PSGB# P-2016-1778

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Huppmann

Complainant

• and -

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

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE COMPLAINANT

Richard Huppmann

FOR THE EMPLOYER

Peter Dailleboust / Debra Kyle / Sean White Treasury Board Secretariat Legal Services Branch Senior Counsel / Counsel / Counsel

HEARING

October 23, November 9, 28, December 4, 5, 14, 18, 2017, January 11, 16, May 14, August 8, September 19, 26, November 23, 2018, January 24, February 14, 15, March 12, April 2, 25, 2019.

DECISION

1The Complainant, Mr. Huppmann, was dismissed from employment with the Ministry of Community Safety and Correctional Services (Ministry or Employer), on October 6, 2016. He was discharged for engaging in acts of harassment that resulted in a poisoned work environment in contravention of the Workplace Discrimination and Harassment Prevention Policy (WDHP), threatening physical violence in contravention of the Workplace Violence Prevention Policy (WVP) and expiring a non-association between two high risk inmates in the Offender Tacking Information System (OTIS).

2The Employer took the position that there was ample, uncontroverted evidence to establish cause. Mr. Huppmann challenged his dismissal and argued that the Employer failed to establish a sufficient basis to sustain his discharge.

Context and Background

3There was considerable detail about the functioning of correctional facilities and security threat group management. Much of the evidence about the functions and responsibilities of Field Intelligence Officers, (FIOs), their work with other justice partners and the ongoing threats posed by inmates who are deemed members of Security Threat Groups (STGs) provided useful context. However, the parties asked that I be mindful of the sensitive nature of some of this evidence. While I have carefully reviewed all of the evidence that was put before me, a good deal of it did not speak directly to the allegations that formed the basis of Mr. Huppmann’s discharge from employment and I have restricted my recitation of the evidence to that relating to the specific allegations.

4In 2010, the Ontario Corrections Intelligence Unit (OCIU) was formed and Mr. Aspiotis was hired as the incoming Manager. The Unit became operational in 2011 and was staffed by FIOs who reported to Mr. Aspiotis. Generally, the FIO role was to assist in the management and intelligence gathering for STGs, which was a generic term that refers to a number of criminal groups or gangs, such as street gangs, terrorist groups, extremist groups and organised crime.

5Mr. Aspiotis sent a memo to all Superintendents in February 2011, when FIOs were first assigned to various correctional facilities, to introduce them and set out their responsibilities:

The role of the FIO is primarily to identify, validate and monitor members of Security Threat Groups in conjunction with institutional staff in order to contribute to safe institutional operations. In addition, FIOs will gather and disseminate appropriate information and intelligence.

The responsibilities for investigation or inquiry in matters related to staff still remains the responsibility of the Correctional Investigation and Security Unit (CISU).

ACTIVITIES

Activities that the FIO will take in the interim pending final policy language will include, but shall not be limited to:

• Assessing institutional processes for
  • The identification of STG inmates
  • Institutional processes for tracking STG inmates
  • Current management practices for managing STG inmates
  • Retrieval of any local direction/policy/standing order regarding STG management
• Reviewing reports involving STG inmates
• Interviewing inmates suspected of being STG inmates
• Reviewing inmate trust accounts of STG inmates where unusual activities are noted
• Reviewing instances of contraband discovery for determination of STG activity
• Establish linkages with local police and intelligence agencies”

6Although a final policy document was referenced in the February 2011 memo, a written operational policy for the Unit was never completed. One was written, vetted and submitted to the field for feedback, but the policy was not finalised before the Unit was reorganised in 2013. Mr. Aspiotis testified that the FIOs consequently worked in accordance with the memo issued to the Superintendents and with their training.

7Thirteen FIOs were hired and assigned to several geographic locations. Mr. Huppmann was among those first hired and he worked closely with Mr. Aspiotis. Mr. Aspiotis and Mr. Huppmann had known each other since 1999 and shared a longstanding interest in the presence and management of STGs in correctional facilities. They sat together on the sub-committee that reported on STG management, which eventually lead to the establishment of the OCIU. They were also both members of the Ontario Gang Investigator Association (ONGIA), a network of members from different law enforcement agencies across Ontario involved in the prosecution, prevention, supervision and gathering of intelligence on gangs and gang related activities.

8According to Mr. Aspiotis, Mr. Huppmann was given a senior role among the FIOs to provide guidance, advice, insight and training, including assisting with the initial orientation. Mr. Huppmann’s expertise was further relied upon when he drafted the OCIU Collection Coordination & Intelligence Requirements Management (CCRIM) Pilot Project (2013). This document covered a number of issues, including the movement of contraband, indicator incidents or red flags and other issues related to the presence of STGs within correctional facilities.

9AA¹ was also successful in the initial FIO competition and met Mr. Huppmann for the first time when they were hired as FIOs. She regarded Mr. Huppmann as extremely knowledgeable, well versed in the role of the FIO and policy savvy. He was also very confident and willing to share his knowledge, and she came to view him as a mentor. She was also aware of his increasing assumption of responsibility in the unit, where he would fill in for the manager and provide peer feedback. In time, they developed an intimate personal relationship, which ended sometime in 2013.

10In 2013 two units, the CISU and the OCIU, were brought together under one roof. The OCIU had previously been staffed by a Manager, an analyst and 13 FIOs, however, significant staff reductions followed the reorganization. The Unit went from 13 FIOs to 4, then to 5: one per region, except for the North which was given an additional FIO due to the size of the area to be covered.

11Staff were advised of the reorganization and that they would have to compete for their positions. Ultimately, the competition was restricted to current FIOs, who were permitted to apply to any of the four regions, ranking their preferences. The top scoring candidate received their first choice of work location and each candidate was then offered a position in descending order of their ranking.

12Mr. Aspiotis’ best recollection was that AA ranked first or second overall and ended up at the institution of her choice. Mr. Huppmann was a successful candidate for one of the 5 FOI positions; however, he did not get any of his stated preferences and was offered a different location than any of those for which he had expressed an interest. He declined to accept an FIO position and returned to the role of Sergeant, or Operational Manager (OM), at the same correctional facility where AA was awarded the position of FIO.

General Allegations of Harassment

13AA testified that when her relationship with Mr. Huppmann ended it was not an easy breakup. She was very concerned that the break-up would have a negative impact on her other personal relationships and in the workplace. AA subsequently heard from three different colleagues that Mr. Huppmann was saying that he hated her or was talking about her in a way that clearly left that impression. She was also told by a number of colleagues that he had disclosed that he had previously had a romantic relationship with her and that they had fallen in love.

14Over the next couple of years, AA had a number of interactions with Mr. Huppmann that she regarded as rude, intimidating and undermining of her in her role as FIO. Several other witnesses also recounted incidents where Mr. Huppmann engaged in conduct that they considered inappropriate. Most of these exchanges were fairly discrete and short lived, however, AA feared that some had a wider impact:

a) AA said that she received a text message from Mr. Huppmann in December 2013 warning her “not to contact him in any way shape or form”. He also accused AA of of using him to secure her job;

b) Mr. Aspiotis testified that in 2013 Mr. Huppmann told him that AA had “better not be” one of those chosen to attend the upcoming ONGIA conference. Mr. Aspiotis was also present when Mr. Huppmann advised the ONGIA Board, of which they were both members, that he would not attend the conference if AA was selected as one of the volunteers;

c) AA did attend the ONGIA conference in 2013 and testified to several incidents where Mr. Huppmann acted aggressively: he refused to serve her at the bar that he was staffing; he mouthed “fuck off” when he saw her in an elevator with DC Stubbings; and made disparaging comments about her in front of others attending the conference. AA acknowledged that she did not actually hear Mr. Huppmann swear when she was in the elevator, however, she was unshaken in cross examination that she saw him mouth the words. She was not questioned about any other profanity she heard him utter.

Two other witnesses, Mr. Cumberland, another FIO, and Detective Constable Stubbings also attended ONGIA in 2013. Mr. Cumberland confirmed that Mr. Huppmann refused to serve AA when he was working at the bar. Eventually she stopped going to the bar and had someone else get her drinks.

DC Stubbings interacted with Mr. Huppmann several times at the conference and described a number of hostile comments. As he was entering an elevator with AA and another colleague, Mr. Huppmann walked past, and DC Stubbings heard him say “fucking bitch” or “fucking cunt”. Subsequently, when he was sitting with AA on the patio, Mr. Huppmann walked by and commented that DC Stubbings “was not too particular about the company he keeps” and then looked at A and called her a “cunt”.

Neither AA nor DC Stubbings were cross examined on what they heard Mr. Huppmann say during the ONGIA conference or any inconsistencies in their evidence.

d) DC Stubbings also testified to an incident after the ONGIA conference where Mr. Huppmann followed him into the men’s washroom and said that AA was not a good person and that DC Stubbings didn’t know everything about her or know her the way he did.

e) Mr. Cumberland testified that he and Mr. Huppmann had been very close friends and that he had told him of the personal relationship with AA. Shortly after the reorganisation of the Unit, their friendship abruptly ended when Mr. Huppmann phoned him and asked him not to speak to AA anymore. Mr. Huppmann made it clear that if Mr. Cumberland refused his request, their friendship would be over. Mr. Cumberland told Mr. Huppmann that he worked with AA and intended to keep speaking to her even if that affected their friendship.

f) AA testified that in July 2014 she was in the security office with Mr. Camman, the Security Manager, and a police officer when Mr. Huppmann entered and said in a loud voice that he needed to speak in confidence to the Security Manager. AA left, along with the police officer, however she felt that this was a power play to make her feel as if she didn’t belong there.

Mr. Camman confirmed that Mr. Huppmann requested a private meeting with him. He asked if they could go to another room, but Mr. Huppmann insisted that since this was the Security Manager’s office, the others should leave. Mr. Camman felt that Mr. Huppmann acted this way to slight the other parties and he recalled the incident as embarrassing and uncomfortable. He also explained that, as the Security Manager, he would not normally receive information of a personal nature.

On cross examination, Mr. Camman agreed that it was not possible to have a private conversation in his office if others were present.

g) Mr. Camman testified to a further incident where Mr. Huppmann indicated that he had information to share, but stipulated that if he gave it to him, he could not disclose it to AA. Mr. Huppmann did not qualify the information as of a personal nature and Mr. Camman declined to accept the information with this restriction.

h) AA also testified that in July 2014, she was leaving the institution when she saw Mr. Huppmann waiting to go in. They were at a secure entrance, or sally port, where one door has to be secured before the next one opens. She made eye contact with Mr. Huppmann and he quickly closed the secure door behind him so that she couldn’t enter. She was forced to get the attention of the officers to re-engage the door. In her experience, this was a departure from the normal, courteous response of holding open the door to the sally port so that your colleague could pass.

Similarly, in April 2015 AA called down to one of the units to ask for an inmate she intended to interview. Mr. Huppmann took the call and, while the tone of the call was initially professional, he subsequently slammed the phone down while she was in mid-sentence.

i) Deputy Superintendent (Santos) Wallace was an Operational Manager at the same institution as AA and Mr. Huppmann. She testified that Mr. Huppmann told her he was very upset that AA was the FIO and that he felt he was more qualified for the position. He also told her that he and AA had previously had a personal relationship, that he broke it off and AA wasn’t happy about it.

Mr. Huppmann later consulted Ms. Wallace about text messages that he intended to send to AA; she advised him that it was not appropriate to send texts at work on personal matters. She cautioned him again when he showed her an e-mail he wanted to send to management in which he outlined details of his personal relationship with AA. Beyond advising Mr. Huppmann not to send these messages, Ms. Wallace did not recall any further details regarding the contents of either message nor did she know if Mr. Huppmann actually sent the email.

j) In July 2014 AA learned from a colleague that Mr. Huppmann was telling staff at the correctional facility that she, as FIO, will be investigating staff. AA was extremely concerned about what she perceived as false information being spread among members of the institution. In her experience, an FIO has no role in an internal investigation of staff and she personally had never been involved in such an investigation.

Mr. Aspiotis confirmed that the work done by FIOs depended on a free flow of information with other members of correctional staff. There was some initial resistance in the institution to the presence of FIOs and AA worked hard to earn the confidence of her colleagues. In his opinion, and that of AA, the belief that FIOs were responsible for investigating allegations of staff wrongdoing would seriously jeopardise an FIO’s ability to gain their trust.

Mr. Aspiotis described the work of the OCIU and the CISU as very distinct. In his experience, there was very little overlap between the two units. The CISU would occasionally ask his unit for information on sub-culture or trends, but there was a very clear managerial and operational delineation between the two. He further testified that the bright line was deliberate: whereas the CISU had an adversarial relationship with staff, his unit, the OCIU, depended on staff and looked to them as an information resource.

Mr. Cumberland further confirmed that FIOs are not responsible for investigating staff. He added that FIOs rely on front line staff for information and that if it appeared that they were responsible for investigating staff they might not be open and honest with them.

Expiry of Non-Association

15The Offender Tacking Information System, (OTIS), is an electronic database of all current and past offenders that begins upon admission to a correctional facility, with a record created for every inmate. All relevant personal information is entered into the system, creating a database that can be used for the management of inmates. The system includes certain tombstone information, such as name, date of birth and custodial history. It also permits staff, including managers, to input other relevant information, such as alerts or general warnings. Alerts, which can be active or inactive, are added to highlight any issue that might be of concern once an offender is in the care and custody of a correctional facility and cover a range of issues such as allergies, special diet, management risks or STG membership.

16A non-association is one type of alert that addresses individual contact within the facility. It is specifically designed to trigger a warning to staff if they attempt to house two inmates together when they should be kept apart. There is a field to identify the reason that two inmates are subject to a non-association order, such as whether by judicial order or because they are members of rival gangs. OTIS also includes a section for further comment. The system operates on a reciprocal basis: a non-association entry made for one inmate will automatically be entered for the other inmate with whom there is a non-association alert. Similarly, when a non-association is expired for one inmate, it will automatically expire with respect to the other.

17Management at the correctional facility, including Sergeants, Deputy Superintendents and Superintendents, all have access in OTIS to expire an active non-association, rendering it inactive. Although staff can self-identify in the comment box, the electronic system does not automatically disclose on its face who expired a non-association. That information must be obtained by IT, through an examination of the underlying journal table that records the username of individuals who enter changes in the system. Once a non-association is expired and becomes inactive, a warning will no longer pop up if the inmates are housed together.

18In 2008 the Security Manager at another institution placed a non-association in OTIS with respect to inmates BB and CC. The reason cited was that they were rival gang members; it was further noted in the comment section that inmate BB was charged and acquitted in the murder of an associate of inmate CC.

19In 2015, both of these offenders were incarcerated at the facility where AA and Mr. Huppmann worked. Inmate BB became a person of interest for AA and she was aware that inmate CC presented behavioural issues in the institution, with several incidents of discipline for misconduct. She was consequently monitoring the conduct of both BB and CC.

20On February 18, 2015, AA emailed a police-liaison as part of her fact finding with regard to these inmates. She identified the two inmates and said that she was interested in non-associations between the two and whether they were both still considered active in their respective gangs. She advised that inmate CC had recently been a behavioural management concern and “is desperate to be moved to the same unit housing BB. Any info would assist in the intel probe especially concerning CC’s movement to be closer to BB”. Her police contact responded two days later and provided the date of birth and gang affiliation for each offender. He also said “Information is that CC is the half-brother to BB.”

21On March 2, 2015 Mr. Huppmann expired the non-association between inmate BB and CC. He did not enter his name or provide a reason for the expiry, however, Paul Wishak, a senior manager in the operational support division of the Ministry’s Information Technology (IT) department, identified him based on the unique username he used to make the entry in OTIS.

22On March 3, 2015, Wayne Routh, the on-duty sergeant, called AA at home to ask about the non-association between inmates BB and CC. Mr. Routh indicated that they might be housed in the same unit and he wanted to check that everything was above board. The next day, AA contacted Ms. Maebrae, the records manager at the institution, who immediately reactivated the non-association, notified Deputy Superintendent Nesbitt and investigated what happened.

23Ms. Maebrae was familiar with inmate CC and was aware that he had a history of assaulting other inmates and staff. Ms. Maebrae was concerned when she discovered that a non-association involving this inmate had been expired and that no reason was given in the comment section. She believed that anyone in her institution would know that they should always include the reason for their decision and, therefore, she was very troubled by the absence of an explanation in this instance. It was so unusual that she thought it was an error.

24On March 3, 2015 Mr. Routh² filed an Occurrence Report reporting that an anonymous letter³ was sent to security setting out inmates’ fear that BB and CC were trying to be housed together and that one of them was in possession of a ceramic knife. Mr. Routh further noted that “Inmate CC for several weeks has been making attempts to have staff remove his non-associations and place himself and inmate BB together stating that they are ‘brothers from different fathers’.” Following receipt of this letter, the relevant units were locked down and a search conducted on March 4th, 5th and 6th. No weapons were found and the unit was unlocked on March 6th.

25Mr. Routh also sent a series of emails, between March 3 and 4, 2015, advising staff, including Mr. Huppmann, of the events unfolding around inmates BB and CC. The emails advised of the inmate letter warning of the possibility that CC had a knife, that inmates BB and CC wanted to be housed together and that a level 2 search was conducted. Mr. Huppmann had been on duty on March 2nd, off March 3rd – 5th, returning on March 6th; he did not respond to Mr. Routh’s emails or disclose his expiry of the non-association between the two inmates.

26Virtually all of the witnesses, including AA, OCIU Manager Aspiotis, Security Manager Camman, FIO Cumberland, Deputy Superintendent (Administration) Hooper, Records Manager Maebrae, Deputy Superintendent (Security and Compliance) (Santos) Wallace and OM Green were asked about the circumstances in which they would expire a non-association and what steps, if any, they would have taken before expiring the non-association between inmate BB and CC.

a) AA did not consider it normal to expire a non-association that someone else had entered. If the information appears to be stale or dated, then the proper procedure would be to reach out to whomever had initially entered the non-association to allow them to update the information or expire it if it should no longer be in effect.

b) Mr. Aspiotis had never expired a non-association and he would not have approved of expiring the non-association between inmate BB and CC. He was familiar with both of these offenders. Inmate BB was a player in the gang community, a power broker who was suspected of playing a role in moving contraband within the facility and had a very high-risk assessment in the internal offender classification system. CC was also seen as an influential inmate who exerted control over other inmates. Mr. Aspiotis believed that collectively BB and CC would be even more dangerous. Furthermore, they were members of rival gangs and BB was implicated in the murder of an associate of CC.

In these circumstances, Mr. Aspiotis testified that there were “a hundred reasons why he wouldn’t house them together and none why I would”. In his view, the risk to the institution and operations was not manageable: CC might try to exact revenge on BB for the death of his associate or they might band together to move contraband. On the other hand, he saw no risk or downside in leaving the non-association in place.

Earlier in his testimony, Mr. Aspiotis had referred to the CCIRM document, prepared jointly with Mr. Huppmann, which refers to requests by inmates for specific unit assignment as an indicator incident “that points toward criminality and STG activity.” As explained by Mr. Aspiotis, when an inmate asks to be assigned to a particular unit it is a significant red flag warranting serious investigation before acting on it. His personal practice is not to house inmates together when they have specifically requested it, as it is just too risky.

c) Mr. Camman had personally never expired a non-association, despite the fact that numerous inmates had requested that he do so.

If Mr. Huppmann had come to him and asked whether he should expire the non-association between inmates BB and CC, Mr. Camman would have advised against it. In his view, housing them together poses a risk to the offenders, who could potentially harm one another and creates a significant liability for the institution.

d) Mr. Cumberland stated that he does not recall ever having expired a non-association and he would not have expired the non-association between BB and CC: he did not place the alert on OTIS, so he would not take it off unless he had extremely credible information to support an expiry. He would definitely not rely solely on the word of the inmates themselves or expire the non-association without speaking to the person who placed it on the system in the first place.

e) Ms. Hooper is currently the Deputy Superintendent of Administration; however, she has also been an Operational Manager. She has never expired a non-association and would not have expired the non-association between inmate BB and CC without consulting the FIO, Security and maybe the police.

f) Ms. Wallace is currently the Deputy Superintendent of Security and Compliance at another correctional facility but has also held a number of other positions at several different institutions, including Deputy Superintendent of Operations, Sergeant or Operational Manager and Correctional Officer.

She has never expired a non-association and has rarely seen anyone else do so. If she was to consider expiring a non-association, she would consult with police and security to make sure that she had all of the relevant information. A critical part of their job is ensuring the safety of inmates and staff. If there was an active non-association she would not put her job in jeopardy without a very compelling reason. BB and CC were well known gang members with a lot of influence in the institution. They were also rival gang members, which in and of itself would be a red flag that they shouldn’t be housed together.

g) Mr. Green was called by Mr. Huppmann; he has worked in corrections since 1993 in a variety of institutions and held several positions, including manager of admitting and discharge. He testified that Sergeants, or OMs, have the authority to expire a non-association and that he understands that this is done on a regular basis. His own practice is to ensure that he’s looked into all the surrounding circumstances so that he can justify his decision, if necessary. He has never seen a directive or been told that he must consult with the security manager or the FIO before making a decision regarding a gang member or STG.

On cross examination he said that he would only expire a non-association after he investigated the circumstances and if he needed the bed space, otherwise he wouldn’t even look at it. He testified that there should always be a reason to expire a non-association, such as the need for bed space or some other institutional pressure. He also said that although he would speak to the inmates involved and range staff before expiring a non-association, he would not consult the FIO. Nor would he contact the person who put it on file: if he couldn’t determine the issue himself and had to call the person who made the entry, he wouldn’t even try to expire the non-association.

27Mr. Wishak further investigated how many times Mr. Huppmann had expired a non-association between January 1, 2008 and December 31, 2016. The results of his search of the OTIS database indicate that Mr. Huppmann only changed one non-association in that period, which was on March 2, 2015 with respect to inmates BB and CC.

28When AA learned that Mr. Huppmann had made the change in OTIS, she thought this was another attempt to undermine her role as FIO. There could have been serious repercussions from the expiry of the non-association between BB and CC and she believed that it would put into question her capabilities as an FIO if she were to deliver the wrong information.

29Mr. Aspiotis further testified that the expiry of a non-association would have a negative impact on AA as the FIO. Mr. Aspiotis believed that it would reflect poorly on his unit and the FIO if something had gone wrong as a consequence of inmates BB and CC being housed together. The OCIU are supposed to be the experts and if an error was made it would be assumed that they had contributed to the mistake. In this particular case, AA had already produced intelligence reports on inmate BB and CC and was very aware of their activities. Allowing them to subsequently be housed together fundamentally undermines the value of her efforts and reports.

30Mr. Cumberland, who was himself an FIO, testified that while FIOs might be asked for their recommendation on whether inmates should be housed together, he did not believe that there would be any impact on the FIO if someone else expired a non-association and two inmates were placed in the same unit.

October 27, 2015 Request for Information and Response

31In the fall of 2015 Mr. Huppmann advised the Workboard Co-ordinator at his home institution that he suspected that inmate DD might be an STG member. She followed up and captured their conversation in an email that she sent to him, with a copy to AA:

To recap our conversation from this morning the above offender … refused to work. You indicated this morning that it is your feeling that the offenders letter/mail he was sending out led you to believe that he is a suspected STG, I will make a note on his file … hopefully … it can be investigated and either confirmed or validated.

32Upon receiving the e-mail, AA proceeded to investigate and try to validate whether the inmate was an STG member. There was no STG designation in OTIS and she had no other information suggesting that he might warrant an STG designation. She reached out to other justice partners to see if they were aware of any links between the inmate and an STG.

33AA had not been in touch with Mr. Huppmann since receiving his text warning not to contact him and she was concerned about how he might react to even a professional communication. She went to Mr. Aspiotis to explain the situation and together they drafted the following e-mail:

Sgt. Huppmann,

Your belief that this inmate is possibly a member of an STG is not supported by any justice partner. Please provide the information that supports your suspicion so that this concern can be investigated.

34Mr. Huppmann replied to this request for information as follows, copying all of those who were initially included and adding the Superintendent, Deputy Superintendent and the Security Managers:

My “suspicion” as you have put it is based on evidence collected from outgoing mail. As you may be aware, information from Justice Partners is limited to evidence that is available from within the community. Designating an inmate as a Security Threat Group member is a correctional designation and should therefore be based on information and investigation that originates from within our facilities and does not rely only on external sources.

I will forward the piece of evidence to the Security Managers who may provide it to you at their discretion.

35AA testified that she felt disrespected and as if she was being “schooled”. In her view, Mr. Huppmann’s email cast doubt on her competency as an FIO and put her role in question. She was particularly aggrieved that he copied upper management on his response, which she viewed as an attempt by Mr. Huppmann to exert power and control over her.

36Mr. Aspiotis regarded the e-mail as unresponsive to AA’s request, stand offish in tone, uncooperative at best and obstructionist at worst. Mr. Huppmann was essentially telling AA how she should do her job, implying that he knows better than her. Mr. Aspiotis also considered it inappropriate for him to copy almost the entire senior management team at the institution and saw this as a power play by Mr. Huppmann.

37On cross-examination Mr. Aspiotis agreed that the Security Manager is the usual point of contact for the FIO and that AA’s email did not specifically say how or when the information she requested should be provided. Nonetheless, he reiterated his view that Mr. Huppmann’s response to AA’s request for information was obstructionist. He testified that FIOs need to understand what is going on in the institution and are therefore not discouraged from speaking to front line staff. Mr. Huppmann was asked by AA for the information that supported his suspicions regarding inmate DD. She did not ask for the evidence or for a report. She was simply asking why Mr. Huppmann believed that the inmate was a member of an STG. He further clarified his view on redirect, stating that it would cripple the ability of the Unit to do its work if everything had to be routed through the Security Managers.

38The next evening, at 21:30 p.m., AA received two text messages.

The first said “Do not challenge me again … I will not be so polite next time.”

It was followed by a second text that said “Clear?”

39AA suspected that the text messages were from Mr. Huppmann and felt that she was being physically threatened. She phoned Mr. Aspiotis, her manager, and he confirmed that the phone number matched the cell number that he had on file for Mr. Huppmann. This was the breaking point for AA and she filed a WDHP complaint after receiving these text messages. She also contacted the Domestic Violence Unit at the local police department.

40Mr. Aspiotis testified that he was extremely troubled by Mr. Huppmann’s response. He confirmed that AA called him after receiving the two text messages and that she sounded petrified. He interpreted the text messages as threats, given the overall context in which they were made, and they were treated as such.

41Mr. Huppmann was subsequently asked to prepare an Occurrence Report (OR) to provide his version of events. He described his interaction with AA as follows:

At 14:28 hours I received an email from AA. Her email was very abrupt and challenging. In her e-mail she gave direction that I was to provide directly to her the information that I provided to … She also chose to identify that inmate DD was not identified as a member of a criminal organisation by any justice partners. I found it completely out of the ordinary for AA to communicate directly with me as the process here … is that information is communicated to her through the Security Managers. In addition, AA did not include any Senior Administration … yet included her Supervisor Mr. Aspiotis. I found this to be highly unusual and inappropriate.

At 14:55 I responded … I made AA aware of the fact that my suspicion, as she termed it, was based on evidence collected from within the facility. I also stated that Security Threat Group Designation does not solely rely on information from Justice Partners but rather on information and investigation from numerous sources, the most important of which is from within our own facilities. The Security Threat Group designation is a “security” related designation meant for correctional settings and therefore has a lower burden of proof than designation as a member of a criminal organization.

I made this statement as AA was dismissive of my “suspicion” in her correspondence and seemed to doubt the reliability due to the fact that justice partners did not support my belief. In addition, I clearly stated in my correspondence that the evidence would be forwarded to the Security Manager who could provide AA with a copy at their discretion.

My concerns with this situation are numerous. First and foremost I question why AA chose to address me in the manner that she did. Her position as Field Intelligence Officer does not carry any Managerial or Supervisory authority over Institutional staff. The standard process is that she is provided information by the Security Mangers after it has been collected from within the facility. Furthermore, the tone of her correspondence was inappropriate. It was condescending and belittling and had no positive purpose other than to challenge. Had she simply asked where the evidence would be sent I would gladly have advised that it would be sent to Security. I feel as though AA took this opportunity to challenge me because of a lengthy personal relationship we were involved in, which ended 2 years ago. At that time I made it explicitly clear to AA that I did not wish to communicate further with her and have not up until the 27th of October.

My second concern is this. Currently I can find no policy that supports the work of the Field Intelligence Officers within facilities. The initial policy that spoke to the collection of intelligence on Security Threat Group members and the ability to validate inmates as Security Threat Group members appears to have been removed from the ISPP Manual. I am unsure under what authority I, or anyone, from within the institution, would release information to any of the Field Intelligence Officers?

42Mr. Aspiotis viewed Mr. Huppmann’s OR as very defensive. He did not think there was any reason for Mr. Huppmann to take offence at the request or the tone of the email. He was also surprised by Mr. Huppmann’s statement that he had told AA not to contact him given that they work in a collaborative environment.

43Mr. Aspiotis said that he was shocked by Mr. Huppmann’s suggestion that he was unsure of the authority under which he was to release information to the FIO. The Unit had previously received advice from the Legal branch confirming that the function of the OCIU allowed it to receive business records from anyone in correctional services. Mr. Huppmann would have been aware of this memo and Mr. Aspiotis said that he was dumbfounded that Mr. Huppmann would question the information sharing function of the FIO.

44Mr. Green testified that Occurrence Reports are the normal way that staff communicate with the Superintendent and that he has personally been asked to write one after a heated exchange. He was aware of conflict of interest forms that deal with outside agencies or where inmates are family members, however conflicts within the institution are always reported in Occurrence Reports.

Investigation and Discipline

45Immediately after the events of October 27th and 28th, Mr. Aspiotis contacted the manager of the CSOI to inform him that AA had received a threatening text message from Mr. Huppmann and that he had directly challenged the role of the FIO. AA also filed a WDHP complaint.

46Ultimately, there was a WDHP investigation. During the investigation Mr. Huppmann responded to the allegations, providing some explanations for his conduct and some admissions. There were several incidents that Mr. Huppmann did not recall, such as slamming the door on AA, slamming the phone down during a telephone call with AA or expiring the non-association in OTIS. And several actions that he defended as entirely appropriate and warranted, such as his response to AA’s request for information in October 27, 2015.

47He also acknowledged other conduct, but denied that he was targeting AA. He admitted that he had informed staff that FIO’s would be investigating staff but said that he was referring to himself and trying to explain why he didn’t take the FIO position that had been offered to him. Similarly, he agreed that he told Mr. Camman that he wanted to speak to him privately but said that he was trained to handle sensitive information in a confidential manner and that he wasn’t the one who actually asked AA to leave the room.

48Mr. Huppmann also agreed that he had spoken about his personal relationship with AA with co-workers but said that he had only told two people. He told the investigator that their relationship was well known in the institution and he did not deny it when asked, but he did not share any personal details.

49Lastly, he offered his perspective on other incidents, to rebut the suggestion that he had harassed AA. He said that the message he sent in December 2013 was sent before they were working together and was strictly in relation to their personal relationship. He also said that he did not try to block AA from attending the ONGIA conference in 2013, but merely explained that it would be very uncomfortable for him if she did attend. When they both attended the conference, Mr. Huppmann said that he was never rude to AA although he did try to minimise their interaction.

50The Investigator concluded that Mr. Huppmann had harassed AA and poisoned her work environment. Specifically, he found that Mr. Huppmann:

a) Engaged in unwelcome comment and conduct;

b) Sent a message in December 2013 suggesting that AA had gained her position by taking advantage of Mr. Huppmann, which, when viewed in the context of other communication and behaviour directed toward AA, constituted harassment contrary to the WDHP policy;

c) Sent a condescending email in relation to a task that AA had been assigned, which constituted harassment under the WDHP policy;

d) Shared personal information in an angry and accusatory manner within the workplace and created a poisoned work environment for AA in breach of the WDHP policy;

e) Breached the WDHP policy by disclosing his prior relationship with AA in an Occurrence Report;

f) Took action which could have interfered with AA’s ability to carry out her duties, which constitutes personal harassment and the creation of a poisoned work environment, contrary to the WDHP.

g) Made a threat that could be interpreted as threatening physical violence, contrary to the Workplace Violence Prevention Policy.

51Mr. Denis was the Acting Director of the Regional Office, responsible for overseeing the operations of four correctional facilities, including the one where AA and Mr. Huppmann worked. He recommended that Mr. Huppmann should be discharged from employment for cause after reviewing the investigation report, the notes of the allegation meeting and consulting with legal and human resources. After completing the approval process, he signed the dismissal letter.

52Mr. Denis testified that he accepted all of the findings of the WDHP investigation and agreed that Mr. Huppmann harassed AA, creating a poisoned workplace, and that his text message on October 28, 2015 constituted a threat of violence. He considered the text message to be very open ended, with no clarity on what Mr. Huppmann intended to do the next time AA challenged him. Therefore, it was reasonable for AA to interpret his message as a threat. Mr. Denis acknowledged on cross-examination that, despite his view that Mr. Huppmann had threatened AA, Mr. Huppmann remained in the workplace with AA for nearly a year while her WDHP complaint was being investigated.

53Mr. Denis also thought that Mr. Huppmann’s expiry of the non-association between inmate BB and CC raised an array of concerns about institutional security and safety. He testified that only the Superintendent or their delegate had the authority to remove a non-association. In his experience, that delegated authority was given to the Security Manager, not individual Sergeants, and by expiring the non-association without first bringing it to the attention of the Security Manager or the FIO, Mr. Huppmann exceeded his authority. Furthermore, Mr. Denis was very concerned that Mr. Huppmann failed to report the entry when it was modified.

54Overall, Mr. Denis considered the expiry by Mr. Huppmann of the non-association between BB and CC as irresponsible, putting the institution at risk, with no indication that Mr. Huppmann did an in-depth review of relevant information before entering the change into OTIS. He considered the date of the original entry several years prior to be irrelevant. It was the relationship between the two inmates and the risk that posed that was paramount. In his view, Mr. Huppmann should have done his due diligence to determine if that risk still existed, consulting with peers, Security Managers and the FIO. Fortunately, there were no negative outcomes, but he viewed Mr. Huppmann’s actions as an unacceptable risk.

55Mr. Denis reviewed several written policies, such as the Standing Orders at the institution, including the section on OTIS and Special Handling Alerts, testifying that these had been violated by Mr. Huppmann. On cross examination he acknowledged that non-associations were not specifically addressed. Mr. Denis was unshaken, however, in his view that the appropriate process, which would include seeking the necessary authority and consulting others, was not followed by Mr. Huppmann. Regardless of whether that process was clearly spelled out in a written policy, he stated that there was a clear practise that Mr. Huppmann would have known from his years of experience working in corrections.

56At the allegation meeting Mr. Huppmann said that now that he was aware of the process, he would contact the Security Manager in the future. Mr. Denis believed that he always knew the proper protocol; he concluded that Mr. Huppmann had the experience, as an OM and a former FIO, the training and awareness of how serious the expiry of a non-association could be in these circumstances, yet still failed to consult anyone or exercise the appropriate degree of caution.

57Mr. Denis also regarded the expiry of the non-association as another attempt to undermine AA. In his view, in corrections culture, the FIO may well have been blamed for not catching the expiry if a unit disturbance or injuries occurred. Moreover, on cross examination when challenged on this point, he stated that the impact on AA not being consulted would also come from the optics that her opinion was not valued. In his 27 years of experience in Corrections, he was unaware of any OM ever expiring a non-association. Taking all of these factors into account, along with the other complaints from AA, Mr. Denis said that the only explanation he was left with was that this was a further attempt to undermine AA.

58Mr. Denis reviewed the other allegations of harassment and reached the following conclusions:

a) He considered it arrogant, rude and inappropriate for Mr. Huppmann to have asked AA to leave the Security Manager’s office. AA had the necessary security clearance and his actions would have appeared unprofessional to the police officer present.

b) Mr. Huppmann’s suggestion that AA would be investigating staff was a serious allegation. Staff were initially wary of the FIOs, under the false belief that they would be involved in investigating their conduct. The Superintendents had to assuage those fears and, when Mr. Huppmann promoted the idea that the FIO would be involved in staff investigations, he re-energized staff concerns. These comments would polarise staff, undermine AA and affect her ability to do her job;

c) Slamming the phone mid-conversation was disrespectful and another example of how things had gone astray;

d) Mr. Huppmann’s October 27, 2015 email response to AA’s request for information about inmate DD was a further attempt to undermine her: he tried to make her appear incompetent by “schooling” her publicly and by copying a number of people who had no business being included. He also impeded her ability to perform her work when he refused to send her the information that she requested.

e) In his subsequent Occurrence Report, Mr. Huppmann disclosed his personal relationship with AA. Mr. Denis regarded this information as irrelevant and serving no purpose except to taint AA in the eyes of those who read the report. In the same OR, Mr. Huppmann also alleged that AA’s email had been abrupt, challenging, belittling and dismissive. Mr. Denis disagreed with that assessment and regarded AA’s email request as a regular part of her duties.

59The final thing that Mr. Denis considered before recommending that Mr. Huppmann be dismissed, was that he had not shown any remorse or accepted any responsibility for his conduct. For Mr. Denis, Mr. Huppmann’s disregard for the process was exemplified by his comments during the allegation meeting when he joked that if any discipline was to be imposed, he’d like it to be in January so that he could go skiing.

Submissions

60The Employer submitted that, after a lengthy personal relationship with AA and after he failed to secure an FIO position, Mr. Huppmann harassed AA in an attempt to poison her workplace in contravention of the Workplace Discrimination and Harassment Prevention Policy. He undermined her in her role as FIO and threatened her by text message in a way that violated the Workplace Violence Prevention Policy. These allegations were substantiated by a third-party investigator.

61It was further submitted that Mr. Huppmann also expired a non-association between two high risk offenders without consultation, with no due diligence and for no apparent business reason. In her role as FIO, AA was actively looking into the activities of inmate BB and CC at the time that Mr. Huppmann expired the non-association between them. Mr. Huppmann did not provide a credible explanation for his conduct, nor did he alert anyone at the institution of his actions despite having been copied on email that describes inmate concerns, the lockdown and threat assessment related to inmate BB and CC. While the Employer would concede that Mr. Huppmann had the functional ability to make this change in OTIS, it maintained that he did not have the authority to do so. It was submitted that that authority is reserved for the Superintendent or his designate, and Mr. Huppmann was neither.

62The Employer argued that there is no rationale, plausible explanation for any of this conduct: Mr. Huppmann expired the non-association with no evidence that he first gathered any information, in a manner not a single witness, including his own, would support. Counsel submitted that, on a balance of probabilities, it was more likely than not that the expiry was an attempt to further undermine AA and her work as an FIO. This is entirely in keeping with his other actions where he also tried to undermine AA and her colleague’s confidence in her work.

63In the Employer’s submission, AA gave compelling and credible evidence. AA was cross-examined and many of her allegations went unchallenged. The Employer submitted that her unchallenged evidence should simply be accepted as true. To the extent that Mr. Huppmann denied these allegations during the investigation, these denials were not tested on cross examination and should be given very little, if any weight. Furthermore, while many of Mr. Huppmann’s actions, if viewed in isolation, could seem insignificant, the Employer urged that it was the cumulative effect of this course of conduct that poisoned AA’s work environment.

64Counsel for the Employer submitted that there were several instances where Mr. Huppmann’s conduct served to diminish AA in the eyes of her colleagues: he tried to have her blocked from attending the ONGIA conference in 2013; he asked Mr. Camman, the Security Manager, not to share information with her; told staff that the FIO investigates staff and told other staff that he and AA had a personal relationship. It was argued that Mr. Huppmann engaged in this conduct over a long period of time and at every turn he took the opportunity to sully her reputation, question her abilities, obstruct her ability to do her job and tried to turn others against her.

65In the Employer’s submission, Mr. Huppmann’s course of harassing conduct, taken together with the expiry of a non-association, warrants discharge. Counsel argued that, generally, in instances involving health and safety, discharge will be upheld unless there are significant mitigating factors and that here there were none. Mr. Huppmann has not demonstrated remorse or issued an apology, nor does he appreciate the seriousness of these issues. Counsel also argued that correctional facilities are inherently dangerous and management must be able to rely on its managers to make the right decisions and exercise good judgment.

66Counsel for the Employer vigorously argued that, in all the circumstances, the Employer had just cause to dismiss Mr. Huppmann from employment. It relied on the following cases: Walters (Litigation guardian of) v. Ontario, 2015 ONSC 4844, 2015 CarswellOnt 12001; Walters (Litigation guardian of) v. Ontario, 2017 ONCA 53, 2017, CarswellOnt 574; R v. Henebry, 2018 ONSC 6584; Coca-Cola Refreshments Canada CO. Brampton Plant v. Unifor Local 973, 2016 Carswell Ont 13840, 188 C.L.A.S. 114; U.S.W.A., Local 862, v. Canadian General Tower Ltd., 2003 CarswellOnt 5575, [2003] O.L.L.A. No. 801; Lee v. Ontario (Ministry of Community Safety and Correctional Services), (September 5, 2018) PSGB#P-2016-1344 (Nairn); Gronski v. Ontario (Ministry of Community Safety and Correctional Services), 2015 CanLII 67988 (September 30, 2015), PSGB #P-2012-4661 (O’Neil); British Columbia Maritime Employers Assn. v I.L.W.U., Local 500, 2001 CanLII 62057 (CA LA), 2001 CarswellNat 3935, [2001] B.C.C.A.A.A. No. 92; University of British Columbia v. C.U.P.E., Local 2959, 2005 CarswellBC 2569, [2005] B.C.C.A.A.A. No. 92; Saint-Gobain Advanced Ceramics v. U.S.W.A., Local 202G, 22006 CarswellOnt 9691, [2006] O.L.L.A. No. 454.

67In the alternative, counsel also suggested that reasonable notice for the termination of Mr. Huppmann’s employment would be in the range of 13-16 months: Ontario Liquor Boards Employees Union (Massa) v. Ontario (Liquor Control Board of Ontario), (February 15, 2000), GSB# 2033/97 (Abramsky); Dyson v. Ontario (Ministry of Community Safety and Correctional Services), (January 4, 2014) P-SGB# P-2012-3436 (Carter); Lindsay v. TTC, [1996] O.J. No. 4313; Fewer v. Toromont Industries Ltd., 2009 CarswellOnt 4779.

68Mr. Huppmann submitted that the Employer’s response was high-handed and that they had not met the burden of proof to justify his discharge from employment. He further explained that as a non-unionised, self-represented party he did not see how he could testify and represent himself, so he decided to focus on the argument instead.

69Mr. Huppmann acknowledged that there was conflict between himself and AA but maintained that he was provoked by a number of factors. In his submission, the conflict was generated by a toxic personal relationship that crept into the workplace. He argued that part of the responsibility for this lies with his employer who failed to take the appropriate steps to manage the conflict. Management was aware of their interpersonal conflict in 2014, and although some steps were taken to prevent direct contact between them, nothing was done to prevent communication or advise AA that his work location was restricted. Mr. Huppmann maintained that management’s second failure was the lack of clear direction on the function of the FIO, their authority and working relationships within the institution. In his view, clear direction would have resolved a good deal of the conflict that he had with AA.

70Mr. Huppmann took the position, overall, that the Employer had not shown that his discharge was appropriate. His conduct was not pre-meditated, there was no pattern or recurring incidents and no attempt at progressive discipline. In his view, the Employer had not sufficiently proven the allegations and relied on hearsay and speculation. He remained in his position at the institution with AA for roughly a year after the last incident. In his submission, this confirms that there was no irreparable damage to the working relationship he had with his employer.

71With respect to the individual allegations of harassment, Mr. Huppmann submitted that there was insufficient reliable evidence to sustain a finding of harassment:

a) AA and DC Stubbings told very different versions of what he said at the ONGIA conference, none of which was corroborated by FIO Cumberland. AA’s evidence was also not reliable because it was based solely on her assumption that various remarks were directed to her. Mr. Huppmann agreed that he did not put the inconsistencies to any of the witnesses in cross-examination;

b) There was no evidence that his request to speak to the Security Manager privately was aimed at AA.;

c) There was no evidence to corroborate AA’s allegation that he slammed the door on her in the sally port, nor did AA say that the door was slammed, just that it was closed quickly;

d) The allegation that he told other staff that FIOs would be responsible for investigating staff was hearsay and did not establish that it was directed at AA. Nor could AA recall any specific incidents where those comments had an impact on her;

e) AA testified that the telephone conversation where she alleges that he slammed the phone had been professional up to that point, therefore, it is unlikely that he would slam the phone at the end. In any event, the only evidence to support her allegation is her perception. Mr. Huppmann conceded that he did not cross-examine AA on this allegation;

f) The text messages of December 2013 were sent before they started working together at the institution and was a private text about their personal relationship. Moreover, only part of the conversation was reproduced. Mr. Huppmann acknowledged that these concerns were not put to AA on cross examination;

g) AA’s evidence that she heard that Mr. Huppmann was telling other people about their personal relationship and that he hated her was all hearsay.

h) There are no facts to support the allegation that he expired the non-association between inmates BB and CC to undermine AA, nor was there evidence to indicate that he was aware that the two inmates were on AA’s radar. Mr. Cumberland testified that the expiry of a non-association would not have any impact on the FIO and the evidence that suggested it would, was very speculative. The evidence also established that he did not, and could not, hide what he did; all work on OTIS can be readily traced back to whomever made the entry.

In his submission, the reputation of these two inmates was “more folklore than reality” and the fact that they were rival gang members was never corroborated. In any event, the non-association was easily reinstated within 20 hours, without any harm to AA, the institution or other staff. Mr. Huppmann argued that there was no evidence that the institution was ever endangered and any suggestion that the expiry posed any risk was purely hypothetical.

Mr. Denis, the decision maker, described the expiry of the non-association as ‘deleting’ the information. In Mr. Huppmann’s submission, this misinterprets what he did and the error crept into the decision to terminate his employment. Moreover, his discharge letter alleges that he breached several written policies and directives, however, on cross-examination, neither Ms. Hooper nor Mr. Denis were able to clearly identify the policy that his conduct violated when he expired the non-association between inmate BB and CC.

Mr. Huppmann further relied on the evidence of Mr. Green that it was a common practice at their institution to expire non-associations and that he would take that action without consulting the Security Manager or the FIO. Mr. Huppmann suggested that Mr. Green’s evidence supported the conclusion that there was a common understanding at the institution that staff can and do expire non-associations when they feel that is justified. Furthermore, he submitted that, in the absence of a policy or direction, it was up to each individual Sergeant to decide what circumstances justify the expiry of a non-association and what steps they need to take before doing so.

i) Mr. Huppmann submitted that his e-mail response, text messages and Occurrence Report on October 27-28, 2015 were not rude, derogatory or personal in nature. He did not question AA as FIO, but merely her request for information. In her e-mail request, she did not set out a timeline or indicate to whom the information should be sent. In his submission, his response was in accordance with the established process for the flow of information at the institution. He also suggested that Mr. Aspiotis was not a credible witness as he had lied about when he first learned about his personal relationship with AA.

Mr. Huppmann did acknowledge that his text message was curt and showed poor judgment, but it did not threaten physical violence. Furthermore, he relied on the testimony of Mr. Green as evidence that it was common to use an OR to report conflicts. He also suggested that it should be inferred that the OR was part of a continuing chain of concerns that he raised with management, although he recognised that there was no direct evidence to substantiate his assertion.

72In reply, the Employer submitted that there is no alternative theory or evidence to rebut much of the evidence submitted by the Employer, including AA’s testimony about what others told her, and therefore that evidence should be accepted.

73With respect to the lack of progressive discipline, counsel replied that it is not appropriate where the employee shows no remorse or takes no responsibility for their actions. Even in his arguments, Mr. Huppmann only acknowledged that he exercised poor judgment in sending one text message and he sought to shift the blame to management, further reinforcing the notion that the relationship is damaged beyond repair.

74Lastly, the Employer refuted Mr. Huppmann’s suggestion that any danger associated with the expiry the non-association between BB and CC was speculative. In its submission, it is particularly significant and serious whenever the health and safety of inmates or staff is put at risk, regardless of the actual outcome: OPSEU (Brown/Bellamy) v. Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 49512 (Petryshen).

Analysis

75The evidence in this case was voluminous, as is apparent by the lengthy review in this decision. There were numerous witnesses, dozens of documents and a full WDHP investigation and report. There was no direct evidence, however, from the Complainant, Mr. Huppmann, who elected not to testify. Moreover, he only called one witness in his defence. A good deal of the Employer’s evidence was unchallenged on cross-examination and represents the only evidence put before me. I will refer to the issues this presents again later, however, it is important to note at the outset that there was uncontroverted evidence on many of the allegations in this case.

76While Mr. Huppmann did not explain his alleged conduct or offer a contrary narrative of what happened at arbitration, there was documentary evidence that included Mr. Huppmann’s response at his allegation meeting and during the WDHP investigation. These statements are limited and have not been tested on cross-examination and I have therefore given them very little weight, except where they were declarations against interest.

77Counsel for the Employer urged me to draw a negative inference from Mr. Huppmann’s decision not to give evidence. Mr. Huppmann’s rationale was that he believed that the Employer had failed to meet its burden of proof and, since he thought it would be difficult to testify as a self-represented party, he decided to focus on his arguments. I accept Mr. Huppmann’s explanation at face value and will make a limited allowance to account for the fact that he was not represented by counsel beyond opening statements. I am therefore not prepared to draw a negative inference from Mr. Huppmann’s failure to testify.

78Ultimately, as both parties maintained in final argument, this case turns on a thorough and careful review of the evidence. That includes an assessment of the evidence as a whole to arrive at factual findings that are, on a balance of probabilities, the more reasonable and probable conclusion in all the circumstances.

79Mr. Huppmann and AA clearly had a toxic relationship that was fuelled by their prior intimate relationship and, inevitably, by the reorganisation and subsequent competition for an FIO position in which AA was one of the successful candidates for a reduced number of FIO positions. After 2013, when these precipitating events occurred, Mr. Huppmann and AA were hyper-sensitive, deeply suspicious of each other and tended to view the other’s conduct in the worst possible light.

80While Mr. Huppmann and AA and were undoubtedly both deeply affected by their previous relationship, I find that Mr. Huppmann was unable to control his anger and frustration or keep his personal feelings out of the workplace. There were numerous examples where he engaged in conduct that was unwelcome, demeaning and hostile. He disparaged AA, tried to isolate or exclude her, tried to create an atmosphere of disrespect, undermining her and impeding her ability to do her job. Mr. Huppmann’s behaviour towards AA included a series of micro aggressions that were petty when viewed in isolation, but, taken together, effectively poisoned her workplace. It also included at least two instances that were much more significant.

81There was uncontroverted evidence that Mr. Huppmann:

• Spoke ill of AA to her colleagues, including Mr. Cumberland, DC Stubbings and Ms. Wallace;
• Informed others in the workplace of the extra-marital intimate relationship between himself and AA;
• Tried to have AA excluded from ONGIA, a professional event, when he both tried to issue an edict to Mr. Aspiotis and to the ONGIA Board;
• Subsequently made disparaging comments about her and publicly swore at her when she did attend the ONGIA conference;
• Tried to convince Mr. Cumberland and Mr. Camman not to speak to her or share information with her;
• Advised other staff that she could be responsible for “investigating” them, as he admitted in the WDHP investigation, which would inevitably affect their comfort and willingness to work with her;
• Displayed petty acts of rudeness and hostility, such as refusing to serve her at the ONGIA conference, closing the door of the sally port when he saw her coming or slamming the phone after a telephone conversation, all of which was testified to by AA and was unchallenged on cross examination.

82I am not persuaded by any of Mr. Huppmann’s arguments that the evidence put forward by the Employer was unreliable or should be rejected. I accept the direct testimony of all of the witnesses who testified to these events, most of whom were not challenged on cross-examination. No contrary evidence was introduced and, where there were arguable inconsistencies in the evidence, Mr. Huppmann did not put the inconsistent evidence to the witnesses so that they could offer an explanation.

83Mr. Huppmann did advance a number of specific reasons why components of the evidence were unreliable. In his submission, AA’s evidence was not credible where it was uncorroborated or based on hearsay. As is often the case in incidents of harassment, AA was the only witness to some of the events, other than Mr. Huppmann and I would not reject her evidence simply because it was uncorroborated. Nor do I reject AA’s evidence where she recounts what others told her Mr. Huppmann was saying about her in the workplace. Although it was hearsay, some of her accounts were supported by the direct evidence of other witnesses and others were admitted by Mr. Huppmann during the WDHP investigation.

84These submissions might be more persuasive if there was any evidence to refute AA’s evidence, but there is not. Her unchallenged account is the only one before me. Mr. Huppmann was offered repeated opportunities to take the time he needed to collect his thoughts, formulate his questions for the witnesses and marshal his evidence. He was reminded throughout the hearing that he must put contrary evidence to a witness if he intended to rely on it and that I would only consider evidence that was properly introduced. Mr. Huppmann could have elected to challenge AA’s evidence during cross-examination or testify himself to offer a different account. He did neither.

85Mr. Huppmann also pointed to the inconsistent evidence of AA and DC Stubbings on what expletives Mr. Huppmann directed towards AA at the ONGIA conference. I would note that the inconsistency was not put to AA, who testified after DC Stubbings and DC Stubbings was not cross examined on this aspect of his evidence. AA was cross examined, conceding that she did not actually hear what he said but she was adamant that she saw the words being mouthed.

86Although they recalled different details, I consider the evidence of AA and DC Stubbings as a credible basis to conclude that Mr. Huppmann swore at AA while she was in the company of her colleagues. It is immaterial whether he said fuck off or called her a fucking bitch or cunt. In light of the evidence that Mr. Huppmann told Mr. Aspiotis and the ONGIA Board that he did not want her to attend the conference and the uncontroverted evidence that he was openly hostile to her, in refusing to serve her at the bar, I am satisfied that he directed some form of profanity towards AA when they were at the ONGIA conference.

87Finally, I have accepted the evidence of Mr. Aspiotis, despite his confusion around when he learned of the personal relationship between Mr. Huppmann and AA. Mr. Aspiotis initially said that he was unaware of the relationship until AA disclosed it to him in October 2015. In cross-examination he was shown a document that indicated that he was advised of their relationship at an earlier point in time, but repeated that he didn’t recall learning about the relationship before October 2015. I consider this a very minor error that is of little or no significance to the bulk of his evidence. I have largely relied on Mr. Aspiotis’ testimony with respect to events that he witnessed personally, such as Mr. Huppmann’s experience as an FIO, the attempts to preclude AA from attending the ONGIA conference and his role in managing the conflict over AA’s request for information on inmate DD. When Mr. Aspiotis learned of the personal relationship between AA and Mr. Huppmann is irrelevant to his evidence on these points.

88I do accept Mr. Huppmann’s point that there was no direct evidence that some of his conduct was directed at AA, such as when he asked to speak confidentially to Mr. Camman, the Security Manager or his statements that FIO’s would be investigating staff. However, these were not isolated events and must be weighed in the overall context of his conduct viewed as a whole.

89So, while it is true that there was another person in Mr. Camman’s office when Mr. Huppmann asked to speak to him confidentially, Mr. Camman and AA both thought this conduct was out of the ordinary and uncomfortable. There was no evidence that the ensuing conversation was personal and it was not likely it would be given that Mr. Camman was not Mr. Huppmann’s manager or otherwise involved in staffing issues. Although this was not be the most egregious conduct, I find that it was another instance where Mr. Huppmann could not keep his emotions in check and acted out in a way that compromised AA.

90Similarly, there was ample evidence that Mr. Huppmann’s statements that FIOs would be investigating staff would undercut the trust that AA was building with front line staff. She was the only FIO at the institution and his comments would clearly have a direct impact on her professional credibility.

91There were two additional incidents that were much more significant. First, I have concluded that Mr. Huppmann’s response to AA’s request for information regarding inmate DD was a flagrant act of open hostility. Mr. Huppmann had advised another colleague of his concern that inmate DD was a member of an STG and that colleague had in turn relayed the information to AA in her capacity as FIO. Inmate DD was not on AA’s radar and so she was interested in understanding why Mr. Huppmann had reached the conclusion that DD was a member of an STG. She was sufficiently concerned about how Mr. Huppmann might react to her reaching out to him that she contacted her manager to help draft her request for further information.

92Mr. Huppmann clearly took offence to what I consider an entirely courteous and neutral request. While the request was somewhat curt, it was not, objectively speaking, dismissive, challenging, belittling or condescending. His response was consistent with his view that AA had humiliated him and he responded in a manner that was heavy handed, contemptuous and obstructionist. He refused to forward the information AA sought, requiring her instead to go through an intermediary, the Security Manager. Not only did this impede her ability to do her job, it would tend to diminish her in the eyes of the Security Manager.

93Mr. Huppmann’s email response also escalated the apparent power play that he considered AA to have initiated. She had copied her manager, Mr. Aspiotis, whom she had consulted. Mr. Huppmann said in his OR that he considered this somehow inappropriate. Rather than rise above what he considered a provocation, he doubled down on who should be copied on the email chain. He added several senior members of the institution’s management team, none of whom, with the possible exception of Mr. Camman, the Security Manager, would normally be involved in correspondence of this kind.

94He also used intemperate language in both his initial email and subsequent Occurrence Report to suggest that AA was inadequate to the task at hand. Having copied her superiors, when Mr. Huppmann recited that STG designations do not rely on external sources or that the source of information from Justice Partners is limited to the evidence in the community, he was effectively taking AA to task for failing to understand the basics of her own job.

95In his Occurrence Report Mr. Huppmann says that AA failed to follow the proper protocol when she contacted him directly and he goes on to question her authority to receive the information that she requested. As several witnesses described it, he was “schooling” her in front of management. He was also clearly manipulating the strict, technical state of the current policies at the facility and was disingenuous in suggesting that AA did not have the authority to request the information or contact him directly. As a former FIO, he knew full well what authority the FIO had, regardless of whether he could find an official policy that supports the work of the FIO within the facility or whether the Security Manager was the formal point of contact.

96Mr. Huppmann also tried to intimidate AA when he sent her text messages instructing her not to challenge him again. It was submitted by the Employer that these text messages threatened physical violence in contravention of the Workplace Violence Prevention Policy. While I do not doubt the sincerity of AA’s belief that she was being threatened with physical violence, I am not persuaded that there is a reasonable basis to support that conclusion.

97Mr. Huppmann did not directly threaten AA with physical violence and there was no evidence that he had previously engaged in acts of physical violence towards AA or anyone else. His language was vague and, although clearly intended to berate AA, there were many non-violent ways in which he could have escalated his response if he was challenged again. Nonetheless, I do consider the messages intimidating and designed to silence AA and therefore part of a continuing pattern of harassment by Mr. Huppmann towards AA.

98Lastly, I turn to the expiry of the non-association between inmate BB and CC. There is no doubt on the evidence that inmate BB and CC were known as high risk inmates who were actively agitating to be housed together. Several years before arriving at this facility, security at another institution had made a notation in OTIS of a non-association for these two inmates. The reason was “rival gangs” and the comment section further referred to the acquittal of one of the inmates in the murder of a gang associate of the other inmate.

99Inmate BB and CC were high risk inmates who exhibited many of the warning signs that trouble was brewing. They were powerful players who were known gang members and they were openly pleading to be housed together. As members of rival gangs who had reason to engage in acts of violent retaliation, there was a credible basis to believe that they may cause harm to one another or others. Indeed, the mere fact that the two inmates were requesting that they be housed together was noted in the CCRIM, a document that Mr. Huppmann drafted, as an ‘indicator incident’ or red flag “that point towards criminality or STG activity”.

100Despite the obvious risk, and without any apparent upside, Mr. Huppmann expired their non-association, putting in motion the opportunity for them to get their wish. No warning would be issued if there was an attempt to house them together to alert staff of the potential risk. Mr. Huppmann suggested that the risk posed by his actions was entirely hypothetical. Fortunately, that is true, but the fact that there was no catastrophic outcome does not diminish the seriousness of his actions, especially since it compromised the health and safety of inmates and staff: Brown/Bellamy, supra.

101I am deeply troubled by this conduct. Mr. Huppmann did not follow the expected protocol and acted in a manner that was inconsistent with the evidence of every other witness regarding the expiry of non-associations. While it was not spelled out in a written policy, there was overwhelming evidence of a common practice on what you should and should not do before expiring a non-association. Every witness, including Mr. Green, Mr. Huppmann’s own witness, said that they would not expire the non-association between two inmates without considerable due diligence. At a minimum, this would include speaking to other staff and making a considerable effort to ascertain all of the relevant information.

102All of the witnesses said that they would not assume responsibility for putting other staff or inmates in harm’s way unless they had a good reason and were confident that they had the facts they needed to support their decision if they ever needed to justify it. Mr. Huppmann’s actions were not only inconsistent with the evidence of all of the witnesses, his conduct flies in the face of common sense.

103Moreover, I accept the evidence of Mr. Denis that Mr. Huppmann did not have the delegated authority to expire the non-association in this instance. Clearly, Mr. Huppmann had the technical capacity to access OTIS and expire the non-association. He did not, however, have the necessary authority to do so. Mr. Green’s testimony to the contrary is of little assistance, in that he had expired non-associations as the Manager of Admitting and Discharge searching for bed space, which was not a comparable situation.

104Inmates are tracked in OTIS so that staff can make informed decisions about where they should be housed, work and congregate. The importance of maintaining accurate information in OTIS and the role it plays in ensuring the safety of inmates has been recognised by the Court of Appeal, as was the liability of the Crown in the event that correctional staff are negligent in the execution of those duties: Walters, supra. There are restrictions in the management of the OTIS system for good reason: they are designed to ensure the safety of the institution and the people in it.

105On the evidence before me, Mr. Huppmann exceeded his authority and disregarded his obligations when he expired the non-association without any due diligence. He failed to take any steps to verify his decision. He didn’t consult with Unit Managers, Correctional Officers, the Security Manager, the FIO, the Superintendent or the individual that made the original entry. Nor did he advise anyone that he had made the change, even after he was told that there were serious security issues involving these two inmates.

106While it is true that Mr. Huppmann used his own user ID to expire the non-association, his identity was not apparent on the face of the OTIS screen and was only discovered after an IT investigation. Finally, he failed to include any reasons for his expiry of the non-association on OTIS. There are no apparent institutional or operational benefits to expiring the non-association and it was apparently based on no more than the inmates expressed desire to be housed together.

107Mr. Huppmann did not testify, but as part of the allegation process, he had advised the employer that he expired the non-association because the inmates were half-brothers who asked to be housed together and the original notation was several years old. His explanation was not tested on cross-examination and every other witness who was asked if they would expire a non-association in those circumstances said they would not. No one said they would expire a non-association solely on the request of an inmate and several suggested it would be foolhardy to do so.

108Mr. Huppmann was an experienced member of corrections staff. He was well versed in institutional protocol and especially alert to the risks and manipulations of inmates who are members of STGs. He had been engaged in a low-level campaign of intimidation and undermining of AA since he arrived at the institution. Before he expired the non-association between BB and CC, she had been following up on her own investigation of their activities. While there is no evidence that Mr. Huppmann was aware of her activities, a number of witnesses did express the view that his expiry of the non-association between these two inmates could have a negative impact on AA.

109I have also taken into account the evidence that this is the only time that Mr. Huppmann expired a non-association, that only one other witness, Mr. Green, had ever expired a non-association and that even Mr. Green said that it had always been in response to significant institutional pressure, like a lack of bed space. In light of all of the evidence before me, and the absence of any explanation for Mr. Huppmann’s highly problematic and incomprehensible conduct, I am persuaded that it is more probable than not that at least one of the reasons that he expired the non-association between inmate BB and CC was to further harass AA.

110Even if the expiry of the non-association between inmate BB and CC was not an instance of further harassment, it was shockingly reckless. Mr. Huppmann’s conduct was contrary to what every other witness, including the one witness called in his defence, said would be prudent. He simply took matters into his own hands and removed the non-association without consulting anyone or disclosing what he had done. His actions placed his colleagues and inmates at considerable risk for harm, was a serious act of misconduct and a grave lapse in judgment.

111Whatever the motivation, I regard Mr. Huppmann’s actions as reflecting the same disregard for institutional practices and the authority of others that he displayed in undermining and intimidating AA. In all of these instances, he appears to have felt justified to act however he saw fit, regardless of the propriety or outcome. That behaviour is simply unacceptable in any workplace, especially a correctional facility. This is a dangerous place to live and work. The safety of inmates and staff demands that staff act cautiously and prudently. Individuals are not free to ignore protocol or act out their frustrations merely because they think they know better. Yet, this is precisely what Mr. Huppmann did.

112Having regard to all of the circumstances, I am satisfied that the Employer had just cause to dismiss Mr. Huppmann from employment and that dismissal was the appropriate response. I agree with the Employer’s assessment that progressive discipline was not appropriate in this case. The purpose of progressive discipline is to correct the misconduct, offering the employee an opportunity to learn from their mistakes and improve their behaviour. This requires recognition by the employee that their conduct was problematic and some indication that they are both willing and able to change. Mr. Huppmann displayed a striking lack of insight into his own behaviour. Throughout the investigation and subsequent hearing, he neither acknowledged that his conduct was wrong nor expressed any regret. In the absence of any self-awareness that he had engaged in serious misconduct, there is no basis to conclude that he won’t engage in similar behaviour in the future.

113Mr. Huppmann had no record of previous discipline and roughly 15 years of service⁴ when he was dismissed. In contrast to these mitigating factors, Mr. Huppmann showed absolutely no remorse for his actions or any appreciation that his conduct was problematic. He consistently tried to deflect, shifting the blame to others and failing to take responsibility for his own actions. Even in final argument, he maintained that the Employer was at fault for not properly managing his conflict with AA or providing clear policy directions on the role of the FIO. There was only one thing that Mr. Huppmann believed was marginally inappropriate, acknowledging that he used poor judgment when he sent a text message to AA on October 27th.

114In light of the seriousness of the misconduct and the Complainant’s failure to appreciate that he has done anything wrong, I am satisfied that neither the length of his service nor his prior disciplinary record is sufficient to give the Employer confidence that the employment relationship could be sustained. Mr. Huppmann harassed his colleague and poisoned her work environment. He also engaged in highly risky behaviour when he made changes in OTIS without following accepted procedure, without advising anyone of his decision and for no discernable reason. He expressed no remorse and accepted no meaningful responsibility for his behaviour. He has, by these actions, destroyed the confidence and trust of his employer.

115In arriving at this conclusion, I have also taken into account the higher standard that is expected of managers in a correctional facility. They are afforded a significant degree of autonomy and are responsible for supervising Correctional Officers to ensure the safety of inmates in their custody. The Employer is entitled to require that Operational Managers, such as Mr. Huppmann, demonstrate good judgment and a high degree of commitment to following institutional practices and policies. Management must have confidence that it’s managers will properly perform their “managerial and modelling role”: See Lee, supra, at para. 183, and Gronski, supra.

116Having regard to all of the above, I find that there is no basis to interfere with the Employer’s decision to terminate Mr. Huppmann’s employment. The discharge was a proportionate response to the allegations and the Employer has met their onus of proving just cause on a balance of probabilities. The complaint is therefore dismissed and the discharge is upheld.

Footnotes

1. 1On consent of the parties, the name of the individual alleging harassment is anonymized, as are the names of inmates. In keeping with the commitment to protect the identity of AA, I have not named the exact facility where she worked and removed other common identifiers, wherever possible.
2. 2Mr. Routh was unable to attend due to a medical disability. I allowed his evidence to be submitted in documentary form, including the notes of his interview with the WDHP investigator, leaving the parties free to challenge the reliability of the evidence in their final argument.
3. 3The inmate letter was entered, on consent, for the fact that it had been written, but not for the truth of its contents.
4. 4Although there was no direct evidence on this point, the parties acknowledged in their opening statements that Mr. Huppmann started with the Ministry in 1998, resigned in 2001 and was subsequently rehired with an adjusted Continued Service Date of November 12, 2001.