this regard, Mr. Bazger made a further distinction as to reporting, saying that he had learned in his report writing training not to report what might have been seen, but only what had clearly been seen. He maintains that he did not see anything clearly enough to be sure.

27In the end, I have concluded that I do not have a sufficient basis to make a finding that it is more likely than not that Mr. Bazger saw more than he now admits. The video evidence is not helpful, as his full position at the crucial moment is not clearly visible, nor does it show where he was looking at the moment of the blows. In light of my finding below about Officer W’s account, I do not find a sufficient basis to discount Mr. Bazger’s account of his perception. Thus, I have concluded that what has been proven is less serious than what the employer believed before Mr. Bazger’s discharge.

28Despite the difficulty with the evidence about Mr. Bazger’s perception, the rest of the situation about his management of the core incident is not disputed. It is clear that, although being a very short distance away, and having the responsibility for care of the inmate involved, Mr. Bazger did not manage the incident in a way that maintained his focus on the inmate, or ensured that those with an opportunity to see reported what they saw. One might have thought that, having seen Mr. Conry push the first inmate against the wall on his way into the unit, Mr. Bazger would have been particularly attentive to how the second inmate was being treated a few moments later, on his way out of the unit. Separating Mr. Conry from the inmates might have prevented the blows to the second inmate. Nor did Mr. Bazger report or act to investigate his sense that something had happened, even if he thought it was not certain enough to report as a fact.

c) Did Mr. Bazger grab Mr. Conry’s arm?

29The second important disputed fact is whether Mr. Bazger grabbed Mr. Conry’s arm in an attempt to prevent him from punching the inmate again, as Officer W testified, and reported on October 15. The only other CO who spoke to the investigator of seeing Mr. Bazger restrain Mr. Conry did not testify. Nor did any of the several other staff who were potentially in a position to see this event. Therefore, the evidence that Mr. Bazger held Mr. Conry’s arm is not corroborated when there were likely several other witnesses in a position to corroborate it if it was an accurate recollection. As noted above, even the fact that there were punches instead of distracting blows has not been clearly established.

30According to the video evidence, Officer W was in front of Mr. Bazger when they first entered the sally port, but Officer W left the sally port after he did, having turned back to look into the living unit. This indicates that there were changes of position while in the sally port, but is inconclusive as to Officer W’s position at the time of the blows or just after, and whether her view was clear, given that there were several people in the sally port. Further, Officer W described being in a state of shock after having seen the blows. She told the investigators that she had been assaulted by inmates during a mini-riot a few months earlier, which heightened her upset at the situation she was put in during and after the October 5 incident. In any event, her evidence on a number of details of sequence and position of other people and herself does not accord with other evidence. For instance, Officer W told the investigators that Mr. Bazger took the inmate from Mr. Conry and passed him onto another officer, and insisted she did not leave the area right after the incident, but went into the module to talk to the other officers there. Neither the video evidence nor other witnesses’ evidence supports that testimony. Her incident report of October 15, and the transcript of her remarks to the investigators indicates that she told them that she went back to her unit when the code was cleared, which is more consistent with the available video and other evidence. Thus, I am not persuaded that her memory is entirely reliable about the details of the event, although the fact that there were blows to the second inmate is now admitted by Mr. Conry, and corroborated by the reports of several other CO’s.

31Messrs. Conry and Bazger testified that Mr. Bazger did not grab Mr. Conry’s arm. The video evidence is again inconclusive; it is not possible to see where Mr. Bazger’s and Mr. Conry’s arms were at the relevant moment. If Mr. Bazger seized Mr. Conry’s arm to stop him from hitting the inmate again, it would mean that they were both likely very aware that the blows had happened and were not condoned by Mr. Bazger. It would also mean that it was much less believable that the manner in which they each initially reported the incident was anything other than a conscious participation in the Code of Silence. Nonetheless, I do not find that the evidence is sufficiently persuasive to find with any confidence that Mr. Bazger did hold Mr. Conry’s arm to prevent him from further striking the inmate, given the frailties in Officer W’s evidence about surrounding events and the lack of corroboration despite the presence of several people who would have been in a position to see.

d) Conversations after the Code was cleared

32Continuing in time sequence, the next area of disputed fact concerns the conversations that took place in the control module shortly after the Code Blue had been cleared. Most important to this decision is whether Mr. Bazger directed the CO’s who wrote reports to omit any mention of the use of force.

33Not having his radio with him, Mr. Bazger went into the control module on the unit to clear the Code Blue. The CO who had been assigned to that post, and remained there throughout the incident, monitoring the unit, was in the control module, as well as Messrs. Conry and Chinn, the latter having returned from lunch shortly after the Code Blue was cleared.

34Mr. Bazger testified that he asked staff what happened, in the presence of Messrs. Chinn and Conry and his unit partner. He says that he stated that “we had a use of force package” and that there was a discussion about whether it was a use of force to separate the inmates in the way they were grabbed or held. Mr. Bazger had not been there to see the manner in which the two inmates had been separated, so he had no first-hand information about that part, but he had seen portions of the escort of both inmates through the sally port. He says he did not mention what he had seen on his way into the sally port because he did not want to influence what the CO’s put in their reports. He testified that Mr. Chinn said it was not going to be a use of force, and then Messrs. Bazger and Chinn discussed who was going to be responsible for the paper work.

35Mr. Conry testified similarly to Mr. Bazger that the discussion in the module about use of force related only to the separation of the inmates, including the manner in which the inmates’ jumpers were held, with Mr. Chinn maintaining that it was not a use of force, and Mr. Bazger that it was. He testified that the subject of any other use of force was not raised in the module. Further, Mr. Conry did not recall any discussion in the module about who would be writing reports, saying he assumed the three most directly involved would be doing so. He denied emphatically that Mr. Bazger said that he did not want anyone mentioning use of force in their reports. He also denied that Mr. Bazger directed him or the two other CO’s to coordinate their reports.

36Mr. Chinn did not testify, but a transcript of his interview with the investigators was in evidence. In cross-examination, employer counsel referred Mr. Conry to Mr. Chinn’s statement in the transcript to the effect that Mr. Bazger had told him it was a “nice clean package”, meaning in context, no use of force, and no complications. Mr. Conry testified he did not recall this. Nor did Mr. Conry recall any discussion about what CO’s would be writing occurrence reports, but he assumed that he and Officer W who had broken up the fight, as well as the CO assigned to the control module would be writing reports because they had been directly involved.

37The CO who had been assigned to the module during the Code Blue wrote in an Occurrence Report that Mr. Bazger had asked them not to put any use of force in their reports, and testified similarly at the hearing. This CO was very new to her job, and Mr. Bazger’s counsel argued that it is just not credible that, even if he wanted to cover up the use of force, that he would do so blatantly with someone so new. Complainant’s counsel urged a finding that the two witnesses who testified to pressure from Mr. Bazger had the very plausible motive for fabricating this that it would lessen their personal responsibility in their now admitted failure to come forward in the first instance. By contrast, the employer’s argument was that coming forward about use of force despite potential repercussions added to their credibility.

38Although the conversation in the module after the incident is not specifically mentioned in the discharge letter, what happened there is relevant to the credibility issues engaged by other portions of the reasons for discharge, such as cover-up and failure to properly manage the situation. The report of the investigator found that the allegation of acts of coercion in the module had not been substantiated. My review of the evidence leads me to a similar conclusion, on the basis that none of the other participants in the conversation corroborated the version alleged by the CO assigned to the control module. I consider it possible that the conversation between Mr. Bazger and Mr. Chinn in the module about whether the manner of separating the inmates was a use of force might have formed the basis for the perception that the CO’s were being told not to mention use of force, as Mr. Chinn took the position that the separation of inmates was not a use of force, and the officer assigned to the module understood he would be doing the paperwork to report the incident, as it was his unit.

39As well, the fact that Mr. Bazger had been in the sally port at the time of the blows, but did not insist on a use of force package with Mr. Chinn could easily have been taken as a signal that no use of force was going to be acknowledged. The CO’s may well have believed that Mr. Bazger had seen the blows to the second inmate. The Code of Silence does not likely always work on explicit communication, but also on assumptions based on prior experience. Further, the evidence is convincing that some of the officers who did not report the use of force they had witnessed were on edge, wondering when or if things would come to light, and what the consequences might be. This very likely provided reason to interpret information consistent with their own failure to report the significant use of force they had witnessed. Officer W and the officer assigned to the control module both testified that they were sharing information and concerns about the situation, so it is very likely that impressions from the conversation in the module were shared with Officer W as well.

40Mr. Bazger testified that he did not insist when it became clear Mr. Chinn did not think a use of force package was needed because it was Mr. Chinn’s unit. The idea that Mr. Chinn did not think there was a use of force, and therefore no use of force package was needed, is corroborated in the transcripts of his interview with the investigators and that of the RMT manager Fehler, who had a discussion with Mr. Chinn to similar effect.

41Mr. Bazger testified that he took Mr. Chinn out in the hall to tell him he had seen Mr. Conry push the inmate against the wall, and that Mr. Chinn did not want to hear about it, so he did not argue with him, because he did not feel he should tell the manager of another unit what to do. He said he decided he would write what he saw and that he knew the Risk Management Team would recognize that force had been used, and ask for a use of force package once they had seen the occurrence reports. Although Mr. Chinn denied this occurred in his interview with the investigators, he did not give evidence, and there is no other evidence contradicting Mr. Bazger’s on this aspect of the evidence.

e) Dealings with Officer W concerning OR's

42Officer W told the investigators and testified that Mr. Bazger pressured her to omit any reference to use of force in her Occurrence Reports, on a number of occasions on October 5 and 15 in particular. She alleges that he told her that only three people would be writing reports because it would be easier to control and to ensure the story was consistent. She maintains that she asked him if he was aware there were cameras on the unit and one which takes in the sally port area, and that he said that she worried too much. She further testified that he made reference to how other CO’s who had reported use of force by staff in past incidents were treated afterwards by peers, and specifically how a CO who had worked with them had had to leave the institution after he reported a use of force but that things had followed him to other institutions.

43Mr. Chinn told the investigator that he called Officer W to ensure that a report was being written and to advise that Mr. Conry was available to give information about the inmates on the unit where the altercation occurred. As officers from other units might well not know the names or offender numbers of the inmates involved, this is an innocent explanation for part of what Officer W recounted as harassment on the part of Messrs. Bazger and Chinn. Officer W’s testimony by contrast, was that when Mr. Chinn called her, she could hear Mr. Bazger’s voice in the background telling Mr. Chinn to make sure there was no mention of use of force in her report. Mr. Bazger categorically denies this, as did Mr. Chinn when asked by the investigators.

44Mr. Bazger says that he went back to his office, after the code was cleared to write his report and realized he did not know the names of some of the officers who responded. He asked the two officers who had separated the inmates but they either did not remember or did not want to tell him. By contrast, Officer W testified that Mr. Bazger came to see her, and that when she said she could not remember, he said that was good, because the fewer people writing reports, the better.

45Officer W testified that she had a conversation the same day with Mr. Conry about whether they should both just tell the truth, and that he advised her to just do what Messrs. Chinn and Bazger wanted her to do, in context meaning to omit the use of force from her reports. Mr. Conry denies there was any such conversation. Moreover, he said that the comments Mr. Bazger is alleged to have made directing him, Officer W and the CO assigned to the module to omit the use of force in their reports did not occur in front of him.

46There were no witnesses to the conversations on October 5 between Officer W and Mr. Bazger, in which he is said to have given specific direction to omit any mention of use of force from her report. Counsel for the complainant argued that it is just not in line with the inherent probabilities of the situation that Mr. Bazger would be involved this way with an officer with whom he had had negative interactions in the past. They each acknowledged in their evidence that there was a history of mutually unsatisfactory interactions with each other.

47As noted above, employer counsel urges a positive view of the credibility of Officer W because she had the courage to come forward with the report of the blows to the inmates when the other witnesses had not. The fact that she came forward is indeed commendable, and Officer W’s observations of the blows have since been corroborated by several other witnesses. Nonetheless, many of the details she testified to have not. As with almost all of the witnesses, it is clear that some of her observations were reliable, and some were not. The challenging task is to attempt to discern which category any particular part of the evidence falls into. In line with the approach in Faryna v. Chorny, cited above, I am persuaded that it is not in accordance with the preponderance of probabilities that Mr. Bazger would engage in the manner alleged with Officer W in particular.

48There is much about Mr. Bazger’s actions in response to the incident of October 5, such as his not directing everyone at the scene to write reports, and conceding the point of whether a use of force package was needed to Mr. Chinn in front of the CO’s in the module, that is ambiguous enough to be legitimately subject to the interpretation that Officer W took from it. However, other features of the evidence persuade me that it is more probable than not that he did not give the direction to omit the use of force she described. There is the fact that Mr. Bazger argued that it was a use of force in the module, according to all of Messrs. Chinn, Conry and Bazger. Mr. Chinn, who took the position there was no use of force, was no friend of Mr. Bazger’s, according to his remarks to the investigators. Yet, Mr. Chinn denied that Mr. Bazger directed him to tell Officer W to make sure there was no use of force, when he was on the phone with her.

49As well, Mr. Bazger knew shortly after the conversation in the module that Mr. Conry’s report included details of what Mr. Bazger considered to be use of force in separating the inmates, i.e. that Mr. Conry had escorted both inmates holding their jumpers at the shoulder and sleeve. He testified he believed the Risk Management Team would upgrade the incident to a use of force, with the likely result that the video footage of the incident would be reviewed, which is what happened. Given his position in the module that there had been a use of force, it does not seem likely that he would risk his own job by baldly directing Officer W to omit any mention of force, especially since he knew she was not of a positive disposition toward him. Further, other than the control module conversation dealt with above, there is no evidence that there was any attempt to tell officers not to write reports or to omit use of force, making it less likely that Mr. Bazger could have thought the situation could be controlled in this way.

50In addition, there is Officer W’s attitude towards Mr. Bazger in her evidence, which included indulging in generalized insults towards him during the course of her testimony and negative characterization of even the most routine directions. In regards to the latter, as one of the officers who was directly involved in breaking up an inmate altercation, Officer W was clearly required to write a report, according to policy, and her own and others’ evidence, with or without direction. She told the investigators that she knew she had to write a report. Nonetheless, in her testimony Officer W added that she and the officer assigned to the control module were chosen by Mr. Bazger among all the people who responded because they were women and were the weakest link. Mr. Bazger’s failure to direct others to write reports is indeed problematic. However, the conversion of an obvious responsibility of her own into harassment by the incident manager demonstrates a lack of objectivity towards Mr. Bazger and a tendency to exaggerate in his regard at the very least, which calls into question the reliability of her account.

51There is a specific reference in the letter of discharge to Mr. Bazger’s having engaged in acts of coercion on October 15, when he was made aware that Officer W was not completing the addendum as she was requested, and having orchestrated a meeting to question her about it. In her evidence, Officer W said Mr. Chinn harassed her about changes to her report on October 14, and Mr. Bazger on October 15. From her point of view, the managers were trying to dictate what she wrote as part of their attempt to direct her to omit any mention of use of force.

52From Mr. Chinn’s point of view, as set out in his remarks to the investigators, he was attempting to comply with directions from Mr. Fehler of the Risk Management Team that Officer W should correct certain spelling errors, and lack of clarity about details of her involvement with the separation of the inmates. Mr. Chinn’s position throughout, which has been accepted by the employer, is that when he approached Officer W on October 14, he only knew about the potential of the use of force involved in the separation of the inmates and their escort out of the living unit, as opposed to Mr. Conry’s pushing or striking of the inmates in the sally port.

53Four days before Mr. Chinn asked Officer W to make corrections to her report, Mr. Fehler had already instructed him that what Mr. Conry had written in his initial report constituted use of force, and that the use of force paperwork was required. Mr. Chinn then advised Mr. Bazger of this. By this point, neither he nor Mr. Bazger could have been under any illusion about whether the incident was being treated as a “simple” inmate on inmate altercation, so that it was likely the incident would be looked at more closely to see what amount of force had been used. Mr. Bazger had already taken photos of the inmates on October 10 required by the fact that Mr. Fehler had determined that force had been used, and written an OR dated that day documenting this. The likelihood that the video would be viewed was by then very high, even though Officer W had not yet written her report disclosing that Mr. Conry had delivered blows to the inmates.

54Although there is no evidence that any of the details of the interaction with Mr. Fehler, Mr. Bazger and Mr. Chinn on the subject of upgrading the incident to a use of force package was shared with Officer W, the undisputed fact that it occurred makes it even more implausible that either Mr. Chinn or Mr. Bazger were trying to persuade a CO that there was no use of force any time after October 10. As Mr. Chinn explained to the investigators, at this point, he thought that Officer W thought he was playing some kind of game, but that he was not clear on why she thought that. In retrospect, he understood she thought that his relaying Mr. Fehler’s request for an addendum was harassment, essentially seen as interference with her disclosing the larger truth, when that is not what he intended.

55According to the transcripts of their interviews with the investigators, Mr. Chinn mentioned to Mr. Fehler that he was having trouble getting cooperation from Officer W, as she seemed to be taking a long time to make what he considered straightforward grammatical and other changes. At Mr. Fehler’s suggestion, on the basis that Mr. Bazger was a full-time manager, and Mr. Chinn was still only in an acting capacity, Mr. Chinn asked Mr. Bazger to assist in getting Officer W to make the corrections Mr. Fehler had requested. Mr. Chinn gave Mr. Bazger the report which still had grammar issues, and also suggested a union representative might be helpful.

56Mr. Bazger had a meeting with Officer W early on October 15, in which he asked her to make the changes Mr. Chinn and Mr. Fehler had requested. He met her a second time after lunch after she delivered a revised report to him and he had read the portion which stated that Mr. Conry had run the second inmate’s face across the bars of the sally port and punched him, and that Mr. Bazger had stopped him from continuing. Mr. Bazger testified that he thought she was lying because he knew he had not held Mr. Conry’s arm, and he knew Mr. Conry as someone who would never use excessive force. He testified that he jumped to the conclusion that it was all untrue, and went to security to try to see the video, and to the deputy superintendent to discuss suspending Officer W for lying. He told Mr. Chinn about it, and called Officer W to a meeting with himself and Mr. Chinn in which he intended to suspend her. He acknowledges that he was agitated that afternoon, and that he panicked when he read that she was alleging that he had seen an officer punching an inmate and not reported it for ten days.

57There is a difference in the evidence of Officer W and Mr. Bazger over whether the addendum Mr. Bazger had been given by Mr. Chinn, and that he discussed with Officer W on the morning of October 15, contained the reference to Mr. Conry’s excessive use of force. Unfortunately, Officer W shredded that document after she left Mr. Bazger the first time on the 15th,so I am not in a position to resolve that issue with any confidence. Mr. Bazger acknowledges that he should not have given the document back to her, and although Officer W acknowledges that shredding official documents is improper, she testified she did not consider it official because Mr. Chinn had not given it to the superintendent, but to “his friend” Mr. Bazger instead. In any event, by the second meeting, the reference to the excessive use of force was there, and the grammar and spelling mistakes had been corrected.

58Officer W and Mr. Bazger agree that he asked her about the reference to the excessive use of force and why it had not been in her earlier report, and that she said that it was because Mr. Chinn and Mr. Bazger had been bullying her, at which point Mr. Bazger stated that she needed to get a union representative. They also agree that there was a mention in one of their meetings on October 15 to Mr. McLeod, a former deputy superintendent. Mr. Bazger’s version is that he made reference to Mr. McLeod in the context that Mr. McLeod would have authorized a suspension the day before for insubordination for refusing to make the changes Mr. Chinn had requested, given that Mr. McLeod had acted on his recommendation for discipline in the past. Officer W’s version is that Mr. Bazger stated that since Mr. McLeod was gone, the scrutiny and pressure to tell the truth was no longer like it used to be, and that there was no need to write what she wrote. As with Officer W’s similar testimony dealt with above, I do not find her version to be in accordance with the probabilities in the circumstances.

59Mr. Chinn was asked by the investigators about the second meeting of October 15th, and his account is corroborative of Mr. Bazger’s version to the effect that the latter believed the report to be untrue and questioned her about why she had shredded the earlier report and why the report was different from what she had initially reported. On the other hand, the details that he provided shed light on the tone of the meeting, and are corroborative of Officer W’s account in terms of the idea that Mr. Bazger’s demeanour was likely somewhat loud and overbearing and that she was distraught. Mr. Chinn told the investigators that he told Officer W that all he was looking for was for her to answer the questions Mr. Fehler asked, and fix the spelling and grammar, and that he explained to the union representative that if this was the report Officer W wanted to submit, they would take it, but they wanted her to realize all the things that might take place after. The representative indicated that such a discussion had already taken place. Nonetheless, the suggestion from Mr. Chinn is very open to the interpretation that the managers were suggesting that it would be better if she did not submit the report with the mention of the blows to the second inmate, and just answer the question that Mr. Fehler had asked about how the inmates were separated and fix the grammar and spelling mistakes. Mr. Bazger testified that his purpose in meeting with Officer W was more directed at his view that she should be suspended for filing an untrue report.

60In any event, once the union representative had made it clear that Officer W did not intend to make any further changes, the meeting ended, and Officer W went to the security office with her union representative to submit the report. As events unfolded, Mr. Bazger did not pursue suspending Officer W once she had left the meeting. As to the allegation that Mr. Bazger engaged in acts of coercion, it is clear that Officer W was not coerced into doing anything at that meeting. She testified, and Mr. Chinn is recorded as having told the investigators, that once the union representative had arrived, most of the conversation was directed at the representative rather than Officer W. Nonetheless, the whole sequence of confronting Officer W about her report, in the agitated state Mr. Bazger admits he was in, was a failure in effective management of the situation. Further, as noted, the suggestions made in the meeting, together with Mr. Bazger’s allegations that what she had written was a lie, persuade me that it is very likely that Officer W felt threatened in the situation.

61Shortly thereafter, having been informed by the security manager that he was not allowed to see the video of the incident, Mr. Bazger met with Mr. Dunscombe, then Acting Deputy Superintendent, and apprised him of the situation. Mr. Dunscombe reviewed the video, determined that Mr. Bazger was directly involved, and asked him to give him the package of paperwork that he had been working on.

62There is a conflict in the evidence as to how explicit Mr. Dunscombe’s direction to Mr. Bazger was when he took the paperwork back. There was no allegation in this respect in the discharge letter, but it is relevant in any event because it has bearing on the allegations in respect of Mr. Bazger’s assistance to Mr. Conry in producing his occurrence reports, which will be dealt with below.

63Mr. Dunscombe testified that he took the file from Mr. Bazger and said he would now be handling the file personally. Further, he said that when Mr. Bazger responded that he needed it because there were outstanding reports, he told him that if anyone approached him with any reports, he was to send them directly to himself, and to have no further involvement with the file. A few days later, Mr. Dunscombe made a summary intended to serve as a basis for briefing others as to the chronology of events, and he wrote “Mr. Dunscombe orders the incident package turned over to him from Mr. Bazger. He instructs Mr. Bazger to forward any future inquiries about the incident directly to him.” Mr. Bazger recalled that he was paged to return to Mr. Dunscombe’s office, and he thought they would be reviewing the video. Instead, Mr. Dunscombe said to give him the package and, “that’s it”. Mr. Bazger said he took the direction to mean that that he was “done” with the file, and he handed the file over on the spot. He denied that Mr. Dunscombe told him to have no further involvement with the incident at all, and testified that he did not think he was contravening an order from Mr. Dunscombe when he typed an occurrence report for Mr. Conry on October 16.

64Mr. Dunscombe’s direction to Mr. Bazger on October 15 is something about which apparently no issue was made at the allegation meeting or at any time closer to the events, creating a circumstance where I find it credible that the two would have honest but different recollections of the event. As well, Mr. Bazger was, by his own account, in an agitated state on the afternoon of October 15, such that the idea that he did not absorb all the implications of Mr. Dunscombe’s direction is quite plausible. Mr. Dunscombe did not put it in writing to Mr. Bazger, but the contemporaneous note he made close to the time of the event is not inconsistent with Mr. Bazger’s testimony about what he understood, being that he should hand over the file, and that he was being relieved of any further responsibility for the paperwork.

f) Mr. Bazger’s Work on the LIR and the updated Incident Report

65The letter of discharge alleges, as one of the headings of failure in managerial duties, that Mr. Bazger omitted the use of force by CO Conry in the LIR. Mr. Bazger testified that he volunteered to help prepare the LIR after Mr. Fehler had told him that Mr. Chinn was unsure of how to do one, and because he enjoyed doing them as a means to further develop his English skills. He did not explain in his testimony why there is no mention in the LIR of the pushing incident he witnessed on the way into the sally port, but the notes of his allegation meeting indicate that he said at that time that the LIR was not complete, that he was waiting for further reports. Mr. Dunscombe confirmed in his evidence that an LIR is not complete until all the reports are collected, and that several were outstanding at the time he took the paperwork from Mr. Bazger. Mr. Bazger told the investigators that he redid the LIR and sent it to Mr. Fehler on October 13, but that he might not have sent his own OR at the time. Thus, his updates at this time were limited to the amount of force disclosed in the separation of the inmates, and not the pushing he had himself clearly viewed, or the shuffle in the sally port which he may have observed in his peripheral vision.

66Nonetheless, after Mr. Bazger gave up the LIR, it was moved onto the regional office, without amendment to include mention of Mr. Bazger’s observations, or of Officer W’s report of the punches, despite the fact that, by that time, his report of the pushing in the sally port had clearly been reviewed in the meeting Mr. Veith attended with the superintendent, and Officer W’s report of the blows to the second inmate had been corroborated by viewing of the video by several senior people in the institution.

g) The Switched Occurrence Report Allegation

67At the hearing of this matter, some 16 months after the incident in question, the employer alleged that Mr. Bazger had first filed an Occurrence Report with no mention of use of force, and then replaced it with one which reported some use of force, on October 15, once it was clear that it was known to senior management that Mr. Conry had struck the inmates. Complainant’s counsel objected to the admission of evidence related to this allegation on several grounds. In summary, it is the complainant’s position that the electronic evidence on which the allegation was based was improperly and illegally obtained, and alternately, that the evidence represents an improper expansion of grounds for discharge, as an allegation not investigated with the other allegations or relied on in the termination letter, and made too late for the complainant to properly defend against.

68The parties eventually agreed that the evidence would be heard, and its admissibility dealt with in final argument. Although I will briefly set out the parties’ arguments on the expansion of grounds and the manner in which the evidence was obtained, I do not, in the end, find it necessary to deal with those issues, or to analyze the relevant case law. That is because, after a very careful review of the evidence, I do not find that the allegation that Mr. Bazger switched his occurrence reports has been made out on clear and cogent evidence, as elaborated below. Therefore, I have not included this as one of the aspects of Mr. Bazger’s misconduct.

69The facts related to the allegation that Mr. Bazger switched his reports start with the fact that, on October 5, the day of the incident, Mr. Chinn collected reports from the three officers most directly involved and from Mr. Bazger. Mr. Chinn forwarded a package of documents to the RMT that day or the next, but there is no clear evidence about what reports were in the package. Mr. Ewing of the RMT and Mr. Veith, who was working in the security office, concluded that the manner of separating the inmates by Officers Conry and W likely included the use of force. Mr. Veith testified that he recalled reviewing reports from Mr. Bazger and the officer assigned to the module at the time as well, and that neither of them indicated any use of force. Mr. Ewing had to leave for urgent reasons, and apparently left the package for review by Mr. Fehler, the senior member of the RMT, who contacted Mr. Chinn to upgrade the matter to a use of force package.

70Mr. Veith testified that he was part of a meeting with Superintendent O’Connell and Mr. Dunscombe on October 16, the day after Officer W had reported that Mr. Conry had punched one of the inmates, during which the paperwork Mr. Dunscombe had retrieved from Mr. Bazger was reviewed. When Mr. Veith read the report from Mr. Bazger in the package which describes Mr. Conry’s having pushed the first inmate, he remarked that it was not the same report he had reviewed before. Nothing further was done about that observation at the time.

71Not long before the first day of hearing, Mr. Dunscombe requested and received authorization to access Mr. Conry’s and Mr. Bazger’s government e-mail accounts. He was granted access on a "read-only" basis from senior officials using a form that contains wording to the effect that it is not to be used for accounts of persons who no longer work for the Ontario Public Service, which was the case for both Messrs. Conry and Bazger. Thus, it is the complainant’s position that no effective authorization was given to Mr. Dunscombe to access the computer records, as they did not follow even their own internal procedures, making it at least an unreasonable method of access. Further, counsel argues that the access was unreasonable because the employer did not explore other alternatives to obtain the material, such as asking the complainant and counsel, as well as Mr. Conry.

72Counsel for the complainant argues that there is a legitimate expectation of privacy in the material that was accessed, because it was password protected and a mixture of personal and work-related material, even if it was found on an employer-owned computer. In order to respect the complainant’s right to privacy and have the access be legal, counsel submits there had to be a reasonable basis to access the computer material, and the access must be done in a reasonable manner. In the complainant’s submission, neither was the case here. In support of these arguments, counsel relies on the following decisions: Labourers’ International Union of North America, Local 625 v. Prestressed Systems Inc. (Tidal View Manor); Grievances of Roberts, 2005 CanLII 94167 (ON LA), 137 L.A.C.(4th) 193 (Lynk) and Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of Government and Consumer Services) Grievances of Bhattacharya, GSB #2014-1191 (ON GSB), 2016 CanLII 17002 (Anderson).

73Acknowledging that Mr. Bazger had offered access to his computer accounts to the superintendent and to the investigators before he was fired, counsel for Mr. Bazger submits that if access had been sought at that time, it could have been a joint project with the parties on more equal footing and some protection for the complainant as to what the employer had access to. Further, Mr. Bazger says that he had a personal lap-top in his locker at work when he was escorted out, which he used to draft reports and use an editing software program to improve his English in his reports. That computer has not been located since his suspension, with the result that neither he nor the employer has had access to the records on that device, which Mr. Bazger claims are key to understanding his actions in regards to various drafts of occurrence reports.

74By contrast, employer counsel argues that the evidence collected post-discharge should be considered as it is relevant to credibility and to the allegation that Mr. Bazger covered up a use of force, and whether he can be trusted to be part of the managerial front-line in combatting the Code of Silence. Further, it is the employer’s position that there was no reasonable expectation of privacy for work-related content on the employer’s technology. As well, in the employer’s view, Mr. Bazger effectively waived any objection to access when he gave his password to the investigators, and gave verbal consent to the superintendent at the allegation meeting. The employer is also of the view that the evidence about Mr. Bazger’s electronic documents does not amount to an expansion of grounds for discharge. Rather, in the employer’s view it is a response to the union’s case that Mr. Bazger had in fact reported the use of force in the first instance. Further, the complainant was given notice of the evidence well before his own testimony, so that he had an opportunity to respond to the evidence. Employer counsel submitted that the search was reasonable, and was done in a reasonable way. Further, counsel refers to the Supreme Court of Canada’s decision in R. v. Cole, [2012] 3 SCR 34, 2012 SCC 53, where even in a criminal matter, and in the face of a finding of an unreasonable search, the Court admitted the evidence, because the exclusion of the material would have had a marked negative impact on the truth-seeking function.

75Returning to the factual issue about whether Mr. Bazger switched his Occurrence Reports, when Mr. Dunscombe accessed the complainant’s email folder, he found three Word documents on Ministry OR forms, all dated October 5, 2013 on their face. The first two are the ones that it is alleged were exchanged. Four uncontroversial paragraphs are identical in both documents. One of the documents was indicated by the system as created on October 5 and modified on October 6. It mentions nothing about Mr. Conry’s having pushed an inmate. The only wording in this document that could be construed as any indication of use of force is the observation that Officer Conry escorted the second inmate holding his left arm in a C-clamp hold, as other evidence indicated that any physical influence on the movement of an inmate could be considered force. Although not conclusive of whether or not this was the document reviewed by the RMT in the days following the incident of October 5, the reference to the C-clamp hold is not mentioned in the evidence of Mr. Veith, or the transcripts of the interviews with the two other people who would have reviewed it if it was in the material reviewed by the RMT shortly after October 5.

76The second document dated October 5 found by Mr. Dunscombe mentions nothing about the c-clamp hold, but has clear details about Mr. Conry’s pushing the second inmate. Despite the date of October 5, on the face of the document, the system data indicates it was created on October 15, 2013 just after 5 p.m. and modified at 6:27 p.m. on the same day.

77As for the third OR in that folder dated October 5, it bears the same heading as the first two, and the system has marked it as created on October 15, 2013 at 6:30 p.m. and modified on October 16 at 10:29 a.m. Its content is clearly composed after October 15, as it relates partially to events of that date. Mr. Bazger testified that the timing of the saving of the second, and the creation of the third, and the fact that the headings were the same means to him that he created the third document by using the second as the starting point.

78On cross-examination, Mr. Veith said he recalled that there were four Occurrence Reports in the package he reviewed on October 7, but that there could have been more. If there were only four, one of either Mr. Chinn’s or Mr. Bazger’s was not there, as a combination of Mr. Veith’s evidence and the transcript of Mr. Fehler’s interview with the investigators indicates that those of Mr. Conry, Officer W, and the officer assigned to the module were clearly there. In any event, Mr. Veith was sure there was no reference to pushes against the sally port in what he initially reviewed. Mr. Veith was asked if the reason he did not write an occurrence report alleging that Mr. Bazger had altered his occurrence report was because he was not sure that he had. He said that he was not sure why he did not do that, that it might have been an oversight, and that he could not remember everything that was going on at the time, being it was two years earlier. Further, he said he did not think that anything came up from Mr. O’Connell or Mr. Dunscombe, such as asking him to make notes of such a serious allegation.

79According to the transcript of his interview, Mr. Fehler, the other member of the risk management team, reviewed the package when he came in on Wednesday, October 9. Mr. Fehler told the investigators he read the first three occurrence reports, being those of the officer from the module, Mr. Conry and Officer W, and concluded from those three reports that there was a use of force, and returned the file to Mr. Chinn to do a use of force package. He said he went through the file, and noted all the things that needed to be done. There is no mention in his remarks to the investigators of Mr. Bazger's occurrence report, or of any other report than the three most directly involved, or of any use of force other than the possibility of force used in the separation and escort of the inmates. He was not asked about Mr. Bazger’s report or the possibility of the substitution of an occurrence report, an issue not put to the investigators.

80Mr. Bazger testified that the report describing the pushing of the inmate was created on October 5, and that he gave it to Mr. Chinn, but that he does not know what Mr. Chinn submitted. Mr. Bazger’s explanation for the creation and modification of an OR form in his folder on October 15 is that this would have been something he did to transfer documents from his laptop shortly after giving the paperwork to Mr. Dunscombe, in that he knew he was finished with it. He denies that it was the creation of a modified OR. He explained that, as English is not his first language, he was in the habit of working with documents on his own laptop, and running them through an editing program which he found greatly improved the quality of his written work. He would then transfer the work to the Ministry folder in a variety of ways, including using a USB key, or a cable hooking up his laptop to the Ministry computer and transferring it. Having not been asked about this close to the time it occurred, he could not remember which method he used.

81Further, Mr. Bazger had tried to recover his laptop which was at the institution when he was suspended, but had been informed that it could not be found. He demonstrated at the hearing that if one takes a computer document and alters anything, even as innocuous as spacing, the system will record it as a modification of the document. There was no evidence contradicting this evidence about how the computer recorded changes in documents, and it is credible that he would not remember how he saved documents over two years earlier, when not asked about this nearer the time of their creation. Nor was their evidence contradicting his evidence that he had been authorized to use his laptop to work on reports in this way.

82I accept the employer’s submission that the after-acquired evidence, together with Mr. Veith’s observations, raises a valid question as to whether the complainant substituted an OR with mention of force used in pushing the second inmate against the sally port for one that omitted that fact, and only mentioned that he had witnessed Mr. Conry escorting the inmate with a C-clamp hold. I also accept that it is not likely that all of Messrs. Chinn, Veith, Ewing and Fehler would have read the document with the reference to pushing the inmate and failed to notice it was an incident of use of force. Nonetheless, there are important missing links concerning the switched OR issue.

83To start, there is no evidence that the electronic document with only the description of a C-clamp hold found in Mr. Bazger’s account, created on October 5 and modified on October 6, was ever printed and submitted to anyone. There is no date stamp indicating receipt on any of the Occurrence Reports, as there are on documents received by the CISU and the regional office of the Ministry. Nor was there evidence of any scanning or copying of the reports to ensure ability to track the content of what was submitted and when. Although there is a space for a signature of the reviewing manager on the OR form, there is no indication on Mr. Bazger’s reports prior to October 15 as to when they were received and by whom. As well, as Mr. Dunscombe acknowledged in cross-examination, there is no way to independently confirm what was in the package on October 7 when it was reviewed by Messrs. Ewing and Veith, or a few days later by Mr. Fehler. The furthest the evidence goes is that Mr. Veith, when presented with the wording of the document found on the computer two years after the incident, said that to the best of his recollection, it was what he reviewed, because it did not indicate any use of force. Mr. Veith was a straightforward witness, but this description of what the report did not say is very generic, and does not give confidence that he was in a position to identify it, especially as, to his credit, he candidly acknowledged that he could not be sure of all the circumstances from two years earlier.

84The transcripts of the interviews with Mr. Chinn and Mr. Fehler indicate clearly that the reason the latter returned the incident package for preparation of a use of force package had to do with the separation of the inmates. Pushing or holding against the window is not mentioned. Mr. Fehler's transcript refers to reading the three occurrence reports of the CO’s initially involved; he does not mention any others. Presumably because the allegation about the switching of the incident reports had not been made prior to the investigation, there is no evidence that any of Messrs. Fehler, Chinn, Veith or Ewing were asked about these details by the investigators. Further, Mr. Chinn told the investigators he was not sure he had read the reports before he submitted them on October 5, although he did believe there was one from Mr. Bazger in what he submitted. When his attention was directed to the portion of Mr. Bazger's report that says that Mr. Conry pushed the inmate back against the wall, he could not recall reading that. However, these remarks are completely opaque as to whether he did not remember because he did not read it or whether that content was not there.

85Further, I am not persuaded that what is in the electronic folder that Mr. Dunscombe found is a complete record of Mr. Bazger’s drafts or printed OR`s in respect of the incident of October 5. For instance, that folder does not appear to contain the incident report Mr. Bazger submitted on October 10 about taking the secondary photos after Mr. Fehler had upgraded the package to require use of force documentation. Whether it was done on Mr. Bazger’s missing laptop, or some other computer account, is not in evidence.

86At the hearing of this matter, considerable attention was given to the timing of the handing over of the incident package to Mr. Dunscombe, raising the issue of whether the computer timing is consistent with Mr. Bazger’s having substituted a new occurrence report between the time Mr. Bazger first approached Mr. Dunscombe on October 15, and when he handed him the package later in the day. There are varying indications in the evidence about the timing of events that afternoon, some of them supporting a sequence in which Mr. Bazger would have handed the package to Mr. Dunscombe before the period 5 to 6:30 p.m. when the computer marks the document as being created and modified. For instance, Mr. Bazger’s report, written the next day, indicates that he handed the package to Mr. Dunscombe at 4 p.m., which is consistent with the sequence outlined in Mr. Chinn’s OR to the effect that Mr. Bazger showed him Officer W’s OR at about 2 p.m., and Mr. Chinn’s comments to the investigators that they had a meeting with her shortly after, followed by the turning over of the paperwork to Mr. Dunscombe as soon as that meeting was over. This also is consistent with Deputy-Superintendent Partridge’s OR which said that Mr. Bazger came to see her at 1:50 p.m. about suspending Officer W and that she left around 3 p.m. As well the security manager’s report states that Mr. Bazger came to see him around 2:00 p.m. to see the video, which apparently occurred just before his meeting with Officer W.

87Mr. Dunscombe became involved on October 15, according to his evidence, after having noticed Officer W talking to the officer who had been in the control module during the incident of October 5, who was in tears. That officers evidence indicated this would have been shortly before her 3 p.m. shift, and that she and Officer W were discussing the fact that Officer W had disclosed that Mr. Conry had hit the second inmate. Mr. Dunscombe did not write an OR at the time, but wrote in notes not long after that Mr. Bazger brought him Officer Ws report at about 4:15 for the first time. On the first day of his direct-examination he put the time of receipt of the whole package from Mr. Bazger at about 5:15, after he had viewed the video, which would tend to corroborate Mr. Bazger’s evidence that what he did on the computer between 5 p.m. and 6:30 was not the alteration of his first OR, but a process of clearing his laptop and writing an OR about the events of October 15.

88In cross-examination, Mr. Dunscombe first said he viewed the video at about 5 p.m., and received the package from Mr. Bazger after that. Later, he said he left his office to view the video at about 4:20 and was gone an hour and a half to two hours, after which he called Mr. Bazger back to retrieve the paperwork, which would put the second meeting where he retrieved the package close to or after 6 p.m. At one place in the transcript of Mr. Chinn’s interview with the investigators, he indicates that Mr. Bazger showed him Officer W’s report around dinner time, being 4 to 6 p.m., substantially later than the indication in his OR, written closer to October 15. There is no other evidence before me to pin down the timing.

89In the end, I have concluded that even if it were possible to reconcile the various indications of timing to a clear probability, it would not answer the basic question of whether Mr. Bazger substituted an OR with mention of Mr. Conry’s having pushed an inmate against the sally port for one which did not. This is because Mr. Bazger had been aware since October 10 that the matter was being treated as a use of force, and thus had five days, rather than a short period of time on October 15, to have switched occurrence reports if that is what he did.

90However, I am not in a position to find that it is more probable than not that Mr. Bazger filed a report on October 5 with only the mention of a C-clamp hold, and later substituted one with a description of pushing the inmate. This is because there is no proof of what was sent to the RMT by Mr. Chinn, who, as noted above, was not sure he had read what he passed on. Nor is there other clear evidence about what the RMT received or read. Without some ability to be clear on the content of what the RMT read, it is very difficult to get to the clear and cogent standard of proof required.

91Further, if Mr. Bazger had switched reports, it is hard to understand why he would offer access to his email and computer account on several occasions, if he thought it would show he had done so.

g) Participation in producing Mr. Conry's reports

92The discharge letter mentions that Mr. Bazger had staff email him reports, and that he typed Mr. Conry’s addendum on October 16. Mr. Bazger acknowledges these statements as factual, but explains his conduct in a non-blameworthy way. He described learning from his mentor Mr. Fehler how to assist in the preparation of LIR’s and other reports in a way which reduced the chances of their being returned for corrections and clarifications, which slowed down reporting and dealing with incidents. He testified that he knew that he was not to influence the content of reports and maintained that he had not done so on the two occasions on which he assisted Mr. Conry in producing reports of the incident here in question. Mr. Bazger’s testimony that he had also helped several other officers in a similar manner was not contradicted. As well, when commenting on Mr. Chinn’s attempt to get Officer W to use language suggested by Mr. Fehler, Mr. Dunscombe agreed that it would have been appropriate for the OM to discuss with, rather than direct, a CO whether the words they used were the accurate words they intended to use to accurately describe the situation, for instance the word “grab”, which would imply a use of force versus “take hold”, which might or might not indicate force, depending on the circumstances.

93The transcript of Mr. Fehler’s interview with the investigators supports the idea that he did recommend such an approach, which was aimed at quality control of format and grammar in reports. Further, there is no evidence that Mr. Bazger was ever directed not to assist officers in the way he assisted Mr. Conry. To that extent, I find that the allegation that this practice was among the failures in Mr. Bazger’s managerial duties has not been proven. Similarly, although the fact that Mr. Bazger typed Mr. Conry’s addendum on October 16 is admitted, I have concluded that it did not amount to insubordination as Mr. Dunscombe believed, given my view of the evidence about Mr. Dunscombe’s instructions to Mr. Bazger, dealt with above.

94The employer was concerned that Messrs. Conry and Bazger were colluding on a manner of reporting which protected one or both of them from being held properly accountable for their respective roles in the incident. Although this is an understandable concern, the evidence that it was the language used in Mr. Conry’s first report, prepared in Mr. Bazger’s presence, that indicated to the RMT that force had been used in the separation of the inmates tends to counter the idea that they were colluding to prevent any force being reported.

95Further, collusion in an effective way would have needed to include limiting the reporting of all of the other potential witnesses. There is no evidence before me of such efforts. Mr. Conry’s testimony that he spoke with no one about striking either of the two inmates on October 5, or before October 15, was not contradicted by anyone but Officer W. He specifically denies the conversation she alleges took place on October 5, in which she said she asked him why they were not all just telling the truth. Although employer counsel urged a finding that Officer W was more credible than Mr. Conry, I am not persuaded that there is sufficient basis for me to find that as a general matter, as discussed above. Mr. Conry said the next time he spoke to anyone about the events of October 5 was on October 15 when he heard that officer W had submitted an addendum which indicated he had struck the inmates. He in turn filed another occurrence report the following day. Mr. Bazger was his manager that day, and he informed him he would be submitting an addendum. As Mr. Conry was quite upset at the time, he said he dictated the report to Mr. Bazger, who typed it for him. Mr. Bazger testified that his intent was never to collude, that he was only helping Mr. Conry because he was in such an upset state. He said that if he had known how it looked to others, he would not even have been on the same floor with Mr. Conry, and it would never happen again if he were reinstated.

96It is also of note that the fact that both Mr. Bazger’s and Mr. Conry’s OR’s written on October 15 have the same obvious misspelling of the word “distraction” and common font, suggests that Mr. Bazger was not trying to hide what he was doing, which also tends to counter the allegation that he knew what he was doing was wrong. Nonetheless, the evidence about helping Mr. Conry suggests a blind spot in Mr. Bazger’s appreciation of his position in regards to the events of October 5. One would have hoped that the fact that he was physically present for part of the sequence in the sally port would have indicated to him that independent report writing was best accomplished with any necessary assistance to Mr. Conry being provided by someone else.

97As well, the practice of having others provide information such as the identity of inmates or other staff, as well as proof-reading colleagues’ reports, appeared to be common, and not to be frowned upon. Further, the evidence did not establish that the line between assistance of the encouraged kind, and conduct which is open to interpretation as collusion, had been made sufficiently clear to Messrs. Bazger and Conry.

h) Being Untruthful During the Investigation

98The third allegation in the discharge letter is a general one, being untruthful in the investigation. In context, it appears to refer to the complainant’s denial of certain of the allegations which were investigated that the employer has accepted as true, such as that he saw the blows to the second inmate and failed to report them and that he coerced Officer W and the officer assigned to the control module into not reporting the instances of use of force that they saw.

99Mr. Bazger denies this allegation, and I have dealt with the incidents investigated as part of the findings detailed above. There is no specific untruthfulness during the investigation which has been proven on a clear and cogent basis at the hearing before me. However, the complainant’s theme throughout his evidence, which was that he “did not see it” and did not cover it up amounts to an over focus on the central incident, which effectively down-played the effect of his other actions, which will be discussed more below.

100As to Mr. Bazger’s credibility, problems in Mr. Bazger’s evidence included a tendency to be excitable and combative during cross-examination, to simultaneously appear to take responsibility for his mistakes and explain how others were to blame, and to speculate about the role of others in the areas where it is not known exactly what happened. For example, employer counsel asked Mr. Bazger about the juxtaposition of the OR he says he wrote mid-afternoon on October 5, and the email he sent to the Deputy Superintendent saying there was no use of force. Although he had said on direct examination that it was a mistake for which he apologized, his answer in cross-examination seemed to be an attempt to minimize the importance of the email because it was not an official occurrence report, in light of the fact that he knew the incident would be upgraded to acknowledge the use of force.

101Nonetheless, I find Mr. Bazger’s narrative to be coherent, and ultimately credible, albeit not to his credit. To summarize, he clearly saw Mr. Conry push the first inmate against the glass, and was aware that something happened in the sally port with the second inmate, but did not consider it clear enough to report as a fact. From the conversations in the control module afterwards about the manner of separating the inmates, which he had not personally viewed, he concluded that use of force had been involved and argued for a use of force package to be initiated. When Mr. Chinn did not agree, he sent an untruthful email to the deputy superintendent, and did not clearly flag all the use of force he had become aware of, in a discreditable attempt to avoid further conflict with Mr. Chinn. He reported the pushing of the inmate against the glass, but took no action when it appeared that the RMT was not asking for further information from Mr. Conry about that, when Mr. Fehler was asking for further reports about the separation of the inmates. I find it likely that Mr. Bazger’s failure to “raise the alarm” early on also involved an attempt to minimize attention on the incident, since he had attended unprepared, and was aware that his friend Mr. Conry had used force, albeit force which he did not consider to be excessive. This had an element of the irrational in it, since he clearly knew by October 10 that the RMT was treating the matter as a use of force, by which time the chances that the video would not be viewed, or the other uses of force go unnoticed, had all but evaporated. Nonetheless, the coherence of the narrative is that Mr. Bazger knew that force had been used, but was content to let it go underreported because he thought it would come out in the end, did not think it was excessive, and presumably, that he could explain it in that light if necessary.

102When he became aware of Officer W’s report of the assault on the second inmate, and his alleged attempt to stop it, he did “raise the alarm” in a manner which removes any doubt about whether he was still trying to limit attention to the incident. He asked security directly to view the video, and raised the matter with two deputy superintendents, albeit for reasons which included his belief that Officer W was lying. As well, as I have not been convinced on the evidence that Mr. Bazger switched his occurrence report, I find his behaviour on October 15 consistent with the idea that he had not actually seen Mr. Conry’s excessive blows to the second inmate, but rather thought there had been defensible force used on both inmates both in separating them, and in the sallyport.

ii. Was discharge with no compensation an excessive penalty?

103In determining whether the penalty of discharge should be mitigated, I adopt the approach to the issue of just cause articulated by the Supreme Court of Canada in McKinley v. BC Tel, [2001] 2 SCR 161, 2001 SCC 38, which requires a contextual analytical framework that examines each case on its own particular facts and surrounding circumstances and considers the nature and seriousness of the conduct for which the person has been discharged, in order to assess whether it is reconcilable with sustaining the employment relationship. If it is, then dismissal may be found to be a disproportionate response. If not, then there is just cause for dismissal. Where there is just cause, the law does not require the employer to provide compensation for losses or pay in lieu of notice. Nonetheless, dismissal without cause, but with notice, remains an option for this employer for managerial employees, as noted in Dyson, cited below. The analysis of the Court in McKinley, centered on the proportionality of the sanction to the conduct, implies a consideration of the viability of alternative disciplinary measures to dismissal.

104As noted above, it is conceded that there is just cause for discipline. The remaining question is whether the mitigating factors are enough to warrant a finding that termination without compensation was an excessive response. Mitigating factors referred to in the Board’s jurisprudence such as Hardy v. Ontario (Ministry of Health), 1997 CanLII 10280 (ON PSGB) (Leighton) and Keating v. Ontario (Community Safety and Correctional Services), 2009 CanLII 15648 (ON PSGB) (O’Neil), include the seriousness of the offence which precipitated the discharge, whether it was premeditated, repetitive, or not, the employee’s record, in the sense of whether he has been a capable employee and enjoyed a relatively free disciplinary history, and whether the employer attempted earlier and more moderate forms of corrective discipline. Generally, the review of mitigating factors is aimed at assessing the prospect of rehabilitation with progressive discipline and the risk of reoccurrence if the employee is reinstated. The factors of insight and remorse are relevant as an employee who understands and acknowledges what went wrong is much less likely to repeat the problematic behaviour.

105As to how serious the conduct for which Mr. Bazger was fired is, he is not, of course, accused of using force on an inmate himself, but of failing to manage a use of force, and participating in a cover-up of its use. That he managed the situation flowing from the Code Blue very badly is clearly established on the evidence. From the moment he left his office without the proper equipment to his unfortunate handling of his confrontation with Officer W on October 15, Mr. Bazger demonstrated a long list of behaviours which demonstrated ineffective management of the situation.

106The most serious accusation is that Mr. Bazger participated in the corrosive Code of Silence rather than helping to thwart its operation. In maintaining throughout the hearing that he did not participate in a cover-up, Mr. Bazger seemed to be focused on whether he saw the blows that Mr. Conry has now admitted. Mr. Bazger has acknowledged that it was a mistake to send an e-mail to the deputy superintendent saying that there was no use of force, when he had observed the use of force on the way into the sally port, and been informed by the responding officers that there had been a use of force in the separation of the inmates, not putting use of force in the subject line of his OR and not insisting on an LIR, and apologized for these mistakes. Nonetheless, these and other actions, including not directing reports from all the necessary staff, and not making sure the force that he was aware of was clearly mentioned in the LIR and other documents he worked on between October 10 and October 15, did effectively cover up what happened, in the sense of preventing the use of force from being clearly seen as soon as possible.

107Mr. Bazger’s explanation for not insisting that the matter be reported as a use of force from the outset is that he did not want to have further conflict with his colleague Mr. Chinn. Even if this is the only reason, and not also partly a desire to help his friend Mr. Conry keep his job, or save himself from accountability for his failings on that day, the effect on the Ministry's ability to deal with use of force in the context of a powerful Code of Silence is the same. It greatly impairs it, falling on the side of perpetuating the Code of Silence, whatever his intentions may have been, when his job was to take charge and make sure the use of force was made visible. Further, his failure to direct a report be written by all the officers on the scene gave an excuse to officers who were reluctant to step forward and do their reporting duty in the first instance.

108In some of his statements at the hearing, Mr. Bazger stated that he could not have been trying to cover-up, because he gave control of the gathering of the occurrence reports from the staff to Mr. Chinn, and he had no influence on what the inmates might have reported. As discussed above, there is no evidence that Mr. Bazger attempted to exert wide-ranging control over what was reported. Further, his arguing for a use of force package, and passing on Mr. Conry’s initial report which included the details of separation of the inmates, which he was aware would likely be identified as use of force by the RMT, are elements which also counter the idea that Mr. Bazger was actively attempting to prevent the incident being reported. Nonetheless, he remained silent when he was aware that the matter had been underreported, relying on the RMT to catch it, rather than taking responsibility for what he knew was the proper manner of reporting from the outset. There were several ways that Mr. Bazger could have seen to it that the matter was reported more clearly, and I accept employer counsel’s characterization of his behaviour in this respect as a series of decisions, rather than inadvertence.

109Mr. Bazger’s conduct after reading Officer W’s October 15 occurrence report was unbecoming of a manager, and displayed a lack of insight as to his position in the particular circumstances. That he involved a witness and a union representative in the final meeting is a mitigating factor, but he should have removed himself from dealing directly with the situation, once he realized that he was involved in the new allegations she had made. This is particularly true, given his evidence that he panicked at reading Officer W’s final report, an indication that any desirable managerial objectivity was not available to him at the time. Although he did alert a deputy superintendent before he met with Officer W for the second time on October 15, it would have been far better for him to have written a report than to personally involve himself, once he knew of Officer W’s allegations of his involvement.

110The case for mitigating the penalty argued on behalf of the complainant is partially based on an argument that there has been an inequality of discipline in that there were many staff members who did not live up to the standards expected of them, all of whom are back at work, including Mr. Conry who engaged in seriously excessive use of force. Inequality of discipline is more difficult to evaluate for managers, because there are fewer peers, and there are higher expectations of them, and the case law on the subject is almost exclusively in respect of bargaining unit employees. Mr. Chinn was the other manager involved, and despite the fact that the employer essentially accepted his explanation of his conduct, he lost his acting managerial status at least for a time. Even though there was a significant amount of evidence about Mr. Chinn’s role in the matter, the evidence does not put me in a position to make findings about the extent of any misconduct compared to that of Mr. Bazger. Nor would it be appropriate to do so in the circumstances of this case, where Mr. Chinn did not testify and there was no notice to him of any issue about his conduct at this hearing. In any event, Mr. Chinn was not present for the central incident, which puts him in a different situation altogether compared to Mr. Bazger.

111The concept of inequality of discipline can also be seen as a general concept of fairness, according to which similar cases receive similar consequences, in line with the idea of proportionality endorsed by the Supreme Court of Canada in McKinley, which dealt with a non-bargaining unit employee, and as part of the entire context. Comparators can also be found in similar decided cases.

112The most closely comparable case in the Board’s jurisprudence is the decision in Dyson v. Ontario (Ministry of Community Safety and Correctional Services), P-2012-3436; 2014 CanLII 8245 (ON PSGB) (Carter). As set out in that decision, the complainant had not only twice failed to report use of force by his subordinates properly, but had also engaged in excessive, reckless use of force himself, kicking and injuring an inmate, who was acting in an irritating manner, but posed no real threat. One of the incidents was somewhat similar to the facts of this case in that it involved a failure to notice a distractionary blow to an inmate while supervising a search by a correctional officer, and then failing to report it as an excessive use of force even after viewing the video of it. In assessing whether dismissal was the appropriate response, the Board gave weight to factors such as the complainant’s twelve years of service and his otherwise exemplary work performance as well as its serious financial and psychic impact on the complainant and his family. The Board found that the lapses of judgment went to the heart of the complainant’s responsibility as an Operational Manager to ensure the safe care, custody, and control of the inmates and were sufficient to justify a conclusion that the complainant had irreparably damaged the trust and confidence that the employer must have in its managers, making it doubtful that any type of employment relationship with the employer could be successfully restored. Nonetheless, the Board found that dismissal without any compensation was not the appropriate managerial response in the circumstances of that case. Instead, the Board found that the appropriate remedy was compensation in lieu of reinstatement, particularly in light of the statutory prohibition against reinstatement of a person who has engaged in excessive use of force to a position where inmates would be supervised.

113Although the failure to focus on the inmate during an incident where use of force occurred is similar, Mr. Dyson’s other behaviour is considerably more serious than Mr. Bazger’s behaviour, in that there were two failures in reporting, one after seeing a video which was later admitted to demonstrate excessive use of force, and actively engaging in a totally unwarranted use of force as well.

114It is also argued on behalf of the complainant that the employer has not proven most of the allegations set out in the discharge letter. In this regard, I have found that what was proven is a less serious version of what was alleged in a number of instances. Among these are the allegations in respect of participating in the production of Mr. Conry’s occurrence report of October 15. Although one would have wished more insight on Mr. Bazger’s part as to how his helping Mr. Conry in the circumstances would appear, his evidence about how it came to be was credible, and corroborated by both Mr. Conry’s evidence about his difficulty producing the necessary report in the state he was in, as well as more generally by the transcript of Mr. Fehler’s comments about his approach to quality control. Although it is very clear that it would have been much preferable that someone not involved in the incident at all give assistance, except for information such as the inmate’s name and number, as noted above, the evidence does not persuade me that this was clear to Mr. Bazger at the time.

115The evidence also established that Mr. Bazger’s initial approach to dealing with the problems presented by Officer W’s addendum was something proposed by Mr. Chinn on the suggestion of Mr. Fehler, albeit with no knowledge of the excessive use of force Officer W was soon to disclose, or of Mr. Bazger’s proximity to it. This does not excuse Mr. Bazger’s lack of objectivity and calm decorum in his behaviour, especially at the second meeting with Officer W, but it does explain his initial involvement in a less blameworthy light.

116Further, it appeared that Mr. Bazger’s view that it would normally be Mr. Chinn’s responsibility to do the paperwork was shared by several other witnesses. There was uncontradicted evidence that there had been a meeting where the question of divided responsibility for paperwork for incidents occurred because one manager was relieving another, and it had been determined that normally the unit manager would be responsible. It appeared from Mr. Dunscombe’s evidence that his view that it was clear that it was entirely Mr. Bazger’s responsibility to do the paperwork was one of the factors which lead to his decision to recommend discharge. The idea that there had been a prior different arrangement in the institution does not excuse Mr. Bazger’s failure to ensure that all the force he was aware of was clearly and promptly reported, but it does give more credibility to Mr. Bazger’s account than the employer gave him credit for.

117One of the factors that appears to have had a large influence on Mr. Bazger’s handling of the situation was his conviction that Mr. Conry would not use excessive force. He cites this in reference to both his initial reaction to what happened with the second inmate in the sally port, and his reaction to Officer W’s allegations in her October 15 report. Although this is capable of supporting a finding that he was simply favouring his friend, it is of note that the idea that excessive use of force was totally out of character for Mr. Conry was shared by many, including Mr. Dunscombe, as reflected in his testimony at the hearing of Mr. Conry’s grievance, which was accepted in the decision of the Grievance Settlement Board reinstating him.

118The parties are sharply divided on whether the trust necessary to the employment relationship has effectively been destroyed by Mr. Bazger’s behaviour, or whether it could be repaired. Employer counsel argued that nothing could be more prejudicial to the employer’s business than looking the other way while excessive force was used, allowing the Code of Silence to be perpetuated, and that the evidence did not provide reason to find that the employer could have confidence in Mr. Bazger to fulfill his obligations as a manager. As to whether Mr. Bazger has learned his lesson, employer counsel highlights Mr. Bazger’s many accusations about others’ wrongdoing, and continued inability to take full responsibility for his own misconduct. Although taking responsibility for one’s actions does not mean a complainant must be perfect in this respect, or cannot have his own views about the role of others in a complex situation, it is true that Mr. Bazger’s references in his evidence to how Mr. Chinn could have prevented the situation detracted significantly from Mr. Bazger’s statements of accepting responsibility for his own conduct.

119Mr. Bazger’s counsel, by contrast, highlights the background of Mr. Bazger’s 16 years of service, which included several commendations, including one a year before the incident while an acting OM, and the fact that there was no discipline on his record. He argues that Mr. Bazger has learned a huge lesson, has apologized for his mistakes and has shown in the past he is capable of improvement at work. He emphasizes that the investigator did not conclude that Mr. Bazger saw Mr. Conry strike the inmate and covered it up. Counsel urges a finding that the evidence is much more consistent with Mr. Bazger’s testimony that he did not see the excessive force, and that at its highest he is guilty of a misguided effort to avoid conflict with Mr. Chinn in not insisting on an LIR at the outset, and sending the email to the deputy superintendent saying there had been no use of force. In the circumstances, counsel for the complainant submits that discharge with no compensation is a grossly disproportionate consequence.

120Complainant’s counsel emphasizes Mr. Bazger’s sincere expression of his pride in and dedication to his work at the Ministry. Mr. Bazger immigrated to Canada in 1996 from Afghanistan as a trained mechanical engineer. He started working as a CO in 1998, thinking at first that it would be temporary, while he pursued Canadian engineering credentials. He found the work in the correctional context of longer term interest, and decided to stay with the Ministry, putting considerable energy into improving his work skills and English. He was promoted to a permanent OM position in December, 2012, after having acted successfully in that capacity. There is no evidence that Mr. Bazger had been criticized or counselled by his superiors for any deficiencies in his performance as an Operational Manager prior to the incident of October 5, so there is no evidence before me that Mr. Bazger has not responded to corrective action in the past, or that the behaviour discussed above was repetitive.

121Mr. Bazger had not been successful in finding employment near the level of his job with the Ministry, and testified that things had been very difficult for him and his family since his discharge.

122Mr. Bazger exhibited a strong personality, influenced by a lot of pride in his past accomplishments. Despite the legitimacy of much of that pride, it also provided a considerable blind spot about how his actions would appear to others in the larger scheme of things. He acknowledged this indirectly when he said at one point that he had pursued his goals in the wrong way. He expressed his deep sorrow for the things he should not have done, vowing they would never happen again. He had been in a permanent managerial position for less than a year at the time of the incident, and gave evidence about being taunted by bargaining unit staff for having sought a managerial position and having disciplined a CO while in an acting capacity. The evidence gave reason to believe that he was still very sensitive to how he was seen by members of the bargaining unit as well as his colleagues in the OM ranks.

123The misconduct found to be proven above represents a serious failure in Mr. Bazger’s duty as a manager, in that all force is to be clearly reported so it can be investigated, the initial responsibility for which rests on the incident manager. The ministry has a completely legitimate interest in knowing about all of it, despite the fact that opinions may differ about both what constitutes a use of force, and what is excessive.

124Mr. Bazger displayed a lack of appreciation for how underreporting feeds the Code of Silence, and that concessions to peer pressure, particularly in respect of the reporting of use of force, have no place in effective management of a correctional institution. Nonetheless, it is not misconduct as serious as what was contemplated at the time of his discharge, or as serious as that in which Mr. Dyson engaged, a case where the consideration of the otherwise creditable service was found to warrant a mitigation of penalty. Nor is it similar to the years of performance problems in the Board’s decision, Ann Gronski v. Ontario (Ministry of Community Safety and Correctional Services), PSGB#P-2012-4661, P-2013-2207, 2015 CanLII 67988 (ON PSGB) (O’Neil) where the discharge was upheld.

125Mr. Bazger has 16 years of credit worthy service, less than one of which were as a permanent OM. Similar to the situation dealt with in the Dyson decision, the evidence is not convincing that adequate consideration was given to the complainant’s otherwise good service. As well, in this case, I am persuaded that there is significant potential for improvement and correction of the deficiencies in Mr. Bazger’s performance with re-direction. The evidence suggests that Mr. Bazger had not fully settled into his role as a manager, and the fact that he was relatively new to the permanent position is a factor which favours the viability of progressive discipline.

126Although there were indications of what Mr. Bazger referred to as not “seeing eye-to-eye” with some of his co-workers and managers, there were also clearly managers who appreciated Mr. Bazger’s work skills and promoted him. In any event, as Arbitrator MacDowell discussed in Re Tenant Hotline and Peters and Gittens [1983] 10 L.A.C. (3d) 1340, the opinion of individuals who may not welcome a reinstatement is not a proper basis on which to deny the possibility of a return to work that is otherwise warranted. This is particularly true when there is no evidence that any of the past difficult interactions, referred to briefly in the evidence, had resulted in any counselling or correction of Mr. Bazger’s part in them.

127Employer counsel submitted that the integrity of managers had to be above reproach, especially as they may be assigned as the most senior person in the institution at night, and that Mr. Bazger had demonstrated that he did not meet this standard. Although Mr. Bazger’s conduct clearly put his integrity into question, most clearly with the e-mail saying there was no use of force, the evidence is not persuasive that his behaviour represented a larger or fundamental problem of dishonesty or lack of integrity. His conduct very reasonably left the employer with legitimate concerns about his judgment and character in the managerial role, but I have not been persuaded that the employment relationship is beyond repair. In these circumstances, I find that discharge with no compensation represents a disproportionate penalty in all the circumstances.

iii. What Remedy?

128The range of remedies discussed at the hearing, in the event that discharge without compensation was considered disproportionate were: compensation in lieu of reinstatement, reinstatement to an Operational Manager position with or without compensation, assignment to some alternate position and demotion. The employer argues strongly against reinstatement in any form, while complainant’s counsel argues that reinstatement should follow, being the normal remedy when discharge is found to be an excessive penalty.

129As the Board noted in Dyson, cited above, the case law to the effect that compensation in lieu of reinstatement should only be used in the most exceptional circumstances arises from a collective bargaining context with generally no option for dismissal without cause. By contrast, the statutory regime administered by this Board contemplates the option of dismissal without cause where an employee’s only remedial recourse would be damages for lack of reasonable notice. In the Dyson decision, there was also a statutory barrier to reinstatement to his previous job, because the complainant had engaged in excessive use of force, which is not the present case. Thus, reinstatement remains an available remedial option here.

130The conduct described above gave reason to question Mr. Bazger’s judgment as a manager under pressure, which raises the issue of whether demotion would be the appropriate penalty. In argument, the employer resisted the idea that Mr. Bazger might be reinstated to the bargaining unit, citing jurisdictional concerns about setting off a chain of bumping under the collective agreement. It is not necessary to answer the jurisdictional question here, as the prospect of demotion raises many variables which make it too uncertain to pursue in this case. Instead, having been persuaded that the employment relationship could be repaired, and no alternate positions having been identified, I find the appropriate outcome in all the circumstances is that the complainant be reinstated to employment as an Operational Manager. I do not find any basis to award compensation, given the importance of underlining the seriousness of not fully and promptly reporting or investigating all use of force of which a manager is aware.

131In reinstating Mr. Bazger, my belief is that the experience of his prolonged period of under-employment since his discharge, and the protracted opportunity to reflect on what went wrong during and following the incident of October 5, will provide a foundation for a renewed appreciation of his responsibilities and the meaning of the trust placed in him as a Ministry employee for the care and custody of inmates.

132As employer counsel submitted, managers in correctional institutions have a high obligation for care, custody and control of inmates who have lost much of their autonomy, such that if there is any indication that an inmate is not being properly cared for or abused, it is their obligation to report it, and see to it that it is investigated. If it turns out to have been nothing in the end, that is much preferable than to have remained silent, in that this part of the managers’ job is essential in the Ministry’s ongoing efforts to stop staff from sweeping use of force and other misconduct under the rug by engaging in the Code of Silence.

133Before leaving this matter, I find it appropriate to express the hope that the facts of this case have already triggered, or will lead to, a review of practices in regards to document handling. This case raised questions as to the sufficiency of measures to ensure traceability of important reports and documents concerning when and to whom they are submitted, and who is to sign for receipt of a manager’s report. Similarly, it appeared there was room for more clarity about report writing, in respect of what assistance in writing reports is permissible and from whom, for purposes such as quality control and identification of unknown persons.

134In summary, for the reasons set out above, the grievance is allowed in part. The employer is to reinstate Mr. Bazger to employment as an Operational Manager within thirty days of this award, or in such other period as the parties may agree. The period between his discharge and reinstatement is to be considered an unpaid suspension. The Toronto West Detention Centre where he was working has been decommissioned, so some other assignment will be necessary. The employer may arrange for any necessary training, reorientation or updating. I will remain seized to deal with any issues concerning implementation of the above decision which the parties are unable to resolve themselves.

135I am grateful to counsel for their conscientious and professional assistance to the Board throughout the hearing of this difficult case.

Dated at Toronto, Ontario this 8th day of March 2017.

APPENDIX

Case law

Cited by counsel for the employer

1. Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) Grievances of Beltrano et al., GSB #2003-3597 et al. (ON PSGB), August 11, 2008 (Petryshen)

2. Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) Grievances of Gillis et al., GSB #2003-1520 et al., 2008 CanLII 26249 (ON PSGB) (Abramsky)

3. Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) Grievances of Marshall et al., GSB #2012-1308 et al., 2013 CanLII 72584(ON PSGB) (Abramsky)

4. Ann Gronski v. Ontario (Ministry of Community Safety and Correctional Services), PSGB#P-2012-4661, P-2013-2207, 2015 CanLII 67988 (ON PSGB) (O’Neil)

5. UNIFOR Local 481 v. Saskatchewan Government and General Employees Union, Preliminary Award on Admissibility Personal Emails on Employer’s Email System, 2015 CanLII 28482 (SK LA) (Ponak)

6. Association of Management, Administrative and Professional Crown Employees of Ontario v. Ontario (Ministry of Government and Consumer Services) Grievances of Bhattacharya, GSB #2014-1191 (ON GSB), 2016 CanLII 17002 (Anderson)

7. Gregory Dyson v. Ontario (Ministry of Community Safety and Correctional Services), P-2012-3436; 2014 CanLII 8245 (ON PSGB) (Carter)

Cited by counsel for the complainant

8. Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) Grievances of Conry., GSB #2014-2618, 2016 CanLII 59598 (ON GSB) (Williamson)

9. Professional Engineers, Government of Ontario v. (Ministry of Environment),Grievances of Shannon, GSB #2002-2915, 2005 CanLII 55174 (ON GSB) (Herlich)

10. United Food and Commercial Workers Union, Local 832 v. Maple Leaf Fresh Foods; Grievances of Centeno, (2010) 194 L.A.C.(4th) 248 (Simpson)

11. Canadian Union of Public Employees, Local 835 v. Meadows (Tidal View Manor); Grievances of Saulnier, (2012) 226 L.A.C.(4th) 169 (Kydd)

12. Labourers’ International Union of North America, Local 625 v. Prestressed Systems Inc. (Tidal View Manor); Grievances of Roberts, (2005) 2005 CanLII 94167 (ON LA), 137 L.A.C.(4th) 193 (Lynk)

13. United Steelworkers of America v. Aerocide Dispensers Ltd.; Grievances of Walker, (1965) 1965 CanLII 980 (ON LA), 15 L.A.C. 416 (Laskin)

14. Canadian Union of Public Employees, Local 82 v. The Corporation of the City of Windsor; Grievances of Denapoli, (2014) 246 L.A.C.(4th) 32 (Dissanayake)

15. Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) Grievances of Sammy et al., GSB #0224/01, October 9, 2001 (Harris)

16. Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) Grievances of Seguin, GSB #2004-0009, 2005 CanLII 55218 (ON GSB) (Brown)

17. Reference Re Public Service Employee Relations Act (Alta), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313

18. Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) Union Grievance, GSB #2003-3766, 2007 CanLII 59339 (ON GSB) (Briggs)