PSGB# P-2017-0258

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Potter

Complainant

• and -

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

Employer

BEFORE

Andrew Tremayne

Vice-Chair

FOR THE COMPLAINANT

Wassim Garzouzi / Jessica Greenwood Raven, Cameron, Ballantyne & Yazbeck LLP Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

July 18 and 19, 2018

DECISION

1This decision deals with the complaint of Jeff Potter, who is contesting the termination of his employment as an Operational Manager with the Quinte Detention Centre (hereinafter referred to as the “Centre”). His employment was terminated on March 9, 2017 after an investigation into an incident that occurred at the Centre on December 24, 2015. Most of the facts are not in dispute and will be summarized briefly below.

2Counsel for Mr. Potter concedes that the employer had cause for discipline. He asks that the termination be rescinded on the basis that his misconduct did not warrant dismissal and that there are enough mitigating factors to justify reinstatement. The employer maintains that termination for cause was appropriate in light of all of the relevant circumstances.

Background and Context

3Mr. Potter started at the Centre as a Correctional Officer on September 15, 2006 and he has been an Operational Manager there since February 24, 2014. He has no prior discipline on file.

4On December 24, 2015 at approximately 11:00 am, there was an inmate-on-inmate assault in the Segregation unit at the Centre in which force was used to subdue one of the inmates. The incident was recorded on the Centre’s surveillance camera system. Video footage of the relevant scenes was viewed at the hearing and will be described briefly below. The Superintendent of the Centre, Larry Shorts, requested an investigation of the incident on January 22, 2016. Mr. Potter was suspended with pay on January 25, 2016 and the investigation started the next day. To be clear, Mr. Potter continued to perform his regular duties and responsibilities for approximately one month after the incident, although the parties disagreed about the relevance of this.

5Mr. Potter was interviewed by an Inspector with Correctional Services Oversight and Investigations (CSOI) on August 17, 2016. There were two findings made against Mr. Potter resulting in four allegations, and he responded to the allegations in a meeting that took place on January 24 or 25, 2017 (although both dates are mentioned in the documents, the precise date is not material). In letter dated March 9, 2017, Mr. Potter’s employment was terminated effective immediately.

6The letter lists the reasons for termination as follows:

a. you failed to provide appropriate care for an inmate when you failed to intervene in an altercation in Close Confinement Cell #7;

b. you failed to manage an incident by neglecting to ensure that staff opened the cell door to intervene in an assault upon an inmate that occurred in Close Confinement Cell #7;

c. you failed to complete a compatibility assessment prior to placing an inmate in a cell (Close Confinement Cell #7) with another inmate;

d. you failed to properly address an inmate’s right to ask for and to receive Segregation.

7The letter states that all four of the allegations are substantiated and that each of the first two allegations, on their own, warrant termination. Mr. Shorts, the author of the letter, also expresses concern about Mr. Potter’s overall response to the incident, stating that he displayed a substantial lack of sound judgement, decision making, and indifference to Ministry policy. The letter also notes that Mr. Potter’s reports about the incident lacked considerable pertinent, important information; it further asserts that he was not forthcoming about the incident and that he did not take full accountability for his role in it. Finally, the letter states that as a Manager, Mr. Potter has a responsibility to model appropriate behaviour and to set an example and take prompt and effective steps to address incidents of unprofessional conduct, all of which he failed to do.

8Counsel for Mr. Potter concedes that the employer had cause for discipline for his role in the December 24, 2015 incident. The issues to be determined are:

e. what was the extent of Mr. Potter’s misconduct?

f. was discharge the appropriate response, and what if any mitigating factors are relevant?

g. if discharge was an excessive response, what discipline is appropriate?

9As stated above, the material facts are not in dispute, and a brief summary of the December 24, 2015 incident will provide sufficient context for the parties’ submissions. This description of events is based on the video footage of the incident, supplemented with evidence from Mr. Shorts and Mr. Potter, both of whom gave evidence at the hearing.

December 24, 2015 Incident

10On December 24, 2015, which was a Thursday, Mr. Potter, whose shift had started at 10:00 am, was making arrangements for the regular influx of inmates who arrive at the Centre to serve weekend sentences. Among other things, this usually involves moving inmates between cells to make room for these intermittent inmates. For various reasons, Mr. Potter was planning to move inmates B and C and house them together in Protective Custody (PC) but had not yet done so. He had already spoken to inmate B who had agreed to this move. This is referred to as a compatibility assessment, and there are two parts to it: interviewing the inmate and completing a form. While Mr. Potter continued to make arrangements for the intermittent inmates, CO Pratt told him that there was an issue with inmate K, who was in a cell with inmates B and C.

Video Footage

11CO Pratt removed inmate B from the cell and asked Mr. Potter if he could put him in inmate M’s cell temporarily and Mr. Potter agreed. CO Flint and CO Pratt placed inmate B in a cell with inmate M. As soon as CO Pratt closed and locked the cell door, loud noises and yelling were heard from the cell, because inmates B and M had started fighting. CO Pratt told CO Flint to activate the emergency alarm, which he did.

12Mr. Potter was not in the immediate area, but he heard the commotion and arrived at the cell right away, about 10 seconds after the door to the cell was locked. As he was walking towards the cell, he asked what was going on. CO Pratt told him that inmate M was beating inmate B. Mr. Potter told CO Pratt to open the door and get inmate B out. CO Pratt did not respond.

13A third CO arrived and Mr. Potter looked in the cell, although he says that he could not see the inmates, either because they were against the window or were on the cell floor. Two more COs arrived. The COs were crowded around the cell door and Mr. Potter was behind them. He had his pepper spray in his left hand and a clipboard in his right hand. A few seconds later, CO Flint opened the cell door and inmate B tumbled out onto the hallway floor. Inmate M remained in the cell and the door was locked.

14To summarize events to this point, the door to the cell with inmates B and M inside is locked at 11:06:11. Mr. Potter arrives at 11:06:21 (10 seconds later) and the door is not opened until 11:06:46 (25 seconds later). A total of 35 seconds elapses from the time the door is locked until it is unlocked and inmate B tumbles out of the cell.

15Mr. Potter and four of the COs remained in the area while the other COs returned to their regular duties. Mr. Potter went to the cell window, spoke to inmate M, and discovered that inmate M had mistaken inmate B for another inmate. Mr. Potter turned and delivered a “mule kick” to the cell door.

16Medical staff arrived and assessed inmate B, who remained on the hallway floor. Mr. Potter told inmate B to get up and that he would be moved to another cell. Mr. Potter left the scene briefly and one of the COs kicked inmate B’s leg. Mr. Potter returned and stood off to the side as the COs attempted to get inmate B to stand, and there was a struggle. One of the COs kneed inmate B in the head or chest, and another CO punched him in the side. Eventually inmate B was secured in restraints and moved to another cell.

Evidence of Mr. Shorts

17Mr. Shorts, the Superintendent of the Centre, testified on behalf of the employer. He says that as the Operational Manager, Mr. Potter was responsible for ensuring that the compatibility assessments were completed on inmate B and inmate M before they were placed together in a cell, and he did not do this. Once the incident started, Mr. Potter had overall responsibility to take action to manage the scene and to minimize the risk of injury and ensure that the incident was contained. He failed to do this. Finally, Mr. Potter did not report fully on the COs’ use of force during the incident, although he had a duty to do so.

18With respect to the compatibility assessment, Mr. Shorts says that Mr. Potter failed to speak with both inmates before they were placed together in the cell. While he may have interviewed inmate B, he did not interview inmate M. After the incident, inmate B was placed in a cell with inmate C and another inmate, and Mr. Potter did not speak with inmate C before this happened. While the paperwork can be done later, at the very least, the interviews must be conducted before inmates are placed together.

19Mr. Shorts says that Mr. Potter failed to take action when inmate M was assaulting inmate B. He did not repeat the direction to CO Pratt to “open the door” in a clear and direct manner and he did not assert himself as a manager. He should have repeated the direction firmly and loudly, and as many times as was necessary to get the door opened. Mr. Potter also could have yelled at inmate M to stop, or banged on the cell door, or used his pepper spray though the hatch. He was responsible for the management of the scene, and he simply watched and waited but did not take any other steps to bring the situation under control.

20When the door was finally opened and inmate B tumbled out, Mr. Potter should have immediately taken steps to manage the scene and reduce the numbers of COs who were crowding the scene, which he did not. He should not have mule-kicked the cell door. This was not professional and it set a bad example for the COs who were there. It also antagonized inmate M, who was already agitated. Mr. Potter should not have left the scene, even briefly, although while he was there, he was standing where he had a good view of the scene, which was appropriate. When the COs kicked and punched inmate B, he was in a good position to observe what was happening, and he likely did, although he did not mention these or any other uses of force in his report.

21Mr. Potter`s report lacked many important details, says Mr. Shorts. It started when inmate B tumbled into the hallway, and did not mention the assault by inmate M on inmate B. The report does not mention that the COs used force and effectively assaulted inmate B, although Mr. Potter was in a position to see the CO knee inmate B in the head and the other CO punch him in the side. The injuries to inmate B, which were apparent from photographs taken soon after the incident, are not mentioned. The report is 9 lines long, which is clearly insufficient.

Evidence of Mr. Potter

22Mr. Potter says that at the time of the incident, the COs were working to rule because of a labour dispute between OPSEU and the employer. He was aware that the COs might try to slow things down, or question directions, or engage in otherwise unusual conduct. He was making arrangements for the weekend arrivals when he had to deal with the issue involving inmate K, who was in a cell with inmates B and C. He interviewed inmate B, who had been convicted of heinous and well publicized crimes, and convinced him to go into Protective Custody. CO Pratt, who was moving inmates between cells after the incident involving inmate K, asked if he could put inmate B with inmate M.

23Mr. Potter says that he agreed to this, but only on the basis that it would be temporary, and he relied on CO Pratt`s familiarity with inmate M when he agreed to the suggestion. He was planning to place inmate B with inmate C once he did a compatibility assessment on inmate C, says Mr. Potter. He did not complete a compatibility assessment before inmates B and M were placed together, and he will never do that again. He will also never rely on the judgement of a CO about the compatibility of inmates without or confirming that an assessment has been done or doing his own assessment, he says.

24Mr. Potter walked away from the hallway back to the interview room, but when he was only 12-15 feet along, he heard thumping and banging. He walked back towards the cell where COs Pratt and Flint were standing and asked what was going on. CO Pratt replied that inmate B was being beaten by inmate M. Mr. Potter said “open the door and get him out” to CO Pratt, who just stood there and watched the fight. At some point, after Mr. Potter started walking towards the cell and before he arrived there, CO Flint hit the alarm, summoning other staff to the area.

25Mr. Potter says that he has never before been in a situation when a CO did not act on his direction. He did not repeat the direction because he thought CO Pratt was waiting for more staff to arrive. Mr. Potter did not have a key to the cell and he did not want to take the key from CO Pratt, because that would have been assault. He says that he maybe should have repeated the direction to open the door, and that if he could do it again, he would repeat the direction until CO Pratt complied. The only other way he could have intervened in the assault by inmate M on inmate B would have been to take the keys from CO Pratt, and he did not want do that.

26Eventually other staff arrived, the door was opened, and inmate B tumbled out into the hallway. He told inmate B that he was going to be placed with someone safe that he had already been with. He gave directions to the COs who were there and then went to his office briefly to speak to the police and deal with the paperwork.

27After the incident, inmate B was placed with inmate C and another inmate, but Mr. Potter says that was not his decision. The paperwork for that transfer was not completed properly either, but he was not involved. In any event, he says that he would pay closer attention to the inmates when he does his compatibility assessments and make sure that the paperwork is completed before deciding where, and with whom, they should be placed.

28With respect to the accuracy and completeness of his report writing, which is also mentioned in his termination letter, Mr. Potter acknowledges that his paperwork needs improvement, but says that he was unaware that Mr. Shorts had a problem with this before this incident. He has never received any coaching or training on how to improve it.

The Allegation Meeting

29Mr. Potter was interviewed by an Inspector with Correctional Services Oversight and Investigations (CSOI) on August 17, 2016. There were two findings made against Mr. Potter resulting in four allegations, and he responded to the allegations in a meeting that took place on January 24 or 25, 2017. His responses to the questions about his conduct on the day of the incident in that meeting were very similar to his evidence at the hearing.

30In the allegation meeting, Mr. Potter said that he relied on the CO’s judgement about placing inmates B and M together temporarily. He acknowledged that he should not have done so, and said that he would never do so again. He accepted responsibility for not repeating himself and not ordering the COs to open the door.

31When he was challenged on the omissions and inaccuracies in his report, Mr. Potter said that it was a lack of judgement, acknowledged that he needed help with his report writing, but said that that did not excuse the lack of information in his report on the incident.

32He was also asked to comment on the allegation that he “mule-kicked” the cell door after the assault and while inmate M was still in the cell. He replied that he was “pissed off” when it became clear that inmate M did not even know who he had assaulted, and that he did not escalate, or intend to escalate, the situation. He acknowledged that his actions were childish.

The Parties’ Submissions

33The employer argues that the Operational Manager is the most senior person in the institution on evenings and weekends, and that he must have the trust and confidence of the Superintendent at all times. Mr. Potter was responsible for ensuring the care and custody of the inmates at the Centre and that the staff and inmates are protected at all times. Under Mr. Potter’s watch, an inmate was beaten by another inmate, assaulted by several COs, and then taken down with excessive force. His conduct during the December 24, 2015 incident shows that he lacks the judgement and suitability to do the job properly.

34All of this was avoidable, argues the employer. Compatibility assessments were not done properly and not completed. This was a fundamental oversight that set everything in motion. This is not grounds for the discharge on its own, but combined with the other allegations, it supports termination for cause.

35When CO Pratt did not respond to Mr. Potter’s direction to open the cell door, he should have repeated himself as many times as was necessary to get the door open. It was Mr. Potter’s job to get the door open, and if he had to give the direction more than once, he should have done so. Instead, the beating continued for another 25 seconds.

36When the cell door was finally opened, Mr. Potter escalated the situation by mule-kicking the cell door with inmate M still inside. He was in charge of the team and should have been acting like a leader, but instead he is setting a bad example, taking out his frustrations, kicking a cell door for no good reason, while 4 COs are still there, argues the employer. The situation was a crisis and things were tense, and it was Mr. Potter’s job to de-escalate, but he did the opposite. Finally, Mr. Potter’s report writing does not meet the standard expected for Operational Managers, the employer submits.

37The Board’s decisions show that a higher standard of performance and accountability is expected for Operational Managers, argues the employer. Managers are expected to display leadership and motivational qualities. They must meet these standards or exceed them: poor managers place the institution at risk. The same standards are not normally required in bargaining unit positions. CO Pratt may have failed in his responsibility to open the cell door, but as a manager, Mr. Potter was still expected to deal effectively with the situation, which he did not.

38In support of its submissions, the employer relies on the following decisions: McDade v. Ministry of Community Safety and Correctional Services, Grievance No.832/75. March 3, 1975. (Pringle); Morrison v. Ontario Human Rights Commission, P/0037/94, P/0037/95. December 8, 1998. (Lynk, Ellis, Munro); Gronski v. Ministry of Community Safety and Correctional Services, P-2012-4661, P-2013-2207. September 30, 2015. (O'Neil); and Dyson v. Ministry of Community Safety and Correctional Services, 2014 CanLII 8245. I note that only the last two are decisions of this Board.

39The complainant acknowledges that while Mr. Potter is a manager, the Board has consistently held that basic principles of progressive discipline still apply. Mr. Potter not only has an unblemished record from the time he was promoted to Operational Manager in 2014 to the date of the incident, he had 10 years of discipline-free service as a CO before that. Moreover, the employer allowed him to continue working as an Operational Manager at the Centre for 30 days after the incident before he was suspended with pay, and there were no problems with his performance during that time.

40On December 24, 2015, Mr. Potter arrived at the cell within 10 seconds after inmate M started beating inmate B. There is no dispute that he told CO Pratt to open the door right away. CO Pratt did not do so. This had never happened to Mr. Potter before. It was a tense time, the COs were working to rule, but Mr. Potter remained calm. He concedes that he should have repeated the direction.

41As to Mr. Potter’s failure to intervene in the assault being grounds for dismissal, he could not intervene until CO Pratt opened the door, and nobody has suggested that there was another way to access the cell other than repeating the direction to CO Pratt. If Mr. Potter had banged on the cell door to try to get inmate M to stop beating inmate B as was suggested by Mr. Shorts, this could have just as easily escalated the situation and been perceived as Mr. Potter failing to remain calm and in control of the situation, so he cannot be faulted for this.

42With respect to the allegations regarding the compatibility assessments, Mr. Potter was following the standard practice at the Centre, which was to talk to the inmates first and do the paperwork later. He relied on CO Pratt’s judgement about placing inmate B with inmate M, and it is appropriate for the Operational Manager to consult with the COs about these matters. After the incident, when inmate B and inmate C were placed with another inmate, there was no proper compatibility assessment for that, but Mr. Potter was not involved.

43Mr. Potter has taken responsibility for his actions. He did so at the allegations meeting and he did so at the hearing. The concerns with his paperwork, including his report writing, were not listed in the letter as grounds for termination. In any event, it is clear that if Mr. Shorts had concerns about this aspect of Mr. Potter’s work before the incident, there was no attempt to correct the situation, which likely could have been addressed with training and coaching.

44In support of its submissions, the complainant relied on the following decisions of this Board: Keating v. Ontario (Community Safety and Correctional Services), 2009 CanLII 15648; Bazger v Ontario (Community Safety and Correctional Services), 2017 CanLII 25423; and Dyson, upon which the employer also relied.

Issues to be Determined

What was the extent of Mr. Potter’s misconduct?

i) Failure to provide appropriate care for an inmate, failure to intervene in an altercation; failure to manage an incident, neglecting to ensure staff opened the cell door

45In my view, there are several reasons why it is appropriate to address the first two grounds for termination together. First, having viewed the video recording of the incident, it is difficult to separate the “failure to intervene” allegation from the “neglecting to ensure staff opened the door” allegation. They are, in effect, two sides of the same coin: it would not be possible to intervene without opening the door, and opening the door is the first stage in intervening. One cannot happen without the other. Second, the evidence of Mr. Shorts and Mr. Potter at the hearing also tended to treat the entire incident (at least until the cell door was finally opened) as a seamless whole. As a result, there is little to be gained by treating these two grounds separately.

46The material facts are not in dispute. As soon as Mr. Potter heard loud noises from the cell where inmates B and M had been placed, he directed CO Pratt to “open the door and get him out.” He arrived at the cell 10 seconds after the beating started. But Mr. Potter’s initial response was not the problem. When CO Pratt did not respond, Mr. Potter did nothing further. He did not take control of the situation and repeat or rephrase the direction, and he concedes that he ought to have done so. As a result, inmate B was beaten for another 25 seconds. Mr. Potter’s role in this was very serious, but he was not solely responsible for the situation.

ii) Failure to complete a compatibility assessment prior to placing an inmate in a cell / failure to properly address an inmate’s right to ask for and to receive Segregation

47It could be argued that if Mr. Potter had properly completed the first compatibility assessment, inmate B would never have been placed with inmate M, and the entire incident would never have occurred. He had only partially completed the compatibility assessment on inmate B, and he relied on CO Pratt’s judgement that he could be placed together with inmate M. Mr. Potter concedes these shortcomings, and says that he now knows better. His role in placing the inmates together was very serious, but again, he was not solely responsible for the situation.

48It is not clear that Mr. Potter was involved in the decision to place inmate B together with inmate C and another inmate after the incident. The employer did not pursue this concern when Mr. Shorts gave his evidence, except to say that a second compatibility assessment ought to have been done after the incident, because the circumstances had changed. Other than being the Operational Manager on duty at the time and not adequately describing this in his report on the incident, the evidence of Mr. Potter’s role in, and responsibility for, the three inmates being placed together is not clear. Neither was this allegation pressed when Mr. Potter was cross-examined. As a result, other than his overall responsibility for the proper completion of all compatibility assessments while he is on duty as the Operational Manager, he was not at fault.

Was discharge the appropriate response, and what if any mitigating factors are relevant?

49In order to assess whether the penalty of discharge should be mitigated, I must examine each case on its own particular facts and surrounding circumstances, and consider the nature and seriousness of the conduct for which the employee has been discharged to assess whether it can be reconciled with ongoing employment. This is the approach set out by the Supreme Court of Canada in McKinley v. B.C. Tel, 2001 SCC 38, [2001] 2 S.C.R. 161, 2001 S.C.C. 38.

50It is conceded that there is just cause for discipline. The question is therefore whether the mitigating factors are sufficient to find that termination of employment 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 Corrections Services), 2009 CanLII 15648 (ON PSGB) (O'Neil), include the seriousness of the offence which precipitated the discharge; whether it was premeditated; whether it was repetitive or part of a pattern; the employee's disciplinary record; and whether there have been attempts at progressive discipline. The mitigating factors are generally aimed at weighing the prospect of rehabilitation by means of progressive discipline against the risk of recurrence if the employee is reinstated. Insight and remorse are also relevant, because they tend to show that an employee understands and acknowledges what went wrong. Where that is the case, the problematic behaviour is much less likely to be repeated.

51The most serious allegation is that when he arrived at the cell where inmate M was beating inmate B, Mr. Potter did not take control of the situation. When CO Pratt did not respond to his direction, Mr. Potter did not repeat or rephrase the direction, and inmate B was beaten for another 25 seconds. He concedes that he ought to have responded more effectively when CO Pratt did not open the cell door immediately. Mr. Potter’s role in this was very serious, but he was not solely responsible for the situation.

52The Board has found that discharge was the appropriate response where a manager has engaged in the excessive or reckless use of force, and also when a manager has either undermined an investigation or participated in the corrosive Code of Silence and thus hindered an investigation. Neither of these allegations applies to Mr. Potter.

53It is also fair to say that even if Mr. Potter had asserted his managerial authority more vigorously, it might not have made any difference. The COs, who are represented by OPSEU, were working to rule because of a labour dispute with the employer, and the situation was tense. It is not clear that Mr. Potter could have done anything to cause CO Pratt to unlock the cell door with greater speed.

54With respect to the allegations regarding the compatibility assessments, Mr. Potter spoke to inmate B, but then relied on CO Pratt’s judgement about temporarily placing inmate B with inmate M. It was appropriate for Mr. Potter to consult with the CO who was in the unit and working with the inmates. The evidence also suggests that Mr. Potter was following the standard practice for compatibility assessments at the Centre, which was to speak to the inmates first and do the paperwork later. After the incident, when inmate B and inmate C were placed with another inmate, a proper compatibility assessment was not done, but there is no clear evidence that Mr. Potter was directly involved with that decision.

55While these concerns are serious, the employer does not assert that they are, by themselves, grounds for discharge. In the ordinary course, it would be appropriate to address the deficiencies in Mr. Potter’s paperwork and report writing through non-disciplinary measures such as staff training or coaching. However in this case, the deficiencies played a role in an incident where an inmate was badly beaten. Mr. Potter was the Operational Manager who was on duty at the time, and he bears significant responsibility. As a result, although this is not grounds for discharge, it is grounds for discipline.

56In terms of the mitigating factors, Mr. Potter’s conduct was not premeditated. It was not part of a pattern or a recurring series of incidents. His record is discipline-free. He has also shown insight and remorse, and in my view, it is significant that he did so at his allegation meeting and not just at the hearing. He says that he understands how his performance was deficient, and why, and he acknowledges his responsibility for the incident. For these reasons, and while I recognize that Mr. Potter’s conduct should attract significant discipline, I am persuaded that the employment relationship can be repaired.

57Having carefully considered the matter on its own particular facts and surrounding circumstances and considering Mr. Potter’s role in the overall incident, I find that the penalty of discharge is excessive.

What discipline is appropriate?

58The employer argues that the termination of employment should be upheld and the complaint dismissed, but that in the alternative, I should award compensation in lieu of reinstatement. The complainant submits that where discharge is found to be an excessive response, there is a presumption that the appropriate remedy is reinstatement, even if it is conceded that there are some grounds for discipline.

59Where the employer has been unable to establish just cause for dismissal, it is unlikely that it will be able to convince the Board that a fundamental breakdown in the employment relationship has occurred. The Board has departed from the presumptive remedy of reinstatement only when its findings reflect concerns that the employment relationship is no longer viable and where the prospects of rehabilitation are poor. The matter must be assessed objectively, and with careful consideration of all surrounding circumstances, not just the views expressed on behalf of the employer. Those cases are the exception, and in the matter before me, the employer has not shown that the exception should apply.

60For these reasons, I find that the appropriate outcome in all of the circumstances is this case is that the complainant be reinstated to employment as an Operational Manager.

61It has been just over 18 months since Mr. Potter’s employment was terminated. It is my belief that the passage of time has allowed him to reflect on the manner in which he responded to the December 24, 2015 incident. He understands his role and his responsibilities as an Operational Manager, and he has shown insight into and remorse for his part in what happened. He has also expressed a strong desire to improve his performance as a manager. It is my expectation that he will do so.

62In my view, a six month unpaid suspension is an appropriate disciplinary response. The employer is to reinstate Mr. Potter to employment as an Operational Manager within 30 days of the date of this award, or within such other period as the parties may agree. Compensation is to be paid to Mr. Potter from the date six months after his discharge until he is reinstated, subject to mitigation. I also direct the parties to develop a training plan so that the employer’s concerns regarding the deficiencies in Mr. Potter’s paperwork and report writing skills as well as any other shortcomings in his managerial abilities; I direct them to do so within 60 days of the date of this award, or within such other period as they may agree. I remain seized with respect to the implementation of this decision.