PSGB# P-2021-0974; P-2022-1841

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Stanley

Complainant

• and -

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

Employer

BEFORE

Brian Smeenk

Chair

FOR THE COMPLAINANT

Sandeep Bandhu Brickhouse Legal Services Licensed Paralegal

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

Complainant: September 2, 2022 Employer: October 7, 2022

DECISION

1The Complainant, Bridgette Stanley, was employed as a Sergeant at the Employer’s Toronto South Detention Centre (“TSDC:). She was given a 20-day suspension for attendance and punctuality-related misconduct by letter dated June 25, 2021. File # P-2021-0974 is her application under The Public Service of Ontario Act, 2006, S.O 2006, c.35, Sched. A (“the PSOA”) challenging that suspension. She was then terminated by letter dated March 17, 2022 for similar misconduct. File # P-2022-1841 is her application challenging the termination of her employment.

2Ms. Stanley filed a preliminary motion asserting that both the 20-day suspension and the termination should be voided by the Board due to the Employer’s delay in taking these disciplinary steps. If the discipline in question is not voided by the Board, Ms. Stanley seeks in the alternative “any other remedy deemed appropriate by the Board.” The Employer opposes the motion.

3This decision deals with that preliminary motion.

4For the reasons that follow, I have concluded that the Employer’s allegations regarding lateness, leaving early and being absent during or for a shift without approval (the “Culpable Attendance Allegations”) are to be set aside for undue delay and they do not properly form part of the Employer’s cause for either the suspension or the discharge. However, my decision regarding the remaining allegations is reserved until the merits of the case are heard and determined.

A. Background: The Discipline & The Preliminary Motion

5The following facts are, for the most part, not in dispute. Where relevant facts are in dispute, I will outline the parties’ allegations.

6Ms. Stanley was hired as a Correctional Officer on or about July 22, 2002. She transferred to TSDC effective December 19, 2013. She became a full-time Sergeant there effective July 18, 2016. As a Sergeant, she is responsible for the supervision and management of correctional staff. She, in turn, reports to Staff Sergeants and others above that level.

7TSDC is a maximum-security correctional facility for adult male inmates serving sentences of less than 2 years; and for offenders who have been remanded into custody while awaiting trial. It is the largest jail in Ontario.

The Suspension

8The Suspension was imposed as the result of a workplace investigation into attendance and performance-related issues that the Employer states took place from 2020 to 2021. In 2020 the Employer was investigating and addressing attendance issues of four management employees, including Ms. Stanley.

9After the investigations, Ms. Stanley was advised of allegations against her by letters dated March 29 and May 17, 2021. The first letter included a list of 95 specific incidents of concern between June1, 2020 and January 20, 2021. The second letter included a list of a further 47 incidents of concern between February 17 and April 21, 2021.

10There were meetings after each letter at which Ms. Stanley was provided an opportunity to respond to the Employer’s allegations and to provide additional information to substantiate or justify her behaviour on the dates in question. On or about June 1, 2021, Ms. Stanley provided two (2) written responses.

11The suspension was imposed by way of a letter dated June 25, 2021. While concluding that the evidence regarding 10 of the 142 occasions was "inconclusive" it found that, "all other allegations are substantiated." It stated that the Employer had determined that Ms. Stanley engaged in the following misconduct on various occasions (not all of these descriptions apply to every occasion):

a. Arrived late for scheduled shifts.

b. Left during her shift and was absent without management approval.

c. Left before the end of her scheduled shift without management approval.

d. Falsified her attendance record and/or failed to record her actual arrival/departure time and any extended absences.

e. Was absent without approved leave.

f. Engaged in time theft, time-shifting without approval, improper behaviour, and/or conduct unbecoming of a manager.

g. Falsified her Duty Notebook and/or failed to record her actual on and off-duty times.

h. Failed to adhere to TSDC COVID19 Screening Procedures by improperly entering and exiting the institution.

i. Failed to use her access card to properly enter and exit the institution through designated smart lanes.

j. Failed to maintain proper storage of her Duty Notebook.

12In addition to the 20-day suspension, Ms. Stanley was required to repay amounts she improperly claimed by falsifying the attendance record (i.e., the Sign In/Sign Out Sheets). More specifically, the Employer determined that there was a discrepancy of 87 hours and 30 minutes to be repaid.

13In her Complaint before the Board, Ms. Stanley states that the suspension is without just cause or in the alternative is excessive and unreasonable. She further asserts that the set-off or deduction from wages effected to reimburse the Employer is improper for various reasons, including being contrary to the Employment Standards Act, 2000, S.O. 2000, c.41 as am (“the ESA”) or the authority of the Employer under the PSOA. She further asserts that the suspension constitutes discrimination and reprisal based on race, disability and family status, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as am. (“the Code”). This is based on the allegation that the suspension came about immediately following and because of a complaint she had filed under the Employer’s Workplace Discrimination and Harassment Policy (“WDHP”).

The Discharge

14In January 2022 the Employer undertook a further investigation of Ms. Stanley’s attendance from October 2021 to January 2022. Ms. Stanley was not informed of it at that time.

15After this investigation, by way of a letter dated February 23, 2022, Ms. Stanley was advised she was to attend an allegation meeting. The meeting was scheduled to be held on February 25, 2022. The letter included a list of specific dates and times for 70 separate occasions between October 9, 2021 and January 24, 2022. Regarding many of these occasions, the Employer’s allegation was limited to a failure to record any entries in her Duty Notebook. It was alleged that on other occasions she arrived at work late or left before the end of her scheduled shift, without any pay claim discrepancy being alleged. However, there are several occasions listed when there is an alleged lateness or early departure along with a discrepancy between her actual attendance times and the times she signed in or out.

16At the allegation meeting on February 25, 2022, Ms. Stanley was asked to explain her conduct on the dates identified in the letter. She provided various explanations. The Employer concluded that the explanations were insufficient.

17In the result, the Employer terminated Ms. Stanley by letter dated March 17, 2022. In that letter, it states that all of the original allegations outlined in the February 23 letter were substantiated, i.e., that on the numerous occasions listed she engaged in one or more of the following kinds of misconduct:

a. arrived late, left early without approval, and/or falsified the attendance record (the Sign-in Sheets);

b. otherwise engaged in time theft, time-shifting without approval;

c. failed to make timely and detailed entries in her Duty Notebook; and

d. failed to enter/exit the institution through the authorized entrances/exits and in accordance with TSDC COVID19 Screening Procedures.

The Complainant’s Motion to Void Discipline for Delay

18Ms. Stanley submits that both the suspension and the termination should be declared void due to the Employer’s delay in taking those disciplinary steps. She argues that the delay in imposing discipline was highly prejudicial to her. Her absences from work were either condoned, approved or statutorily protected. The prejudice is both actual and can also be inferred from the facts. The Board cannot, it is argued, remedy the prejudice caused by lost memory and the Employer’s failure to act promptly.

19By way of legal support for her position, Ms. Stanley relies on the following authorities, all of which I have reviewed: A.B.G.W.I.U. v. AFG Industries Ltd. 1998 CanLII 30077 (ON LA), 1998 CarswellOnt 5647, [1998] O.L.A.A (“AFG Industries”); Air Canada v. C.A.L.E.A. 1981 CanLII 4504 (CA LA), 1981 CarswellNat 975 (“Air Canada”); Manitoba Pool Elevators Brandon Stockyards v. U.F.C.W., Local 832 1993 CanLII 16667 (MB LA), 1993 CarswellMan 580 (“Manitoba Pool Elevators)”; Nova Scotia Community College and NSTU (Marshall), Re 2004 CarswellNS 725; OPSEU and Ontario (Ministry of the Solicitor General) (Frater), Re 2020 CarswellOnt 1226; OPSEU (Sammy et al) v MCSCS 2002 CanLII 45769 (ON GSB); Farwest Transit Services Inc. v. A.T.U., Local 1722 2003 CarswellBC 3520 (“Farwest”); North York (Borough) v. C.U.P.E., Local 373 1979 CarswellOnt 930; Cain v. Roluf's Ltd. 1998 CarswellOnt 835; ESA, s. 50.1; and Infectious Disease Emergency Leave Regulation, O. Reg. 228/20, ss. 1 and 3.

20The Employer submits that there was no delay in proceeding with the suspension. The time taken to complete the comprehensive, thorough, forensic-style investigations was necessary and appropriate in all the circumstances. Specifically, the behaviour in issue was not an isolated incident; rather, it was a repeated, pattern of conduct that required a detailed, retroactive assessment of Ms. Stanley’s attendance to determine whether discipline was warranted. The Employer submits that the delay motion is more properly dealt with as part of the hearing on the merits.

21In support of its position, the Employer cites the following authorities, all of which I have reviewed: Brown, D.J.M., Beatty, D. M., & Beatty, A.J. (Eds.). (2019). Canadian Labour Arbitration, 5th ed at 7:7 (“Brown & Beatty”); Barnes and Ontario (Solicitor General) (June 8, 2022), PSGB No P-2018-3802, (Tremayne) at para. 70-71 (“Barnes”); OPSEU (White) and Ontario (Solicitor General) (August 26, 2020), GSB No 2012-0362 et al, (Petryshen) at paragraph 34 (“White”); OPSEU (Rodrigues) and Ontario (Labour) (April 11, 2007), GSB No 2005-1927 et al, (Brown) at page 20 (“Rodrigues”); Bonacci v. Ministry of the Solicitor General & Correctional Services (March 19, 1997), GSB No 1996-1923 (Dissanayake) at pages 7-8 (“Bonacci”); O.S.S.T.F. v Thames Valley District School Board, 2012 CarswellOnt 8676 (Cummings) at paragraph 12 (“Thames Valley”); Toronto Transit Commission and ATU, Local 113 (Christie) (March 21, 2022), 2022 CarswellOnt 3783 (McNamee) at paragraph 30 (“Toronto Transit”).

B. Legal Framework

22The parties are basically in agreement regarding the applicable legal principles.

23In considering whether discipline should be voided for reasons of undue delay, there are three (3) key criteria, none of which are necessarily determinative:

a. The length of the delay;

b. The reasons for the delay; and

c. The prejudicial effect of the delay.

24Whether delay will void discipline will depend on the facts in each case. The mere passage of time, will not necessarily void discipline. It is important to consider the reasons for the delay because the delay may be reasonable in the circumstances. Some investigations naturally take longer than others. The nature of the conduct in question and the kind of workplace involved are relevant factors. Arbitrators have allowed employers to take a reasonable amount of time to investigate a situation and assure themselves that the employee has done something that warrants discipline. It is generally inappropriate to count any period before the employer knew or ought reasonably to have known about the misconduct. An employer cannot be held responsible for delay in a period when it had no basis to act. See for example the following authorities, cited above: Brown & Beatty, S 7:7; Barnes at para. 70-71; White at paragraph 34; and Thames Valley at para. 12.

25For an adjudicator to void discipline for delay, prejudice to the employee arising from the delay must be shown. However, the prejudice may be actual or inherent in the circumstances. This most often arises when the ability to defend against the allegations is compromised by the delay. In this regard, arbitrators will consider whether the allegations relate to routine activities, which an employee might have difficulty recalling, versus unusual or extraordinary events, which the employee is more likely to be able to recall the latter. See for example the following authorities cited above: AFG Industries at para. 23; Farwest Transit at para. 30; and White at para. 34.

26Prejudice to the employee may also arise if the employer is found to have condoned the behaviour. The test is whether the employee was reasonably led to conclude that their conduct had been forgiven or condoned. See for example the following authorities cited above: White, at para. 34; Rodrigues, at p. 20; Bonaci, at pp. 7-8 and Manitoba Pool Elevators at para. 4.

27This Board recently reviewed and applied this body of case law in Barnes at para. 69 – 72 as follows:

69It is generally accepted that if an employer is going to impose discipline, it must be reasonably expeditious in doing so. The “clock” starts once an employer has information about an employee’s conduct that could lead to discipline. Excessive delay in imposing discipline can render the discipline void. While the overall burden of establishing that the delay alone justifies setting aside the discipline remains with the party alleging excessive delay, the employer is faced with an evidentiary onus to account for and explain the delay.

70The basis for many of the rulings against untimely discipline is summarized in A.B.G.W.I.U. v. AFG Industries Ltd. (Re), 1998 CanLII 30077 (ON LA) (Herlich). In deciding whether there has been an unreasonable delay, Arbitrator Herlich lists three considerations: the length of the delay, the reasons for the delay, and the prejudicial effect of the delay. A delay measured in months will almost always trigger scrutiny. As to the reasons for the delay, some amount of delay may be justified if an employer is simply unaware of the employee’s conduct or does not have all of the facts necessary to decide whether discipline is an appropriate response. Prejudice most commonly arises when the ability to defend against allegations is compromised due to fading memories, lost opportunity to gather exculpatory evidence, and similar considerations.

71Arbitrator Herlich hastened to add that none of these factors is necessarily determinative and that prejudice resulting from delay can be inferred or presumed. Confronting an employee many months later with an allegation about a matter to which the employee may have attached no significance at the time or an allegation about a routine function that an employee regularly performs has often been found to be inherently prejudicial. Another way of framing the principles underlying the rule against delay is that discipline must be imposed within a reasonable time, and what is reasonable depends entirely on the facts in a given situation.

72Other factors have been proposed as to why discipline may be void if an employer waits too long. These include procedural fairness (see, for example, Metropolitan Toronto (Municipality) v. C.U.P.E., Local 79 (Dalton) (Re), 1999 CanLII 35953 (ON LA) (Simmons); OPSEU (White) and Ontario (Ministry of the Solicitor General), 2020 CanLII 63535 (ON GSB); and Chopra v. Canada (Attorney General), 2014 FC 246. Another factor is that if an employer delays imposing discipline, the employee may have assumed that there were no concerns about their conduct. An employer may thus be found to have condoned the behaviour (see Re: Corporation of the Borough of North York and C.U.P.E., Local 373, 1979 CanLII 3935 (ON LA).

28In Barnes, the Board held that a suspension based on incidents that occurred 26 and 19 months, respectively, before the suspension was void due to delay for which there was no reasonable explanation advanced by the Employer.

29On the issue of prejudice to the employee, Vice-Chair Tremayne noted that had the first incident been handled in a more timely manner, the second incident might not have occurred. Sgt. Barnes was deprived of the opportunity to learn from the first incident. He stated the following at para. 86:

86It also stands to reason that if the first incident had been dealt with in a more timely manner, the second incident might not have occurred. Although the incidents were different, they both relate to the proper handling of inmates when they are admitted to or released from an OCDC. Concerns about the working hours in the Records Department and communication protocols between Records staff and A&D were revealed in the first incident, providing an opportunity to reduce the likelihood that problems might arise when dealing with other inmates, such as inmate S. When the Employer delayed its handling of the first incident, it delayed addressing those systemic issues, which prejudiced Sgt. Barnes because it deprived him of the benefit of those changes and, crucially, the opportunity to learn from that experience and improve his performance.

C. First Issue: Should the Suspension be Voided Due to Delay?

Evidence

30The following facts are not in dispute.

31The Employer had sent several memoranda to “All Staff” about attendance record-keeping between 2018 and 2021. One, dated March 22, 2018, was on the subject of “Attendance expectations”. It outlined the Employer’s expectations of attendance for each person’s full scheduled shifts; the need to submit an occurrence report if late; the need for a supervisor’s approval to leave early; and the need to enter and exit the workplace through designated “Smart Lanes”.

32Another memo to “All Staff” dated November 2, 2020 was about “Attendance Register (Signing In and Out)”.

33In addition, in an email dated October 20, 2020, Staff Sergeant J. De Sousa reminded Ms. Stanley, after she'd been late, that she was required to arrive at work on time. In another email dated October 29, 2020, Staff Sergeant E. Borel followed up regarding a meeting they’d had on the same topic of the need to arrive at work on time and their discussion of any accommodation requirements. Ms. Stanley replied to that, saying, "I don't think that this is being dealt with in fair and transparent manner" and "I feel like I am being targeted and singled out". She requested that this treatment, "cease or for everyone to be treated equally."

34As noted above, in 2020 the Employer was investigating and addressing attendance issues of four management employees, including Ms. Stanley. In or around January 12, 2021, Deputy Superintendent (“DS”) Anisa Capener assumed responsibility for the investigation and took further investigative steps.

35This investigation included retrieving and reviewing Ms. Stanley’s electronic swipe card records and retrieving and reviewing the Sign-In Sheets applicable to her.

36Based on the information retrieved, DS Capener identified what she believed were significant discrepancies in Ms. Stanley's sign-in/sign-out times as compared to the electronic swipe card records, in relation to late arrivals, early departures and other absences from the workplace.

37Ms. Stanley had not been informed of this investigation. However, by letter dated March 29, 2021, Ms. Stanley was advised she was to attend an allegation meeting to address these concerns. The notice of meeting included a list of 95 specific dates and times that were in issue, between June 1, 2020 and January 20, 2021.

38The allegation meeting ultimately took place on April 8, 2021. Ms. Stanley was able to address some but not all of the 95 occasions of concern.

39DS Capener then continued her investigation, including determining whether the rationales and explanations offered by Ms. Stanley could be substantiated. In the result, by letter dated May 17, 2021 Ms. Stanley was notified of a second allegation meeting to be held on May 25. This letter identified a further 47 occasions of concern, between February 17, 2021 and April 8, 2021.

40After the allegation meeting on May 25, 2021, Ms. Stanley was provided an opportunity to provide additional information to substantiate or justify her behaviour on the dates in question. On or about June 1, 2021, Ms. Stanley provided two (2) written responses. In those responses, she apologized and provided some information concerning some of the dates/times at issue. She also described, in general terms, the challenges she faced as a single mother with her child-care obligations (she has three children) and their mental health issues during the pandemic.

41The suspension was imposed by way of a letter dated June 25, 2021. While concluding that the evidence regarding 10 of the 142 occasions of concern was “inconclusive”, the letter stated that all other allegations were substantiated. It summarized the various grounds for the suspension as outlined above.

Parties’ Submissions

42Ms. Stanley argues that the context of the events in question is important. She is a single mother of 3 young children. All of the events occurred during the Covid pandemic. The province was under lockdown for much of the time and schools were closed in an unpredictable way. She had to deal with the logistics of getting to work during this exceptional time. She states that she understood that her supervisors, the Staff Sergeants, knew of her predicament and were supportive. She says she had no reason to suspect that the Employer was dissatisfied with her attendance until the first allegation meeting that led to her suspension. This came just after she’d made the WDHP complaint and she alleges the suspension was in reprisal for it.

43Ms. Stanley argues that the Employer’s delay in proceeding with the suspension was unreasonable. She asserts that the total time to discipline, from the start of the investigation sometime in 2020 until her suspension on June 25, 2021 was 12 to 18 months, with the initial set of dates of concern being between June 1, 2020 and January 20, 2021. She argues that the Employer claimed it knew of Ms. Stanley’s problematic behaviour in 2020, yet did not act until June 2021. She asserts that she reported her lateness during the period in question to her superiors, the Staff Sergeants, and they were aware of what was written on her Sign-in Sheets. She alleges that none of them voiced any concern to her.

44The Employer argues that arbitral case law is clear that delay, or the mere passage of time, will not necessarily void discipline. It is important to consider the reasons for any delay because the delay may be reasonable in the circumstances. An investigation of serious allegations should be carried out thoroughly, especially in cases involving a public institution.

45Arbitrators have allowed employers to take a reasonable amount of time to investigate a situation and assure themselves that the employee has done something that warrants discipline. It is argued that, here, the circumstances required the Employer to undertake a thorough investigation and it took a reasonable time to do so.

46The Employer further argues that for an arbitrator to void discipline for delay, prejudice to the employee arising from any delay must also be shown. Ms. Stanley has not been prejudiced by the delay, as she “knew or ought to have known that her behaviour was not condoned.” Permission to engage in the behaviors in question was neither requested nor granted, the Employer asserts.

47In support of the argument that Ms. Stanley knew or ought to know that her behaviours were not condoned, the Employer points to the memorandum to “All Staff” dated Mach 22, 2018 on the subject of “Attendance expectations” that is described above. The Employer also relies on the memo to “All Staff” dated November 2, 2020 regarding “Attendance Register (Signing In and Out)”, described above.

48In addition, in terms of notices to Ms. Stanley herself as to attendance and record-keeping expectatons, the Employer relies on the emails to Ms. Stanley dated October 20, 2020 and October 29, 2020, that are outlined above.

49The Employer further submits that the lack of prejudice is demonstrated by the fact that Ms. Stanley was able to respond to the allegations against her regarding several of the dates. Events such as falsifying sign-in/sign-out sheets are not routine events such as would allow prejudice to be inferred.

Analysis and Decision

50In applying the applicable legal framework to the circumstances that led to the suspension, it is important to consider the various elements of the alleged cause. The application of the law does not, in my view, lead to the same conclusions regarding all categories of the allegations.

51The various elements of the alleged cause for suspension are outlined in paragraph 11, above. They may be categorized as follows:

a. Culpable attendance and punctuality problems: lateness, leaving early and being absent during or for a shift without approval (the “Culpable Attendance Allegations” or “Culpable Attendance Incidents”);

b. Falsification of attendance records and Duty Notebook regarding actual arrival and departure times and absences, including “time-theft” and “time-shifting” without approval (the “Falsification of Records Allegations”);

c. Improper entry/exit of the jail (“the “Entry/Exit Allegations”); and

d. Failure to maintain proper storage of Duty Notebook (the “Notebook Storage Allegations”).

(a) Culpable Attendance Allegations

52Was there an undue delay in acting on the Culpable Attendance Allegations? I find there was.

53The Employer waited about 2 months from the last alleged absence incident (January 15, 2021) and about 9 ½ months from the first absence incident (June 1, 2020) before confronting Ms. Stanley about these issues, concerning the first set of up to 95 such incidents. This was done with the allegation letter of March 15, 2021. After the allegation meeting of April 8, 2021, the Employer then gathered evidence of another 47 such incidents between February 17 and April 8, 2021. She was not confronted with these allegations until receiving the allegation letter dated May 17, 2021. The delay at this second stage, between the alleged misconduct and the notice to Ms. Stanley, was a period of between about 1 ½ to 3 months. It took about another 5 weeks before the Employer issued the suspension letter dated June 25, 2021, when Ms. Stanley was advised of her fate in this regard.

54The delays from the incidents of concern to the date Ms. Stanley was put on notice of the allegations thus range from about 1 ½ month to 9 ½ months, with a further 5 weeks to the date of discipline.

55The Employer submits there was no delay in either investigating or imposing the suspension. It argues that any investigation into attendance issues “necessarily requires a retroactive review over a period of time to determine whether there is a pattern of misconduct.” When DS Carpener’s investigation began on January 12, 2021, there was a mere suspicion of misconduct and a more detailed investigation was required, it argues. The time it took to retrieve and analyze historic records going back to 2020 was reasonable. Ms. Stanley was advised of these concerns in the letters of March 29 and May 17, 2021, which were within a reasonable time of each stage of the investigation. There are no lengthy, unexplained periods of time during the course of these investigations, the Employer argues.

56I do not, however, accept that there was no delay in acting on the Culpable Attendance Allegations. It is not suggested that the Employer's managers were unaware of the late arrivals, early departures, etc. until after the investigations. Ms. Stanley's immediate supervisors had to have known or been in a position to know whether and when she was at work or left work. It has not been suggested otherwise. Their failure to act on her Culpable Attendance Incidents did not "necessitate" a lengthy investigation before something was done. The fact that a lengthy investigation was carried out was a choice made by the Employer, but that does not negate the fact there was a long delay.

57Regarding the reasons for the delay, the mere fact that the Employer wanted to do a thorough investigation does not mean it was reasonable to wait that long before confronting Ms. Stanley about the many occasions of alleged lateness, leaving early, leaving without approval during part of a shift or being absent without leave. Concerns about punctuality and unauthorized absenteeism for all or part of a shift are prime examples of the kinds of misconduct of which employees should promptly be made aware. An appropriate regime of corrective, progressive discipline involving misconduct that is not at the serious end of the spectrum, means that an employee should have a timely opportunity to correct their behaviour before being placed in employment jeopardy. This is why the legal principle of undue delay in discipline was created. While an employer’s reasons for delay may be understandable, the longer it waits the more risk it runs of prejudicing the employee. As the arbitrator noted in Farwest at para. 29 – 31:

29….The evidence suggests that the Employer had good reason to be frustrated with the Grievor's poor work ethic, failure to respond to progressive discipline, etc. However, by deciding not to give him prior notice of the allegations against him, allegations that the Employer knew would almost certainly lead to his dismissal, it ran the risk — a risk that grew greater the longer it took to convene an investigation meeting — of the Grievor simply not recalling what were essentially "routine" matters that occurred long ago.

31 Just as was true in the Canada Post case (above, at page 4), the Employer's reasons for the delay in providing particulars to the Grievor explain, but in no way excuse, that delay. Had the Employer provided him with the details of its concerns as soon as practicable after the supervisor filed his report with the general manager, the Grievor would have recalled the events of each day and would have been able to provide his version of events.

58The Employer relies in part on an email dated October 20, 2020, in which Staff Sergeant J. De Sousa reminded Ms. Stanley, after she’d been late, that she was required to arrive to work on time. In another email dated October 29, 2020, Staff Sergeant E. Borel followed up regarding a meeting they'd had on the same topic of the need to arrive at work on time. These are indeed examples of good processes regarding attendance problems. But, while the Employer argues that this shows that Ms. Stanley knew what was expected of her, it also confirms that her direct supervisors were aware when she was late and were in a position to act on it promptly when they felt it appropriate to do so. The supervisors’ failure to regularly do so is the problem here.

59Such prompt warning and progressive discipline steps were not followed for most or all of the other Culpable Attendance Incidents between June 1, 2020 and April 8, 2021. There is no evidence of any such warnings after October 30, 2020, even though the investigation covered the period until April 8, 2021. A culpable late arrival or an unauthorized departure from work can be subject to discipline immediately. Contrary to the Employer’s submission, there is no need to find evidence of a pattern before taking corrective steps regarding culpable misconduct. Indeed, such an approach negates the expected standard of corrective, progressive discipline. There is thus no reasonable explanation for such delays in addressing the Employer’s concerns.

60The next issue is whether Ms. Stanley was prejudiced by the Employer’s delay in dealing with the Culpable Attendance Allegations. In my view, Ms. Stanley was prejudiced in three ways.

61The first kind of prejudice arises from the fact that some of the Culpable Attendance Allegations pre-date two non-disciplinary warnings given to Ms. Stanley in October 2020. It is unfair for the Employer to now seek to rely on such Allegations about incidents before these warnings. Ms. Stanley would not reasonably expect that she might still be disciplined for prior occasions. In Air Canada, at para. 25 Arbitrator Shime explained why arbitrators generally reject the resurrection of past incidents for which there was no discipline, in support of recent discipline:

25 Difficulties arise in arbitration where the employer attempts to invoke previous or prior non-disciplinary incidents in an attempt to support discipline for a more recent incident. Arbitrators have generally rejected the resurrection of past incidents to support a recent discipline for a number of reasons. First, because it is often difficult as a matter of justice to contest a past incident where the evidence has gone stale as a result of such things as memory or lost records or missing witnesses. Second, where an employer, particularly one that utilizes discipline, does not discipline an employee, the employee is entitled to assume that the mistake or error was of a non-disciplinary nature and that his conduct or actions fell within a reasonable standard. In these situations, the employee is led into a false sense of security about the standard demanded in the particular job.

26 Third, the prior incidents are often rejected on the underlying assumption that their use is part of a "kitchen sink" approach to discipline. That approach is one that seeks to include all past incidents in order to justify discipline for a recent incident. There are a limited number of cases where employers have thrown in everything possible that might have occurred in the past in order to bolster their disciplinary response in a particular situation. The rejection of past incidents by arbitrators thus flows from a skepticism about an approach that at one time considered an incident as non-disciplinary and then suddenly changed. [emphasis added]

62The second kind of prejudice arises from the fact that, when Ms. Stanley allegedly continued the same behaviour after October 2020, she was not put on notice that this was putting her job in jeopardy. She was allowed to climb out on a very long limb, accumulating many further alleged incidents, only to have that limb later cut off by the Employer. This is the kind of condonation that is addressed in the case law.

63Thirdly, it is apparent that the long delay prejudiced Ms. Stanley’s ability to defend herself regarding the many Culpable Attendance Allegations spanning 10 months. According to the Employer, while she was able to respond regarding some of the incidents, she was unable to do so regarding most. That would indicate actual prejudice. In any event, it is also inherent in a delay of that duration, with so many incidents of concern, that an employee would have difficulty remembering the circumstances of each incident. It can be inferred that she would have difficulty remembering or proving why she was late or left work, whether she communicated with any of her superiors about it and, if so, with whom and at what precise time of day. If she had been confronted promptly about each such occasion, she would not have been prejudiced in this way.

64This is the kind of situation that Arbitrator Herlich described in AFG Industries at para. 21:

… Finally, will be a consideration of the prejudicial effect of the delay. This may manifest in various different ways but undoubtedly central to this concern is the effect the delay may have on the ability of the grievor to answer the charges leveled against him. Where the allegation relates to a specific event at a specific time and date, prolonged delay will tend to undermine the grievor's ability to recollect his conduct or even whereabouts at the prescribed time. It can effectively deprive him of the ability to defend himself. The nature of the specific allegations may be a factor as well in the grievor's ability to answer the charges. Where (as in the Air Canada case) the allegation relates to the nuances of one of some 60 daily employee-client conversations, delay may have a disproportionately greater deleterious impact than in other situations.

65In the result, regarding the Culpable Attendance Allegations that led to the suspension, I have concluded that there was undue delay in proceeding with discipline regarding all such incidents between June 2020 and April 2021. These allegations therefore cannot properly form part of the alleged cause for the suspension.

(b) Falsification of Records Allegations

66Regarding the Falsification of Records Allegations, was there undue delay in disciplining for this conduct? Should the Employer be permitted to rely on these grounds? I am unable to decide on this issue on a preliminary basis, for the following reasons.

67In my view, there was again a very long delay in proceeding with discipline based on these allegations, for all the reasons described above. Whether there is a reasonable explanation for the delay is, however, unclear.

68The Falsification of Records Allegations raise an issue distinct from the Culpable Attendance Allegations. For example, even if one assumes or understands that a lateness or an early departure was authorized or condoned, that does not mean that a false entry regarding Ms. Stanley’s actual arrival time or departure time was authorized. Whether or not records about arrivals and departures were properly completed by Ms. Stanley is a separate issue. Similarly, questions of undue delay and condonation must be looked at separately in this regard.

69Unlike the occasions of lateness or other Culpable Attendance Allegations, it is not self-evident at this point that the Employer knew or ought to have known of each of the allegedly improper record entries at the time or soon after each one was made. This appears to be a factual issue in dispute. Evidence is therefore required about when the Employer became aware or should reasonably have been aware of each alleged Falsification of Records incident, and whether and when Ms. Stanley knew or ought to have known that her entries were improper. Similarly, evidence is necessary to determine whether there is a reasonable explanation for the long delay, including the lengthy investigations and decision-making process. This cannot be determined at a preliminary stage.

70I am also unable to make a finding of prejudice to Ms. Stanley regarding the Falsification of Records Allegations at this stage. While condonation resulting from the delay will seemingly be an issue concerning these allegations, that issue also depends in part on the evidence about when management became aware of the conduct. If management was aware of Ms. Stanley’s conduct all along and did nothing or very little about such incidents during the whole period of delay, other than issuing the Memorandum to “All Staff” on November 2, 2020, the condonation argument is much stronger than if management only became aware of it as a result of the investigations. This issue must therefore also await a full hearing and may be revisited in final argument.

(c) The Entry/Exit Allegations

71Regarding the Entry/Exit Allegations, my conclusions are parallel to those regarding the Falsification of Records Allegations.

72Once again, in my view the length of the delay is very long, for the reasons outlined above. But whether there is a reasonable explanation for the delay is unclear and requires evidence. While one might presume that what entrance an employee uses – and whether one uses an improper entrance – is not a huge secret on any given day and is not something that requires a lengthy investigation, I do not have that evidence before me. I do not know when management became aware of this alleged misconduct. This too will require evidence.

73Furthermore, this issue seems to be intertwined with the merits of this aspect of the dispute. The parties appear to be in dispute over various conversations that Ms. Stanley had with managers about what permissions were required for her to use the front entrance near the disabled persons’ parking lot. There is an issue with what Ms. Stanley understood regarding her disability accommodation. This may also be relevant to the condonation issue.

74In the result, I am not prepared to rule at this stage on whether the Entry/Exit Allegations should be struck for undue delay. This issue may be revisited in final argument.

(b) Notebook Storage Allegations

75In the second allegation letter of May 25, 2021, the Employer added the following, new allegation: “Failed to maintain proper storage of Duty Notebook.” While the Appendix to that letter, listing the various incidents of concern, speaks of “inaccurately recording time on duty [or ‘time off duty’] in your duty notebook”, it does not speak of notebook storage. The suspension letter contains the same broad allegation, followed by an outline of a discussion at the allegation meeting about Ms. Stanley not storing her Duty Notebook in her assigned locker and once having inadvertently taken it home. No dates are provided regarding this allegation.

76In the absence of further particulars, including relevant dates regarding this allegation, I am unable to rule at this stage on whether it should be struck for undue delay.

D. Second Issue: Should the Termination be Voided Due to Delay?

Evidence

77The relevant, undisputed facts and allegations are as follows.

78The Employer asserts that even though Ms. Stanley had been placed on a work schedule that might better accommodate her needs, she continued to have attendance issues, including arriving late for work. On October 7, 2021, Ms. Stanley met with DS Jones-Charles for a discussion about her continuing attendance issues. DS Jones-Charles offered, and Ms. Stanley agreed, that she would be assigned to a Sergeant’s position in the Admitting and Discharge area. This meant her working schedule would be changed to working twelve (12) hour day shifts on a rotating shift schedule.

79The Employer asserts that at this meeting, DS Jones-Charles reminded Ms. Stanley she was expected to arrive at work on time for the start of her shift schedule.

80In January 2022 DS Cicak was assigned to assess Ms. Stanley’s attendance from October 2021 to January 2022. DS Cicak determined that Ms. Stanley’s pattern of late arrival and early departure appeared to be continuing. Given this information, the Employer decided to conduct a more formal investigation. DS Cicak asked TSDC Security to retrieve various information such as swipe card records, video recordings and Ms. Stanley’s Duty Notebooks. Ms. Stanley was not informed at this time of the concerns or the further investigation.

81On or around January 31, 2022, DS Cicak assigned the formal investigation of Ms. Stanley’s attendance and record-keeping to DS Jones-Charles.

82After this investigation, by way of a letter dated February 23, 2022, Ms. Stanley was advised she was to attend an allegation meeting to address new dates of concern. The meeting was scheduled to be held on February 25, 2022. The letter included a list of specific dates and times for 70 separate occasions between October 9, 2021 and January 24, 2022. Regarding many of these occasions, the Employer’s allegation was limited to Ms. Stanley failing to record any entries in her Duty Notebook. On other occasions, it was alleged that she arrived at work late or left before the end of her scheduled shift, without alleging any pay claim discrepancy. However, there are several occasions listed when there is an alleged lateness or early departure along with a discrepancy between her actual attendance and the time she signed in or out.

83At the allegation meeting on February 25, 2022, Ms. Stanley was asked to explain her conduct on the dates identified in the letter. She provided various explanations. DS Jones-Charles concluded that the explanations were insufficient.

84In the result, the Employer terminated Ms. Stanley by letter dated March 17, 2022. In that letter, it states that all of the original allegations outlined in the February 23 letter were substantiated, and described the cause for termination as outlined above.

85The allegations that constituted the cause for termination involve conduct that occurred on 70 occasions between October 9, 2021 and January 24, 2022. The allegation letter was dated February 23, 2022. Ms. Stanley was terminated by a letter dated March 17, 2022. The delays between the conduct and the allegation letter were therefore between one month and 4 ½ months, with another 3 weeks to the date of termination.

Parties’ Submissions

86Regarding the termination, Ms. Stanley argues that the delay involved is unreasonable. The termination letter deals with a period of almost 4 months. No culminating incident and no harm were reported as a result of any lateness. It is argued that Ms. Stanley’s lateness was known to her supervisor on each day the Employer now relies on as misconduct. None of them voiced any concern to her, she says. DS Jones-Charles, who conducted that investigation, did not speak with her about these issues before the allegation meeting.

87Ms. Stanley also argues that her supervisors had access to her Duty Notebook and could speak with her about any concerns regarding it, but none of them took action. She alleges that two levels of supervisor signed off on her Sign-in Sheets, including DS Carpener.

88Had the supervisors taken any action during the time in question, the situation could have been addressed then, argues Ms. Stanley. Concerns about lateness require the Employer to act on the day in question about the reasons and to address it appropriately. Ms. Stanley argues that her conduct was condoned. She was lulled into a false sense of security. She further argues that the Employer’s delay in dealing with its attendance concerns prejudiced her ability to respond. The prejudice was actual. She has lost any ability to respond with specifics regarding the occasions in question. In any event, the prejudice to her can be inferred from the circumstances. She alleges that the delay was purposeful, to accumulate dates to create cause for discipline. She argues that the Employer watched her attendance, did nothing for 4 months, accumulated as much as it felt necessary to rationalize cause and then confronted her in an allegation meeting.

89The Employer again argues that there was no delay. The length of time taken to investigate and decide on the termination was reasonable and necessary. The investigation was begun in January 2022 and an allegation letter was issued on February 23, 2022 for a meeting to be held two days later.

90The Employer again submits the situation, “necessarily requires a retroactive review of a period of time to determine whether the behaviour is isolated or whether there is a pattern of misconduct.” Only after a retroactive review of the period from October 9, 2021 to January 24, 2022, by closely comparing sign-in/sign-out records with electronic swipe card records and available video, could it be determined whether there were discrepancies in Ms. Stanley's attendance that could give rise to discipline, it is argued. A detailed review was done thoroughly and expeditiously, and there were no lengthy periods of unexplained delays during the investigation.

91The Employer again submits that Ms. Stanley was not prejudiced by any delay between the investigation and her termination. No condonation of her conduct was involved. The Employer continued to issue memos to "All Staff" reminding them of their obligations concerning signing in and signing out with the actual times of arrival and departure and to leave early only with permission. It is further argued that there was no impairment in Ms. Stanley's ability to defend herself. She provided "excuses and rationales" for many of the allegations.

Analysis and Reasons

92As with the suspension, the various allegations in support of the discharge can be categorized. I would categorize them as follows:

a. Culpable Attendance Allegations;

b. Falsification Records Allegations;

c. Failure to make timely and detailed entries in the Duty Notebook (“Lack of Record Allegations”); and

d. Entry/Exit Allegations.

93Again, the applicable legal principles should be applied separately to each category, and do not lead to the same result for each.

(a) Culpable Attendance Allegations

94For the reasons that follow, I have concluded that there was undue delay in acting on the Culpable Attendance Allegations that led to the discharge.

95I do not agree with the Employer’s submission that there was no delay. The delays in confronting Ms. Stanley with the Employer’s concerns were a minimum of 1 month to 4 ½ months from the date in question to the date of the allegation letter, with another 3 weeks to the date of termination. This is a long delay on questions of promptness and proper attendance.

96It again has not been suggested that the Employer’s managers were totally unaware of the late arrivals or unauthorized early departures and absences. Waiting a month or more to act on any concerns arising from such behaviours is prima facie unreasonable.

97Moreover, the only explanation the Employer has provided is the need to undertake a thorough investigation. I do not agree that it was necessary to undertake a month-long investigation before deciding whether to confront Ms. Stanley with any of the Culpable Attendance Allegations relating to the period from October 2021 to January 2022. Ms. Stanley should have been promptly made aware that the conduct was not permitted or, at least, was of serious concern. Waiting a month or more to confront an employee about such culpable attendance issues is simply too long within a proper progressive discipline scheme. The desire to investigate to discern whether there is a pattern is not a reasonable explanation for failing to put the employee on notice promptly. By way of comparison, if an employee was thought to be guilty of other obvious misconduct, for example, gross insubordination, a delay of 1 to 4 ½ months in acting on such an incident would be problematic, whether or not a pattern might be disclosed. I therefore find that there is no reasonable explanation for these delays.

98On the issue of prejudice, the reasoning above regarding the suspension applies here as well, even though the period of delay is less. The Employer’s failure to alert Ms. Stanley soon after each occasion of an alleged Culpable Attendance incident makes it difficult or impossible to defend herself or explain her conduct in retrospect, going back up to 4 ½ months. As with the suspension, there is an element of the Employer’s having allowed Ms. Stanley to “climb out on a long limb” only to later cut it off.

(b) Falsification of Records Allegations & (c) Lack of Record Allegations

99Regarding the Falsification of Records Allegations in support of the discharge, my reasoning is the same as applies to the similar allegations regarding the falsification of records that led to the suspension. The same logic also applies to the Lack of Record Allegations.

100In my view, there was again a considerable delay in confronting Ms. Stanley with these allegations, albeit not as long as occurred with the suspension. Whether there is a reasonable explanation for the delay is, however, unclear.

101Evidence is necessary as to when the Employer became aware or ought reasonably to have become aware of each Falsification of Records or Lack of Records incident. Evidence is also necessary to determine whether there is a reasonable explanation for the delay in confronting Ms. Stanley with the Employer’s concerns.

102Similarly, I am unable to make a finding at this stage as to any prejudice to Ms. Stanley regarding the delay in respect of the Falsification of Records or Lack of Records Allegations.

(d) Entry/Exit Allegations

103Regarding the Entry/Exit Allegations in support of the discharge, my reasoning is again the same as applies to the suspension, even though the period of delay is shorter. For the reasons noted above, I am not prepared to rule at this stage on whether the Entry/Exit Allegations should be struck for undue delay. Further evidence is required. This issue may be revisited in the final arguments.

Conclusions

104To summarize, I have concluded as follows:

a. The Culpable Attendance Allegations made in support of both the suspension and the termination are set aside for undue delay and they do not properly form part of the Employer’s cause for either the suspension or the discharge.

b. Regarding the other categories of allegations in respect of both the suspension and the discharge, I will reserve my decision regarding Ms. Stanley's motion that they should be struck for undue delay until the merits of the case have been heard.