PSGB# P-2018-2992

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Skoretz

Complainant

• and -

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

Employer

BEFORE

Brendan Morgan

Vice-Chair

FOR THE COMPLAINANT

Christopher Dilts Simpson Wigle Counsel

FOR THE EMPLOYER

Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 8, November 26, 2019; March 27, September 8, December 18, 2020

DECISION

BACKGROUND

1This Decision involves the imposition of a three-day suspension by the employer upon the complainant for misconduct that occurred at the workplace. While the complainant acknowledges that he engaged in the behaviour complained of it is mitigated by a health issue that he was suffering from at the time of the incident. The employer, while acknowledging that the subsequent diagnosis did disclose a medical diagnosis, submitted that they were unaware of the severity of the illness at the time discipline was imposed and further that the medical evidence did not exonerate the complainant. Further the employer argued that given all of the facts before the Board were accepted the penalty that was imposed was reasonable and fair given the misconduct of the complainant. The principal issue for the Board to address in this Decision is what, if any, weight should the complainant’s illness mitigate against the penalty imposed by the employer for the workplace misconduct.

2The complainant, Mr. Gerik Skoretz, is employed by the Ministry of the Solicitor General, (“SOLGEN'' or the “employer”). The complainant is employed as an Operational Manager and is classified as a Staff Sergeant.

3The complainant has, at all relevant times been employed at the employer’s Thorold Detention Centre, (“TDC”).

4On December 31, 2019, the complainant filed a Form-1 Application with the Board complaining that the employer had suspended him without cause for the equivalent of three (3) days. The discipline further resulted in a deduction of the equivalent of twenty-four hours pay from the complainant’s compensation.

5The incident that led to the suspension occurred on July 27, 2018. (the “incident”). On October 15, 2018, the employer imposed the discipline that resulted in the filing of the Form-1 Application.

6At the first day of hearing and together with the Vice-Chair the parties arrived at a series of resolutions involving certain procedural and evidentiary issues. These were ultimately incorporated into an Award dated October 21, 2019.

7Most importantly, the parties agreed to focus their attention on completing an “Agreed Statement of Fact”. The parties were directed to attend at a teleconference on November 19, 2019, to advise as to their progress in developing this Agreed Statement of Fact.

8Subsequent hearing dates were conducted by teleconference commencing in November 2019 culminating with the parties’ submission of an Agreed Statement of Fact to the Board on September 29, 2020. It is sufficient to state that the parties continued to work toward a completed Agreed Statement of Fact for several months but were hindered from completing the document because of two particular factors. These were the logistical difficulties that the Covid-19 pandemic placed on both parties in communicating and meeting in an effective and consistent manner and secondly, the difficulty that the complainant encountered in accessing certain medical information that the complainant required to explain his conduct.

9That said, once the Agreed Statement of Fact was received a hearing date was scheduled for December 18, 2020, where the parties would make their submissions as to the appropriateness of the employer’s suspension.

DISCIPLINE OF THE COMPLAINANT

10Before reviewing the legal positions of the parties it is necessary to review the background to and the events surrounding the incident that resulted in the three day suspension of the complainant.

11It is important to note that the facts surrounding the incident are not in dispute. The parties’ proceeded without calling vive voce evidence. The facts agreed to are discussed below.

12At the time of the incident the complainant had been employed with the employer for approximately 4.5 years. It was acknowledged by the parties that prior to this incident he had no formal discipline record with his employer.

13On July 27, 2018, the complainant was scheduled to work the shift that commenced at 1800 hours (6pm) concluding at 0600hrs (6am). It is my understanding that on that day the complainant worked alongside at least two other colleagues in the “control room” which is exclusive to management as well as having the usual access to other areas of the TDC.

14Based on the Agreed Statement of Fact the complainant’s behaviour became an issue immediately upon the commencement of his shift. The complainant admitted to dumping the office garbage bin on the floor and then proceeded to punch a computer monitor. The force of the punch broke the monitor screen.

15It was acknowledged that the complainant immediately burst into tears after striking the computer monitor. It is agreed that he remained in an emotionally fragile state throughout the balance of his shift.

16His behaviour was witnessed by two other Operational Managers. There was no evidence to suggest that either of these two individuals provoked the behaviour of the complainant nor is there any suggestion that he threatened them or that they felt threatened by his behaviour.

17It is estimated that the cost of replacing the damaged monitor is $300.00.

18The Agreed Statement of Fact, at paragraph 5, states that prior to the incident the complainant believed he had undergone a number of changes to his personality. This included difficulty sleeping, mood swings, constant hypervigilance and/or being in a state of increased alertness and, finally, being short tempered. The complainant believed that he began to notice these changes in January of 2018, some seven months before the incident took place at the TDC.

19On July 2, 2018, the complainant took a medical leave of absence returning to work on July 25, 2018. The absence arose from a situation at work where the complainant had an adverse emotional reaction to his energy drink being removed from the employee refrigerator by another coworker. Based on the documents that were attached to the Agreed Statement of Fact and the submissions of the parties it would appear that this leave of absence was related to the health issues that the complainant described in paragraph 18, above.

20The complainant was cleared by his attending physician to return to work on the 24th of July, 2018, on a trial basis and was to be reassessed after four weeks. This absence was addressed in a one-page correspondence from the complainant’s attending physician, that was forwarded to the employer. The letter, dated July 23, 2018, speaks of the fact that the complainant was “assessed” and was “fit for a trial of return to work effective July 24, 2018”. The Doctor then went on to state that he would reassess the complainant’s situation after a four week trial.

21It is worth noting that there are no further specifics described in the note as to the nature of the complainant’s diagnosis or illness. Nor is there any further reference in a later correspondence from the same Doctor, dated August 23, 2018, nearly one month after the incident. In that note the Doctor advises that the complainant is unable to perform “regular duties due to a medical illness.”

22However, on the 25th of July, which represented the complainant’s first scheduled work day he advised then Superintendent Kent Milligan as to his on-going health issues and, further, requested that he be removed from “an inmate facing role” at that time. This request was not acted upon by Superintendent Milligan.

23As mentioned above, the incident described in paragraphs 14 through 18, above occurred two days later on July 27, 2018.

24The parties acknowledge that the complainant, in his Form-1 Application, explained his behaviour as follows:

“At the beginning of my shift, I became extremely frustrated and angry with the manner in which daily operations were being conducted and how deficiencies in such had become acceptable. In particular, regular shortages in the complement of Correctional Officers and Sergeants had left the Institution operating in what I felt was dangerous circumstances.”

25Following the July 27, 2018, incident the employer initiated an investigation that culminated in the scheduling of an “allegation meeting” on September 5, 2018. The Complainant was invited to attend and was accompanied by a colleague. The notes of the meeting were transcribed and are attached to the Agreed Statement of Fact.

26At the meeting the employer set out the misconduct that the complainant was said to have engaged in on the evening of July 27, 2018. The complainant was alleged to have committed two workplace infractions; the first being the damage to the property, namely the damage to the computer monitors, and the second being a violation of the “Code of Conduct and Professionalism” (the “COCAP”) and the “Respectful Workplace Policy”. As mentioned above, both the COCAP and Respectful Workplace Policy were provided to the Board for review and consideration.

27As further set out in the Agreed Statement of Fact the complainant admitted to the property damage. He stated that he believed that he was under a significant amount of stress and that others in management had failed to support him in resolving workplace issues. The Complainant was particularly upset with staffing levels and other decisions which he believed were not being made in the best interest of “front line management”.

28With respect to the allegations surrounding the breach of the COCAP and the Respectful Workplace Policy the Agreed Statement of Fact reflect that the parties failed to resolve the issues in dispute with respect to their alleged breach by the complainant.

29The discussion surrounding these issues appears to have escalated into a rather terse exchange between the complainant and Superintendent Milligan, which may or may not have factored into the ultimate penalty rendered against the complainant. The meeting notes suggest that the complainant was upset that the allegation meeting took several days to take place and, secondly, that the complainant appeared unclear and upset about the allegations surrounding his alleged breach of the workplace policies. Finally, the notes reflect rather “sharp” responses from Superintendent Milligan directed toward the complainant as the meeting concluded. These comments were related to the complainant’s enquiry as to what policies he had allegedly violated on July 27, 2018.

30On October 15, 2018, the complainant was advised by the employer that a three day suspension had been imposed. In the two page correspondence signed by Superintendent Milligan he notes that while the complainant has accepted responsibility for the damage to the computer monitors his response to the allegations was “aggressive in nature”.

31While the complainant continued to work immediately after the incident he went on periodic medical leaves of absence throughout the period of August 2018 through January 2019. This includes the following:

Medical leave: August 22, 2018 - August 27, 2018

Medical leave: August 27, 2018 - September 1, 2018

Medical accommodation: Remove from Inmate Facing Role October 4, 2018

Medical Leave: November 28, 2018 - January 7, 2019

32It is worth noting that the complainant also received a leave of absence to pursue his service with the Canadian Armed Forces from September 17 until October 4, 2018.

33In addition on March 13, 2019, the complainant was formally diagnosed with Post Traumatic Stress Disorder, (“PTSD”). The report was produced by a Doctor of Psychology that had commenced treating the complainant. According to the Agreed Statement of Facts, at paragraph 23, the diagnosis was related to the complainant's work experience at the TDC. The date of the injury is said to be June 28, 2018. There are other WSIB reports attached to the Agreed Statement of Fact, authored by the complainant's attending physician and his colleagues that support this diagnosis.

34With respect to the PTSD diagnosis the symptoms attached to the diagnosis are said to be:

a. Traumatic re-experiencing

b. Hypervigilance

c. Anxiety

d. Emotional Dysregulation; and

e. Anger and Irritability

35Although not acknowledged by the employer, Counsel for the complainant asserts that the complainant suffered from PTSD in July 2018 and the symptoms either “contributed to or caused the incident”.

36The complainant continues to seek treatment from his psychologist on a weekly basis. However, it has been determined that he is no longer able to return to work at the TDC out of concern that he may relapse.

POSITIONS OF THE PARTIES

37Counsel for the employer advanced two succinct arguments in support of its position that the complaint of the complainant should be dismissed. The first of these positions had initially been set-out in its Form-2 Response while the other responded to the medical evidence that the complainant attempted to rely upon to mitigate his conduct.

38Simply stated, Counsel submitted that a three day suspension for the unwarranted destruction of employer property was, by all circumstances, a reasonable and fair response. The complainant had failed to demonstrate any remorse for his behaviour and neither had he offered to compensate the Employer for the damage.

39Further, the complainant had carried out this act of “workplace sabotage” in the presence of his co-workers who while not physically harmed or threatened were subjected to inappropriate behaviour from a colleague and someone who held the rank of a superior officer.

40Counsel citing an excerpt from “Canadian Labour Arbitration” (5th Edition) Brown & Beatty, Carswell, defined the Arbitrator’s approach to “workplace sabotage” as follows:

“Arbitrators treat the wilful destruction of an employer’s (or customer’s or co-worker’s) property as one of the most serious acts of misconduct an employee can commit because, as in cases of theft, it raises doubts about whether the employee can be trusted. Unless there are extenuating circumstances, arbitrators are usually not inclined to interfere with an employer’s decision to discharge employees who deliberately set out to vandalize the enterprise for which they work.”

41I note, parenthetically, that that the excerpt referenced and the cases referred to from Canadian Labour Arbitration involved termination matters and not, as is the case before me, a three day suspension.

42Aside from the unjustifiable damage and related monetary damage Counsel submitted that the behaviour of the Complainant breached both the “COCAP” and the “Respectful Workplace Policy.” Both the COCAP and the Respectful Workplace Policy reference the requirement for an employee to demonstrate appropriate behaviour at the workplace and the potential consequences for an employee if they breach the standards set out in either or both policies.

43Secondly, and with respect to the complainant’s medical issues, Counsel submitted that both the timing and totality of the medical evidence submitted by the complainant did not meet the test set out in the accompanying authorities that would, in effect, excuse the complainant’s behaviour as “non-culpable”.

44Counsel submitted that the medical evidence established by the Agreed Statement of Fact simply represented that the complainant was aware that he was experiencing changes in his mental health prior to the July 27, 2018 incident.

45The note from the complainant’s attending physician, dated July 24, 2018, was brief and provided no insight into the medical issues that were later articulated in the opinion of the Psychologist. Counsel suggested that the authorities referred to below create a very “high bar” for an adjudicator to review employee misconduct in the absence of previously produced and indisputable medical evidence.

46Counsel provided Bell Canada v Unifor, Local 43, 2016 ONSC 3350, 2016 CarswellOnt 10421 (Div Ct.), for consideration. This decision of the Ontario Divisional Court involved a grievor whose termination for theft was initially overturned by an arbitrator on the mitigating grounds that he had been suffering from PTSD at the time he committed the workplace offenses. In quashing the decision of the arbitrator, the Court stated that there must be a nexus between the medical diagnosis of PTSD and the employee misconduct that resulted in the discipline. To have a diagnosis as one of a potential number of mitigating factors is not enough to excuse the behaviour of the grievor or, in this case, the Complainant.

47Counsel argued that the matter before the Board mirrored that in “Bell Canada” in that a clear line cannot be drawn between a diagnosis of PTSD and the misconduct of the complainant. Further, the medical evidence before either the employer at the time of the misconduct or this hearing does not meet the rather “high bar” of review that the Divisional Court articulated in “Bell Canada”.

48Counsel further submitted Toronto (City) and CUPE Local 79 (Villar), Re, 2014 CarswellOnt 448 {2014} O.L.A.A. No. 16 (Ont. Arb) (Goodfellow) for my review. In that matter the grievor was terminated for chronic absenteeism that the bargaining agent and grievor attributed to a diagnosis of depression. While there was a finding that the grievor in that case did in fact suffer from depression at the time that discipline and discharge was imposed, Arbitrator Goodfellow noted that the grievor provided medical evidence of substance only after his employment was terminated. The medical supplied to the employer before was brief and devoid of symptoms and any long term prognosis for care.

49In upholding the termination Arbitrator Goodfellow stated that the medical evidence was unlikely to assist in conclusively determining that the depression caused the Greivor’s behaviour. Instead, at best, it was a contributing factor. Employer Counsel argued that this reflected the narrative of the factual situation before the Board in this matter.

50Counsel further submitted the decision of Arbitrator Dissanayake in Boise Cascade Canada Ltd. and C.P.U., Loc., 306, Re 1991 CarswellOnt 6434 for review. The grievance involved the termination of a long-term employee for alleged workplace sabotage.

51At the time of the event the grievor was alleged to have been suffering from a diagnosed case of depression. However, the Arbitrator found that even if the Doctor had testified the physician would not have been able to draw a nexus between the diagnosis and the act of sabotage. In reinstating the grievor the Arbitrator looked to his long-term seniority, his discipline-free record and concluded that the offence was unlikely to be committed again.

52The same principles with respect to the “nexus between the diagnosis and misconduct” were applied in the case of “Sifto Canada Corp v C.E.P., Local 16-0, 2010 CarswellOnt 9228, 200 L.A.C. (4th) 305 (Ont Arb) (Luborsky).”

53Counsel also provided “A.U.P.E. v Lethbridge Community College 2004 SCC 28, 2004 CarswellAlta 533 (Alta Arb).”

54In summary, Counsel submitted that the misconduct of the complainant on July 28, 2018, the destruction of the computer monitor and the general disruption in the workplace that resulted, were sufficient to warrant a three day suspension. In the submission of Counsel, “the complainant could easily have received a greater suspension up to and including termination”. In the further submission of Counsel whatever mitigating factors the complainant could offer, for example the medical evidence of a PTSD diagnosis, would only assist in partially explaining his behaviour on the day in question and could not exonerate him of all culpability.

55Counsel submitted that, as a starting point, the Board should take into account the state of mind of the complainant at the time of the incident. Specifically, was the complainant solely responsible for his behaviour or did certain mitigating factors exist that were known to the employer that would mitigate against a strong disciplinary response. Citing again an excerpt from “Canadian Labour Arbitration'' Counsel submitted that the following should be considered:

“Premeditated and/or persistent wrongdoing is always regarded as more culpable than momentary lapses and those that lack a malicious intent.”

Further:

“However, and regardless of which approach is adopted, the outcome of such cases is strongly affected by the degree of the addiction and/or affliction and the extent to which the employee has been able to act intentionally and control his or her own behaviour.”

56Here the complainant had no history of workplace discipline issues. Counsel conceded that there was a request some two days before by the Complainant to alter his workplace duties to avoid interaction with inmates and that he had provided a short yet inconclusive note to management on July 24, 2018, but neither of these provided the Employer with the requisite information that would have enabled them to assist the complainant.

57Finally, Counsel noted that the complainant failed to demonstrate any remorse at the allegation meeting and in fact failed to “take any responsibility for his actions”. This, in the view of Counsel, acted as an aggravating fact in the ultimate decision to impose the three day suspension. Counsel submitted that while the complainant may have genuinely been upset with the working conditions, specifically the staff ratios, he knew or should have known that he was not to be afforded the option of destroying the Employer’s property as a means of displaying his displeasure.

58In conclusion Counsel submitted that the penalty was, given the behaviour of the complainant, his lack of remorse and the lack of a nexus between his actions and his PTSD diagnosis, fair and reasonable. As a result, Counsel urged the Board to uphold the discipline and dismiss the complaint in its entirety.

59Counsel for the complainant argued that the complainant has been denied procedural fairness and that the Employer failed to properly take into consideration his client’s medical diagnosis when imposing discipline. Counsel suggests that the PTSD is a significant mitigating factor that was overlooked by the Employer.

60With respect to the issue of procedural fairness Counsel directed me to the content of the allegation interview of October 15, 2018. In particular he raised the fact that the complainant asked Superintendent Milligan on at least two occasions for information or clarification as to what particular sections of the COCAP and/or Respectful Workplace Policy had been breached.

61Counsel directed my attention to the interview notes that suggest that Superintendent Milligan declined to offer any specific particulars. For example, with respect to the complainant’s final request for clarification Superintendent Milligan allegedly advised him that “you can find out through the grievance process”.

62Counsel submitted that a basic principle of procedural fairness includes the right to know the case that you must meet and the allegations that are made against you. This, Counsel submits, was resolved in the Board’s decision in “Ihasz v Ontario (Community Safety and Corrections Services), 2015, CanLII 67987 (ONPSGB).”

63Counsel cited both the “Bell Canada” and “City of Toronto'' decisions, discussed above. With respect to the “Bell Canada'' decision, Counsel submitted that the factual basis was distinguishable on the grounds that in that decision the relationship between the grievor’s PTSD diagnosis and his misconduct was tenuous, at best. In the matter before the Board the behavior of the complainant “fits squarely with his disability”.

64With respect to the decision of Arbitrator Goodfellow in the “City of Toronto” decision Counsel found it of assistance in that the Arbitrator, at paragraph 25, stated in response to the question of how should decision makers respond to various situations where actions and behaviours must be weighed against one another that:

“Perhaps not surprisingly, there appears to be no “one size fits all” answer to these questions. Different arbitrators have taken different approaches, and that is in doubt at least in part due to the varieties of behaviour sought to be explained.”

65In the submission of Counsel enough medical evidence existed for the Employer to understand the Complainant’s behaviour. In the alternative, Counsel now invited the Board to review the medical evidence and conclude that mitigating circumstances existed thus necessitating the removal of the penalty.

66Counsel further directed my attention to the complainant’s “WSIB Community Mental Health Program Assessment Form” that was completed by the Psychologist on or about March 15, 2019. This form along with other similar forms completed in 2018 and 2019 divulged, in the opinion of Counsel, the complainant’s PTSD diagnosis and its direct relationship to the workplace.

67Throughout his submissions Counsel returned to the undisputed evidence that Superintendent Milligan was aware or should have been aware of the complainant’s mental health status commencing as early as two working days before the incident. Counsel pointed to the complainant’s request for a change in shift duties which was outright rejected by Superintendent Milligan. Counsel for the complainant submitted that Superintendent Milligan could have prevented this from happening had he made any substantive or meaningful enquiries.

68Superintendent Milligan, in the submission of Counsel, failed to examine the situation which would have provided more insight into the complainant’s deteriorating health issues. Had he taken the time to review the complainant’s situation by, for example, interviewing the complainant rather than confronting him at the allegation meeting, he may have been able to draw a link between the non-culpable behaviour of the complainant on July 27, 2018 and his PTSD diagnosis.

69Counsel reiterated the position that Superintendent Milligan was made aware of the complainant’s struggles before the July 27, 2018 incident when the complainant asked for modified work duties. It was the evidence of the complainant that the Superintendent rejected the request without making any enquiries as to what gave rise to the request.

70In the view of Counsel the mitigating circumstances, in this case the health issues of the complainant, were of paramount importance in explaining the behaviour of the Complainant on July 27, 2018. Counsel recalled that the complainant had identified that he believed that certain “changes'' were occurring to his personality in the six to seven months preceding the destruction of the computer screen. These included a number of symptoms that were consistent with a diagnosis of PTSD.

71In summary, Counsel submitted that the employer was or should have been aware of the health situation of the complainant before, during and after the incident of July 27, 2018. With such knowledge and insight the employer’s response to the incident should have been one that focused on assisting the complainant with his health issues rather than the imposition of discipline.

72With respect to the relevance and application of mitigating factors Counsel submitted the following authorities for consideration: Hardy v Ontario (Ministry of Health)), 1997 CanLII 10280 (ON PSGB); Potter v Ontario (Community Safety and Correctional Services), 2018 CanLII 102749 (ON PSGB); and Keating v Ontario (Community Safety and Correction Services), 2009 CanLII 15648 (ON PSGB).

DECISION

73For the following reasons I dismiss the complaint.

74Similar to the findings of Arbitrator Goodfellow in the “City of Toronto'' and Arbitrator Dissanayake in “Boise Cascade” I accept the complainant's evidence that he has and does suffer from a diagnosis of PTSD. The documented evidence from his psychologist and his associates is clear and unequivocal and serves to confirm the earlier concerns that the complainant believed he was experiencing early in 2018.

75These “changes in personality” continued and manifested themselves resulting in the complainant taking a leave of absence in early July, 2018. This was initiated when the complainant found himself “uncharacteristically upset” when he discovered his energy drink had been removed from the staff fridge. He returned to work on July 24th, 2018, on a trial basis and with a request to have his work duties modified.

76Secondly, there is no doubt that the employer had “limited” clinical knowledge of the complainant's challenging health status following the incident and concluding with the investigation and allegation meeting process on October 15, 2018.

77Further, the meeting notes from the September 5, 2018 allegation meeting and the October 15, 2018 disciplinary meeting, provide further insight that the employer and the complainant did not specifically address the health of the complainant. An objective review of the notes reveal a fractious, confrontational atmosphere from the commencement of the meetings to their conclusion.

78In summary, I conclude that the employer’s awareness of the complainant’s health situation up to the imposition of the discipline was limited to the brief notes that they had received from the complainant’s attending physician and comments made by the complainant during the course of the allegation and discipline meetings.

79I first turn to the complainant’s submission that he was denied “procedural fairness”.

80I disagree with the submissions of Counsel for the complainant that he was denied “procedural fairness”. Firstly, based on the Agreed Statement of Facts there is no evidence before me that suggests that the time that it took the employer to complete its investigation into the incident was prejudicial to the complainant. The evidence does not support the complainant’s suggestion that the employer took an extraordinary amount of time in completing the investigation as he alleged at the allegation and disciplinary meetings. It is clear from the evidence that the employer did not delay in embarking upon the investigation. Further, there is no evidence that would suggest that it had decided to put the July 28, 2018 incident behind them or had otherwise absolved the complainant of his misconduct. The time between the incident and when the complainant was notified as to the scheduling of the allegation meeting was thirty-four days. This is, in the opinion of the Board, represents a reasonable period for the investigation to conclude its business.

81Commencing with the August 31, 2018 correspondence notifying the complainant of an upcoming allegation meeting the employer put the complainant on notice as to the purpose of the meeting. Specifically, the correspondence contained two specific allegations of misconduct against the complainant:

“1. You damaged Ministry property on July 22, 2018.

2. Through your actions on July 27, 2018, you violated COCAP and the Respectful Workplace policies.”

82The notes from the September 5, 2018 meeting reveal the complainant acknowledged damaging the property but seemed more intent on protesting the length of time that had elapsed from the incident until the allegation meeting. The complainant also asserted that he was unaware of what particulars of the COCAP and other workplace policies had been violated by his behaviour on July 28, 2018.

83The employer’s response to the meeting was in their October 15, 2018, correspondence to the complainant in which they summarized the allegations against the complainant and imposed the three day suspension.

84This correspondence was provided to the complainant at a meeting with management on the same day. By all accounts the meeting was brief and the tension between the complainant and Superintendent Milligan was notable. As was the case in the meeting of September 5, 2018, Superintendent Milligan did not respond to the complainant’s enquiry as to what specific elements of the COCAP and other workplace policies had been violated.

85Counsel has submitted that Superintendent Milligan’s lack of response to the complainant’s enquiries about the specific breach of the COCAP and other workplace policies should be interpreted as a “denial of procedural fairness”. I disagree. In an ideal situation Superintendent Milligan would have provided the complainant with the particulars of the breach of the policies. Having read the notes of the meetings, however, it is clear that the discussions quickly escalated to the point where the complainant terminated the October 5, 2018, meeting prematurely.

86The complainant, by his own admission at the meetings, acknowledged that he had caused the unwarranted damage to the computer monitors and should have appreciated that this conduct constituted a breach of a number of workplace policies.

87Secondly, Counsel, in citing Ihasz, above, submits that the behaviour of the employer in this matter has somehow prevented the complainant from knowing the case against it and having the appropriate opportunity to respond. Following the meetings and the imposition of discipline the complainant proceeded to file a robust grievance with the employer, file relevant medical evidence with the employer, and commenced these proceedings. It is my conclusion that the complainant is and has been adequately aware of the case before him and has responded to the discipline with thorough and comprehensive submissions.

88Finally, even if I was to determine that the employer’s failure to provide specific examples of the breach of the COCAP and other workplace policies constituted a breach of procedural fairness it is my opinion that this has been cured prior to and during the hearing process. The parties have engaged in numerous discussions and exchanged documents and concluded a comprehensive Agreed Statement of Fact. Again, based on the submissions and evidence before me I cannot conclude that the complainant has not been afforded procedural fairness.

89Having disposed of that issue I now turn to examining the complainant’s conduct. It is a straightforward finding of fact the complainant did embark on an act at the workplace that resulted in the destruction of the employer’s property on the evening of July 27, 2018. The question arises what is the appropriate response?

90The authorities are flooded with decisions where employers have terminated employees for acts of workplace vandalism or sabotage. In most instances adjudicators, subject to extraordinary circumstances such as the long-term service of the employee, have upheld these decisions. To paraphrase the excerpt from “Canadian Labour Arbitration’ at paragraph 45, above, destruction of workplace property is viewed alongside theft as one if not the most serious acts of workplace misconduct.

91Further, I agree, objectively, with Counsel for the employer, that given the circumstances and wide array of penalties available, a three (3) day suspension could be viewed as lenient. Given that the damage was significant and tangible and committed in front of others in what could be interpreted as a fit of rage the penalty could have been something far more substantial.

92Further, the fact that the complainant enjoys a position of authority and the incident was witnessed by his peers in management makes his conduct even more inexcusable. It is trite to state that the standard of behaviour placed upon those in positions of authority is higher than, for example, a member of the bargaining unit, given the example it sets for the workforce.

93That said, given the lack of any disciplinary history of the complainant and the context in which this situation arose I am not prepared to describe or otherwise elevate his behaviour to that of a “workplace saboteur”. The complainant was on a series of leaves following the incident and the October 5, 2018, imposition of discipline and is now on an extended leave of absence. Although the complainant’s return to work in the future is uncertain I doubt that in the event he does return such behaviour will be repeated.

94The only issue remaining to be disposed of is whether the complainant’s PTSD diagnosis mitigates against the discipline imposed upon him by the employer?

95On this matter I find myself guided by the findings of the Divisional Court in the “Bell Canada” decision and the analysis and conclusions reached by Arbitrator Goodfellow.

96To reiterate, while I do not wish to be seen to doubt the Complainant’s health situation in 2018 and/or the efficacy of the diagnosis that followed in 2019 by the psychologist, it is difficult, if not impossible, to draw a “straight line” between the PTSD symptoms and diagnosis and his behaviour on the evening of July 28, 2018.

97I agree with the analysis provided by Arbitrator Goodfellow in the Toronto (City) and CUPE Local 79 decision. It acknowledges that each dispute involving facts such as those before the Board in this matter should be determined on a “case by case” basis.

98Arbitrator Goodfellow upheld the termination of the griever's employment notwithstanding that he determined that the grievor was suffering from depression at the time discipline and discharge was imposed. Similar to the situation before this Board the grievor had provided medical evidence in the form of a brief note from his attending physician prior to his termination. Additional and more thorough medical evidence was provided to the employer some eight days after the termination which served to confirm a diagnosis of depression. This included a diagnosis that the grievor had suffered from depression during most of the employment relationship.

99However, Arbitrator Goodfellow was unpersuaded that the existence of the medical diagnosis was sufficient to mitigate the conduct of the grievor. In the absence of a direct relationship between it and the conduct that resulted in the grievor’s termination. At paragraph 24, he concluded that there needed to be “a “causal link”, connection or “nexus” between the established disability and the otherwise disciplinable misconduct.

100The Arbitrator went on to state at paragraph 25 that:

“Perhaps not surprisingly there appears to be no “one size fits all” answer to these questions. Different arbitrators have taken different approaches, and that is in no doubt at least part of the varieties of behaviour sought to be explained. What does appear clear, however, is that there is a distinct arbitral preference for medical evidence that, if not addressing the question directly, at least provides something beyond the basic diagnosis from which that connection can reasonably be drawn. Without such evidence, in my opinion, the Union runs the substantial risk of a finding that the onus has not been met - a risk that increases, not decreases, with the scope and extent of the behaviour that is in issue.”

101The Arbitrator then went on to determine that the medical evidence before him provided only the most “basic of diagnoses” and, moreover, no nexus between the diagnosis and the conduct had been sufficiently established.

102I find that there is a lack of “nexus” or “causal link” between the diagnosis of PTSD and the behaviour of the complainant on July 28, 2018. The initial medical notes from the complainant’s attending physician in July and August 2018 were silent with respect to a formal diagnosis. It was not until March 13, 2019, when the complainant was formally diagnosed with PTSD by his psychologist some eight months after the incident. He has continued to receive treatment for this diagnosis. The voluminous reports that were subsequently generated were authored by the psychologist and his associates on February 14, 2020, some nineteen months after the incident.

103While these medical reports and the Agreed Statement of Fact acknowledge that the complainant suffered from PTSD at the time of the incident they do not purport to directly link his behaviour on July 27, 2018, to the diagnosis. Therefore, I am left to conclude that there is insufficient evidence before the Board that supports a conclusion that there is a connection between the diagnosis and the complainant’s behaviour in July, 2018 that might excuse or otherwise mitigate against the discipline imposed by the employer upon the complainant. As was the situation in the decision of Arbitrator Goodfellow the post-discipline medical evidence before the Board, while serving to describe the complainant’s symptoms cannot be interpreted as explaining or excusing the incident.

104Having arrived at this conclusion I am left to conclude that based on the Agreed Statement of Fact and the accompanying documents it would be inappropriate to excuse the conduct of the Complainant and, as a result the three day suspension is appropriate.

105For all of the above reasons the complaint is dismissed.

106I do wish to thank both Counsel for their professionalism and assistance in finding a reasonable and efficient path to conclude this matter. Their ability to overcome the adversity that the past several months have posed is to their credit.