PSGB# P-2019-1468

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

MacLennan

Complainant

• and -

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

Employer

BEFORE

Andrew Tremayne

Vice Chair

FOR THE COMPLAINANT

Mike MacLennan

FOR THE EMPLOYER

Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 11, 2020; February 4, September 23, October 4, November 14, November 16, November 22, 2021

Decision

1This decision deals with the complaint of Mike MacLennan, who is contesting a 2-day suspension that he received on July 18, 2019, for insubordination and improperly using his Ministry Purchasing Card (Pcard) to purchase the services of a private handwriting expert in connection with a work-related matter.

2The employer alleges that when Mr. MacLennan proposed to hire the expert, he was told that it was not necessary to do so but that he later acted on his own without authorization, charging a total of $1548.10 to his Ministry Pcard. This was insubordinate and contrary to various Ministry policies and the terms under which he was issued the Pcard.

3Mr. MacLennan says that he sent an email to his Superintendent asking for permission to hire the expert, but several days later had received no reply. The matter was urgent, he says, because he was investigating a Corrections Officer whom he believed had been compromised by an inmate, so he proceeded to use his Pcard to purchase the handwriting analysis and a written report which he believed would assist him in his investigation. Mr. MacLennan argued that it was sound investigative practice to hire the handwriting expert and that there were many other good reasons for him to have done so. He argued that the 2-day suspension was excessive and that he was doing a very difficult and stressful job with little support, recognition, or direction.

4The issue for the Board to determine is whether the employer had just cause to discipline Mr. MacLennan and, if so, was the level of discipline that he received appropriate. As in all cases involving discipline matters, the employer bears the onus of proof on a balance of probabilities.

Background and Context

5The events that led to Mr. MacLennan’s 2-day suspension took place in late 2018 and early 2019 at the Toronto South Detention Centre (TSDC), where he was the Deputy Superintendent, Security and Compliance. In that capacity, he managed and oversaw the TSDC security department, the work of which involves, among other things, taking measures to prevent contraband from being brought into the institution. It also sometimes involves investigating corrections staff whom the security department suspects could be transporting contraband into the institution.

6At the time of the events that led to the 2-day suspension, the Superintendent of TSDC and the person to whom Mr. MacLennan reported was Mike Wasylyk, who has since retired. The Deputy Regional Director who had direct oversight of TSDC at that time was Donata Calitri-Bellus, who is now in the role of Superintendent of TSDC. Both gave evidence at the hearing on behalf of the employer, and in this decision, I will refer to them based on their positions at the time of the events in question. Their evidence was introduced by way of will-say statements, and they appeared at the hearing to provide minor clarifications and to be cross-examined.

7Mr. MacLennan represented himself and testified at the hearing. He made extensive submissions and sought to introduce evidence about the workplace at TSDC, which he described as toxic, and about how the security department received little support, recognition, or direction, even though the problems of contraband and the possibility that there were “compromised” corrections staff in the institution were very serious. Mr. MacLennan also made submissions and sought to introduce evidence that Supt. Wasylyk had treated him unfairly, not just in connection with the incident that led to the 2-day suspension, but in other matters.

8It became clear over the course of the hearing that there was little or no dispute about the material facts that were relevant to the legal issue to be determined, namely whether Mr. MacLennan had received authorization to use his Pcard, and whether he followed direction from Regional Office when he was told that it was not necessary to hire a handwriting expert. The evidence of these material facts is found primarily in the documents introduced at the hearing, many of which were written by Mr. MacLennan. In particular, Mr. MacLennan wrote a lengthy and detailed Occurrence Report (OR) on February 26, 2019, less than a month after the events in question. Detailed notes of the Allegation Meeting, which took place on May 17, 2019, were introduced at the hearing by the employer, and Mr. MacLennan, by and large, did not dispute that these notes were an accurate record of what was said. There was some dispute about what was said during a teleconference held on January 30, 2019 and about a brief meeting between Mr. MacLennan and Supt. Wasylyk that is alleged to have taken place on January 31, 2019. The following summarizes the relevant evidence and includes comments and findings on these disputed matters.

Evidence

Investigation into contraband at TSDC

9In late December 2018, Mr. MacLennan and his staff received information that a CO (referred to from now on in this decision as “C”) might be transporting contraband into the TSDC. After further investigation, additional evidence pointing to C’s involvement was uncovered. The evidence included notes and documents with C’s personal information found in an inmate’s cell. Security staff interviewed C, who denied any knowledge of how the inmate came to have this information and further denied any involvement in the transportation of contraband into the institution.

10The investigation continued. C left work briefly after filing a WSIB claim but returned a few days later with personal safety measures in place. More evidence was found pointing to C’s involvement. Further details of the investigation are not relevant to this decision, except for the fact that Mr. MacLennan and his staff came into possession of notes and other documents (found in the inmate’s cell) that they suspected were in C’s handwriting. Mr. MacLennan compared the handwriting in these documents with samples of C’s handwriting, which he obtained from C’s duty notebooks stored in the TDSC security department. Mr. MacLennan could see some similarities but felt that the evidence was inconclusive.

January 30, 2019 teleconference

11In Mr. MacLennan’s February 26, 2019 OR, he wrote that on or about January 30, 2019, he had a teleconference with RD Lou-Ann Lucier and OPP Inspector Lester Phelps regarding the suspicions about C’s involvement with the inmate and with importing contraband into the institution. He wrote that they “discussed options involving OPP handwriting experts but since there was no confirmed criminality and that this was not a priority investigation for the OPP, there would be no handwriting analysis by the OPP.”

12DRD Calitri-Bellus said that on January 30, 2019, she met with RD Lucier to give her an update on the investigation into C. DRD Callitri-Belllus mentioned that Mr. MacLennan wanted to retain a handwriting expert to review some notes or letters that were believed to have been written by C that had been found in an inmate’s cell. OPP Inspector Phelps, who worked nearby, was asked to join the meeting. They reviewed the documents and compared them with a sample of C’s handwriting on file. DRD Calitri-Bellus thought it was obvious that the same person wrote them and RD Lucier and Inspector Phelps agreed. They remained in RD Lucier's office and called Mr. MacLennan to discuss the matter.

13During the call, RD Lucier told Mr. MacLennan that there was no need for a handwriting analysis and that he did not have approval to retain a handwriting expert. She explained that it was not necessary in light of their own review of the handwriting and the fiscal and logistical costs of an expert. They were also concerned about the potential risk of relying on this type of evidence at the Grievance Settlement Board if C filed a grievance. Mr. Phelps added that the evidence could easily be thrown out at a hearing. DRD Calitri-Bellus said that she had never been involved in a case where a handwriting expert was retained, so it was very unusual. She clearly recalled that it was strongly suggested to Mr. MacLennan that he re-interview C and move the investigation forward in that manner.

14At the hearing, Mr. MacLennan challenged Ms. Calitri-Bellus’s recollection of the call because she had testified that she had taken notes but could not locate the notebook that she was using at the time, and her evidence was based entirely on her recollection. Mr. MacLennan also asserted that it was unlikely that Mr. Phelps had said that the evidence of a handwriting expert could be easily thrown out because courts and tribunals have accepted evidence of this nature. Ms. Calitri-Bellus replied that her recollection was clear because the subject of the call was unusual, and she remained firm in her evidence.

January 31, 2019 email

15In Mr. MacLennan’s February 26, 2019 OR, he wrote that on January 31, 2018, he sent an email to Supt. Wasylyk, RD Lucier, DRD Calitri-Bellus. Mr. MacLennan informed the group that he had reached out to Docufraud, a handwriting analysis company specializing in producing “court defensible reports” regarding handwriting analysis that he had found on a Google search. He told them that he had received a quote for $1370 + HST (plus $685 for a written report) for the analysis of C’s handwriting, which would show that C had written the letters found in the inmate’s cell. The last paragraph of Mr. MacLennan’s email is as follows:

I would like to proceed with this analysis as [C] has just returned to work today and I firmly believe [C] has been compromised with the TSDC inmate population. Upon receiving a positive analysis from Docufraud, I would like to proceed with the disciplinary process beginning with an interview with TSDC Security.

16Mr. MacLennan’s OR went on to say that on February 4, 2019, he had not received a response to his email, and due to increasing rumours that C was compromised, he sent C’s handwriting samples and a portion of the letter found in the inmate’s cell to Docufraud. Mr. MacLennan’s OR continued as follows:

Given the gravity of a security breach such as this and the lack of direction, as the head of the Security Department, I needed to know definitively whether or not [C] was the author of the letters as this type of security breach could have detrimental outcomes in a correctional environment. The confirmation of the handwriting analysis from an external expert was required as I intended to conduct an interview with [C] to confront [then on their] conduct. This handwriting analysis would be the proof I needed to press C into admitting the truth.

17Mr. MacLennan’s OR continued that on February 5, 2019, he paid Docufraud $774.05 using his P-Card. He received a preliminary indication that the handwriting was the same, and this was confirmed a few days later in a written report, at which time Mr. MacLennan paid the remaining $774.05 for the written report, also using his P-Card.

18A few weeks later, Mr. MacLennan’s OR states, he interviewed C again and was able to get a full verbal and written confession from C about their involvement with the inmate and the transportation of contraband into the institution.

19Supt. Wasylyk’s evidence is that he received Mr. MacLennan’s January 31, 2019 email that mentioned a handwriting expert from a company called Docufraud. The email included correspondence between Mr. MacLennan and a representative of Docufraud that outlined the estimated pricing and included the handwriting examiner's CV. Docufraud is located in the United States, and the examiner is based in Oklahoma. Supt. Wasylyk said that he spoke to Mr. MacLennan in person on January 31 and told him that he could not approve the request and that his (Mr. MacLennan’s) request would need to be approved by Regional Office.

20Supt. Wasylyk later learned that Mr. MacLennan charged $774.05 to his P-Card on February 5, 2019, and the same amount again on February 7, 2019. He spoke to Mr. MacLennan in person on February 8, 2019, telling him that he did not have permission to proceed. At the hearing, Supt. Wasylyk produced brief notes that he made during or soon after this meeting. Supt. Wasylyk told Mr. MacLennan that he did not have approval to hire a private handwriting expert. Mr. MacLennan replied that he knew that he did not have approval but had sent an email and had not heard back. He told Supt. Wasylyk that C was compromised and he needed to act quickly and that hiring the expert would save time and money in a hearing if C filed a complaint.

21At the hearing, Mr. MacLennan challenged Supt. Wasylyk’s recollection of these events. Mr. MacLennan noted that Supt. Wasylyk had no notes of the January 31 meeting and only brief notes of the February 8 meeting. Supt. Wasylyk’s recollection of other matters, such as a workplace cultural review at TSDC and Mr. MacLennan’s annual performance and readiness assessments, was challenged, but Supt. Wasylyk remained firm in his recollection of the events of January 31 and February 8. Mr. MacLennan produced his own brief notes of the February 8 meeting, and these notes do not contradict Supt. Wasylyk’s evidence.

Allegation Meeting

22The Allegation Meeting was held on May 17, 2019. Supt. Wasylyk led the meeting, which Mr. MacLennan attended with a support person. DS Angela Cicak also attended and took notes. The allegation (as set out in the Notice of Allegation) reads:

You were insubordinate and improperly purchased and expensed $1548.10 for Docufraud services on your Ministry P-Card, without your manager’s prior approval.

23Supt. Wasylyk’s evidence is that Mr. MacLennan responded to this allegation by stating that he did seek approval before hiring Docufraud by sending an email on January 30, 2019 (see above), but that he did not get a reply. He said that he felt that it was a time-sensitive matter and proceeded to hire Docufraud without authorization. Mr. MacLennan told him that he was reasonably sure before the handwriting analysis that the subject of the investigation was the author of the letters but felt that being reasonably sure was not good enough. He also told Mr. Wasylyk that he had contacted the OPP and Toronto Police about using their handwriting experts, but they declined for various reasons.

24At the hearing, Mr. MacLennan testified that he told Mr. Wasylyk that the matter was time-sensitive because of the amount of contraband flowing into the institution. He also told Mr. Wasylyk that although he was reasonably sure that the handwriting was a match, it was important for him to be certain because he could be sure of his position when he interviewed C, who ultimately admitted everything and resigned. Mr. MacLennan added that this strategy saved the Ministry money because otherwise, C might have denied the allegation and gone on leave, filed a complaint, or both.

25The notes taken by DS Cicak at the Allegation Meeting were produced at the hearing. The notes align with Mr. Wasylyk’s and Mr. MacLennan’s evidence about the meeting as set out above, and they both agreed that the notes were an accurate record of what was said.

Outcome of Allegation Meeting and Letter of Discipline

26It was Mr. Wasylyk’s evidence that in reviewing the matter, he considered the information surrounding Mr. MacLennan’s use of his P-Card to hire Docufraud as well as Mr. MacLennan’s responses to the allegation in the Allegation Meeting. Mr. Wasylyk concluded that the allegation was substantiated and that Mr. MacLennan’s conduct was in direct contravention of Ministry policies and procedures, including but not limited to: The Ministry's Institutional Services Policy and Procedures Manual (Staff Conduct and Discipline; Statement of Ethical Principles); TSDC's Institutional Standing Orders; the Ministry's policies and directions on Financial Delegations of Authority and the use of P-Cards, and the Ontario Correctional Services Code of Conduct and Professionalism ("COCAP").

27Mr. Wasylyk did not think that Mr. MacLennan’s explanation justified his conduct. His responses in the Allegation Meeting showed that he knew he required authorization to hire Docufraud, but nonetheless proceeded without approval for a service that he was previously advised was not necessary. Although Mr. MacLennan said he would seek authorization in future, Mr. Wasylyk said that he did not seem to understand that what he had done was wrong and made excuses to justify his conduct. Mr. Wasylyk did not think that Mr. MacLennan had taken responsibility or demonstrated remorse for his actions.

28Mr. Wasylyk decided that a 2-day disciplinary suspension was an appropriate response. In particular, Mr. Wasylyk noted that Mr. MacLennan was aware that he needed approval, sought approval, but then decided to proceed without receiving authorization. Mr. Wasylyk was particularly concerned that he had had a conversation with Mr. MacLennan and had told him that he would need approval from Regional Office to proceed. Mr. MacLennan’s January 31 email showed that he knew he needed approval but then proceeded anyway without it. Mr. Wasylyk said that he considered all of the relevant factors when he decided on the 2-day suspension, including the expectation that as a Deputy Superintendent, Mr. MacLennan is held to a higher standard of behaviour and accountability in a senior management role.

29At the hearing, Mr. MacLennan argued that based on his workplace history with Mr. Wasylyk, it was inappropriate for Mr. Wasylyk to have conducted the Allegation Meeting and to have imposed a 2-day suspension. Mr. MacLennan testified that he received little or no support, recognition, or direction from Mr. Wasylyk. For example, Mr. Wasylyk was not interested in the work of the security department and seldom replied to his emails. The only recognition he received for his work, said Mr. MacLennan, came in two short letters of commendation for other matters and which were emailed to him the same day he received his letter of discipline, which was hand-delivered. Mr. MacLennan described other incidents where he felt that Mr. Wasylyk had treated him unfairly, such as when he was given a non-disciplinary letter for not reporting a use of force in circumstances where Mr. MacLennan argued that the requirement to report a use of force did not apply. Mr. MacLennan also testified that he and his department had once investigated a relative of Mr. Wasylyk (who also worked in corrections) and that the relative had been disciplined for misconduct.

30I have several problems with Mr. MacLennan’s position. First, there is no evidence before the Board that he raised any concern about Mr. Wasylyk’s role in the Allegation Meeting before or during that meeting, nor did he raise any concern about Mr. Wasylyk’s involvement in the disciplinary process until he filed his complaint. If Mr. MacLennan felt that it was not appropriate for Mr. Wasylyk to be involved in the investigation of his unauthorized use of his Pcard or the disciplinary process, he ought to have raised his concerns in a more timely manner. In any event, there is no evidence before the Board that Mr. Wasylyk said or did anything in the course of holding the Allegation Meeting or during the disciplinary process that would suggest that his involvement in this matter was inappropriate or that Mr. MacLennan was treated unfairly.

31Second, Mr. MacLennan reported to Mr. Wasylyk, and it is not unusual for incidents to arise that bring employees, including senior managers, into conflict. Assuming without finding that there was friction in the workplace between Mr. MacLennan and Mr. Wasylyk and that Mr. MacLennan would have benefited from a different leadership style or a more structured working relationship with his Superintendent, it does not automatically follow that it was inappropriate for Mr. Wasylyk to be involved in the process that led to Mr. MacLennan receiving a 2-day suspension.

32Finally, as stated above, there was little or no dispute about the material facts that are relevant to the legal issue to be determined in this matter, namely whether Mr. MacLennan had received authorization to use his Pcard and whether he followed direction from Regional Office when he was told that it was not necessary to hire a handwriting expert. The evidence of these material facts is found primarily in documents and correspondence that Mr. MacLennan wrote and in other sources, such as meeting notes, the material contents of which were largely not in dispute.

Submissions of the Parties

The Employer

33The employer’s position is that Mr. MacLennan’s conduct justified the relatively low disciplinary suspension of 2 days. He improperly and without authorization used his Ministry Pcard when he spent $1548.10 on the services of Docufraud. His use of the Pcard was also insubordinate because he had been directed not to do so.

34There was no dispute that Mr. MacLennan did not have the authority to use his Pcard without proper approval, argued the employer. This is set out clearly in the Pcard guidelines and the Ministry’s financial delegation and spending authority policies. Mr. MacLennan needed approval from his manager before using his Pcard. When the Pcard was issued to him, he confirmed in writing that unauthorized use of the card could be considered misappropriation of funds. There is no dispute that Mr. MacLennan did not have the authority to hire Docufraud on his own, and no disagreement that he never received permission from his manager to do so.

35It is significant, noted the employer, that Mr. MacLennan never took the position that he had, or reasonably thought that he had, the authority to proceed on his own. Instead, he has focussed his submissions on why he was justified in hiring Docufraud and pressing his complaints about the workplace, neither of which are relevant to the issue that the Board must determine, namely whether the employer had just cause to discipline him and whether the discipline he received was appropriate.

36The employer’s allegation that Mr. MacLennan was insubordinate relates primarily to the January 30, 2019 teleconference and the January 31, 2019 email. Mr. MacLennan’s February 26, 2019 OR described the teleconference, so there is no dispute that it took place. The evidence of DRD Calitri-Bellus is that Mr. MacLennan was told that he did not have permission to hire a handwriting expert because it was not necessary. Mr. MacLennan led no evidence to contradict this, the employer submits.

37One day later, Mr. MacLennan sent an email to Supt. Wasylyk, cc’d to others, requesting approval to hire Docufraud to do a handwriting analysis and provide a report. Supt. Wasylyk testified that he told Mr. MacLennan in person that he could not approve the request and that he (Mr. MacLennan) would need to seek approval from Regional Office. Although Mr. MacLennan challenged Supt. Wasylyk’s evidence on this brief meeting in cross-examination, his recollection remained unshaken, and Mr. MacLennan led no evidence of his own to contradict it.

38In the allegation meeting, Mr. MacLennan admitted that he did not have approval to use his Pcard to hire Docufraud. In his OR and again in the Allegation Meeting, he said that he had proceeded because he had not received a response to his January 31, 2019 email and that he felt the matter was time-sensitive. However, argued the employer, the email says nothing about it being a time-sensitive matter, nor does it request a response by a specific date. There is no evidence that Mr. MacLennan followed up by calling RD Lucier or DRD Calitri-Bellus or otherwise expressed urgency. Instead, Mr. MacLennan thought that his approach was the only correct one, and he did not respect the direction he was given.

39Mr. MacLennan submits that he acted reasonably in the absence of any direction from the Regional Office or his supervisor, Supt. Wasylyk. He sent the January 31, 2019 email because he was seeking clear direction, which he did not receive in the January 30, 2019 teleconference. He was never told “no” in response to his request to hire a handwriting expert, argued Mr. MacLennan, and in the absence of a clear “no” he had implied consent. There was a very serious problem with contraband in the institution, and he felt that it was necessary to proceed. The health and safety of inmates and corrections staff were at risk. He and his team received no support or recognition for their work, and he was left to his own devices and was forced to make decisions using his best judgement and based on sound investigative practice.

40Mr. MacLennan denied that Supt. Wasylyk told him on January 31, 2019, that he did not have permission from him to proceed and that he would need authorization from Regional Office. No record of or notes from this meeting were produced, argued Mr. MacLennan and Supt. Wasylyk did not mention it in the allegation meeting. Mr. MacLennan did not mention this exchange in his February 26, 2019 OR, which Supt. Wasylyk accepted at the time and did not correct. If he had received a “no” in response to his January 31, 2019 email, Mr. MacLennan argued, he would not have proceeded.

Analysis and Findings

41The issue for the Board to determine is whether the employer had just cause to discipline Mr. MacLennan and, if so, was the level of discipline that he received appropriate. As in all cases involving discipline matters, the employer bears the onus of proof on a balance of probabilities.

42Mr. MacLennan knew that he did not have the authority on his own to spend $1548.10 to purchase a handwriting analysis and a written report from Docufraud and that he needed approval to do so. The preponderance of the evidence on this point is in writing and was never really in dispute. In his January 31, 2019 email to Supt. Wasylyk, cc’d to RD Lucier and DRD Calitri-Bellus, Mr. MacLennan described the services of Docufraud, attached a quotation for the services he proposed to purchase, and stated, “I would like to proceed with this analysis. . . .” This email clearly shows that Mr. MacLennan was asking for approval to spend the amount indicated. It stands to reason that if he had, or thought that he had, the authority to proceed without approval, he would either have simply informed those to whom the email was addressed that he was proceeding, or he would not have sent the email at all.

43Mr. MacLennan’s February 26, 2019 OR states that on February 4, 2019, he had not received a response to his email. He wrote at length in this OR that he had proceeded anyway because, in his view, the matter was serious and time was of the essence. In other words, he was waiting for approval, but when it was not forthcoming, he went ahead. If Mr. MacLennan had, or thought that he had, the authority to act on his own, there would have been no need for him to wait, nor would there have been any need for him to explain at such great length in his OR why he felt justified in proceeding on his own.

44It is also important to note that January 31, 2019, was a Friday, so when Mr. MacLennan acted on his own and without authorization on February 4, 2019 (which was a Tuesday), barely two business days had passed. There was no indication in the email that the request was urgent or that the matter was in any way time-sensitive. Moreover, there is no evidence that Mr. MacLennan followed up with any of the parties to whom he had addressed his email, either by phone or otherwise, when he did not receive what he felt was a sufficiently timely response. This undermines Mr. MacLennan’s assertion that he was somehow justified in proceeding without authorization in the face of what he felt was excessive and unjustified delay by those to whom he had addressed his email. At the very least, if he felt that the matter was truly urgent, he was not fully transparent about it with his colleagues.

45The Ontario Public Service Purchasing Card (Pcard) Program and Usage Guidelines document says that “cardholders must obtain approval from their manager before making purchases.” The document that Mr. MacLennan signed when he was issued his Pcard says that “unauthorized use of the card can be considered misappropriation of funds.” Approval (or authorization) is an action that must be performed, in this case by Mr. MacLennan’s manager, in response to a request. Mr. MacLennan needed a positive response to his proposal to hire Docufraud before it could be said that he had been authorized to use his Pcard. Silence is not approval or authorization. The fact that nobody who received Mr. MacLennan’s January 31, 2019 email replied “no” changes nothing. His request remained merely a request until it was properly approved or authorized.

46However, the preponderance of the evidence strongly suggests that Mr. MacLennan was effectively told that his proposal to hire a handwriting expert was not approved during the January 30, 2019 teleconference. DRD Calitri-Bellus’s evidence was clear and detailed. Notably, she recalled that when she, RD Lucier, and Mr. Phelps discussed the ongoing investigation of C, they looked at the handwriting samples themselves and were quite sure that they were the same. This aligns with Mr. MacLennan’s own evidence that he was reasonably sure that the handwriting in both samples was C’s but that this was not good enough for him. He wanted to be completely sure so that he could re-interview C “knowing 100%” that he would be able to confront C with certainty. The concerns about hiring a handwriting expert that were expressed during the teleconference, namely that it would be highly unusual to do so for a matter that could end up at the GSB, that the expert’s evidence could be easily challenged, and that overall, weighing the likely cost against the actual need for even greater certainty that the handwriting samples matched, it was simply not necessary, are all the kinds of reasonable concerns that are likely to have been expressed in these circumstances by senior managers in the Regional Office.

47Mr. MacLennan denies that he was given any such clear direction during the January 30, 2019 teleconference. In particular, he asserts that he was “not told ‘no’” in response to his request. I have several problems with his position. First, Mr. MacLennan repeatedly stated that he was very upset about the amount of contraband at TSDC and deeply frustrated with the lack of direction and support he was receiving, particularly from Supt. Wasylyk. Second, Mr. MacLennan has repeatedly asserted that it was his view that it was important to be 100% sure that the handwriting was C’s. He has also argued that his view aligns with best investigative practice. However, it stands to reason that there are different views about the utility of hiring a handwriting expert in these circumstances. Given other considerations such as cost and practicality, those views may be more compelling. Third, Mr. MacLennan did not indicate that the matter was urgent, nor did he follow up his request by contacting any of the parties to whom he had addressed his email. He proceeded on his own, without authorization, barely 2 business days after he sent his email.

48These considerations strongly suggest that Mr. MacLennan was narrowly focused on the path he had already chosen, namely that it was absolutely necessary to hire a handwriting expert. He was not interested in or paying attention to the views of his colleagues. In other words, he was not open to hearing what they had to say. In any event, even if nobody on the teleconference actually said the word “no” to Mr. MacLennan, the overall thrust of the discussion was clear: nobody approved Mr. MacLennan’s request to hire a handwriting expert, and he was given direction (or, at the very least, it was strongly suggested to him) to move the investigation forward by re-interviewing C.

49It is also essential to consider the makeup of the participants on the January 30, 2019 teleconference: two senior managers in the Regional Office and an OPP inspector were discussing a highly sensitive matter with a senior manager from TSDC. The parties had different views about how best to proceed, and while it is clear that nobody on the call ever authorized Mr. MacLennan’s request, it would be expected that among senior managers, the message that his request was being denied would be communicated politely and respectfully. Nevertheless, the overall thrust of the discussion ought to have left no doubt in Mr. MacLennan’s mind that his request to hire a handwriting expert had not been approved even if neither of the two senior managers in the Regional Office ever uttered the word “no” to him.

50If there is any remaining doubt about whether Mr. MacLennan understood that his request had not been approved, that doubt is removed by Mr. MacLennan’s January 31, 2019 email. This email was a renewed request for approval to hire a handwriting expert, and it included a specific proposal and costing from Docufraud. It stands to reason that if Mr. MacLennan’s request had been approved during the January 30, 2019 teleconference, he would have worded his January 31 email very differently. For all of these reasons, I find that Mr. MacLennan was effectively told during the January 30, 2019 teleconference that his proposal to hire a handwriting expert was not approved and that he was to proceed with his investigation by re-interviewing C.

51As a result, it is not necessary to determine what was said during the brief exchange between Supt. Wasylyk and Mr. MacLennan on January 31, 2019, or even if that exchange occurred, because Mr. MacLennan had already received clear direction from Regional Office the day before. Assuming without finding that Supt. Wasylyk said nothing to Mr. MacLennan about the matter on January 31 and that they did not discuss it until they met briefly on February 8, the direction that Mr. MacLennan received on January 30 had not changed.

52It is generally understood that three elements must be established to support a finding that an employee has been insubordinate. First, the employee was given a clear direction that the employee understood; second, the direction was given by a person with authority to direct the employee; and third, the employee did not follow the direction. Boards of arbitration have also held that comments or behaviour that can reasonably be said to challenge an employer’s authority in a meaningful way also constitute insubordination. In other words, insubordinate behaviour can include more than just straightforward acts of defiance or disobedience. In all cases, however, the words used between the parties should be viewed objectively and in the context of all of the surrounding circumstances.

53In this case, the parties on the January 30, 2019 teleconference discussed Mr. MacLennan’s request to hire a handwriting expert. Mr. MacLennan knew that he needed authorization to proceed. That authorization was not forthcoming, and Mr. MacLennan was instead directed to proceed by re-interviewing C. These directions, particularly the fact that his request was not approved, were clear, even though none of the people in authority used the word “no”. Mr. MacLennan’s January 31, 2019 email made it clear that he knew that his request had not been approved, and he admitted this in the Allegation Meeting. He thought he knew better and acted on his own, in defiance of the clear direction he had been given during the January 30, 2019 teleconference with Regional Office. He was obliged to follow that direction even if he disagreed with it. In all of these circumstances, Mr. MacLennan’s use of his Pcard was both unauthorized and insubordinate.

54Mr. MacLennan was given a 2-day suspension. The Board has consistently held that managers in a correctional facility are held to a higher standard of conduct than the staff they supervise. Managers are expected to demonstrate good judgement and a high degree of commitment to following policies and procedures. There is also an expectation that managers will perform a modelling role in leading by example.

55A senior manager such as a Deputy Superintendent occupies a position of trust, significant responsibility, and considerable authority. A senior manager is expected to demonstrate leadership and fulfill their duties with integrity and professionalism at all times, with little or no monitoring or supervision. A senior manager is expected to set the standard for and lead other managers, including leading by example. With greater responsibility and authority come higher expectations, which in turn come with a very high level of accountability.

56In this case, Mr. MacLennan substituted his own judgement for the judgement of the senior managers to whom he reported. He privately disagreed with their decision that hiring an outside handwriting expert was not necessary because he thought he knew better. He decided to use his Ministry Pcard when he knew that he had not been authorized to do so. The Ministry’s expectations for the conduct of its senior managers apply to Mr. MacLennan regardless of whether or not he was dissatisfied with his own working conditions at TSDC. As a result, I find that a 2-day suspension is an appropriate disciplinary response to Mr. MacLennan’s misconduct.

57Mr. MacLennan says that he is remorseful and that next time, he will wait for authorization before using his Pcard. However, in the allegation meeting and throughout the hearing, MacLennan argued that it was sound investigative practice to hire the handwriting expert and that there were many other good reasons for him to have done so. He also maintained that the 2-day suspension was excessive, partly because he was doing a very difficult and stressful job with little support, recognition, or direction. In particular, he was harshly critical of Supt. Wasylyk’s management of TDSC. Aside from agreeing to follow the employer’s policy and procedure on using his Pcard in the future, the overall posture that Mr. MacLennan has adopted in response to the employer’s decision that his conduct warranted discipline is one of defiance and resentment, not remorse.

Summary and Disposition

58Mr. MacLennan charged a total of $1548.10 to his Ministry Pcard without proper approval or authorization. Specifically, he charged $774.05 to his P-Card on February 5, 2019, and the same amount again on February 7, 2019, for the services of a private handwriting expert. When Mr. MacLennan first proposed to hire the expert, he was told that it was not necessary but that he later did so on his own. His conduct was contrary to various Ministry policies and the terms under which he was issued the Pcard, and it was also insubordinate.

59Mr. MacLennan’s misconduct warranted a disciplinary response, and the 2-day suspension that he received was appropriate in light of all of the relevant considerations. As a result, this complaint is dismissed.