PSGB# P-2024-01582

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Lawrence

Complainant

• and -

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

Employer

BEFORE

Andrew Tremayne

Vice Chair

FOR THE COMPLAINANT

Omar Lawrence

FOR THE EMPLOYER

Dina Zonoozi Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 29; February 20 and 21; June 17 and 24, 2025.

Decision

1This decision addresses the complaint of Omar Lawrence, who contests a 7-day disciplinary suspension without pay issued to him on August 14, 2024. At all relevant times, Mr. Lawrence was working as a Staff Sergeant at the Toronto South Detention Centre (TSDC). He has 25 years of service.

2Mr. Lawrence was given the suspension for arriving late for work and signing timesheets that did not reflect his late arrival, signing overtime sheets when he had spent part of the overtime shift in the gym, leaving the institution without signing out for unpaid breaks, and sending an inappropriate and unprofessional email to the Deputy Superintendent of Operations who was investigating these and other related matters. These incidents are alleged to have taken place between December 2023 and February 2024.

3The employer alleges that Mr. Lawrence’s behaviour is contrary to various Ministry Policies and Procedures, including the Institutional Services Policy and Procedures Manual, TSDC Standing Orders, and the Ontario Correctional Services Code of Conduct and Professionalism (COCAP).

4Mr. Lawrence denies the allegations, saying that he has been singled out and punished unfairly for behaviour that is common in the workplace. He asserts that the investigation into his behaviour was procedurally flawed, that the employer is selectively enforcing its policies, that the discipline was unduly harsh, and that he has been the victim of racial bias and unequal treatment.

5The issue for the Board to determine is whether the employer had just cause to discipline Mr. Lawrence and, if so, whether the level of discipline he received was appropriate. As in all cases involving discipline matters, the employer bears the onus of proof on a balance of probabilities.

6As to Mr. Lawrence’s allegation that he has been the victim of discrimination under the Ontario Human Rights Code or any other relevant workplace legislation, the employer argues that Mr. Lawrence has failed to make out a prima facie case.

Background and Context

7The events that led to Mr. Lawrence’s suspension took place between December 2023 and February 2024. The employer notes that it began looking into Mr. Lawrence’s behaviour at work after receiving an Occurrence Report (OR) from a co-worker in late January 2024. The OR said that Mr. Lawrence’s lack of attendance (arriving late and using the gym during working hours) was affecting other staff members and resulting in work not being completed or being unfairly passed on to others.

8The Deputy Superintendent at TSDC, Carlos Santos, received the OR. After consulting with Employee Relations, DS Santos assigned the Deputy Superintendent of Operations at TSDC, Travis Williamson, to investigate the concerns about Mr. Lawrence’s behaviour. DS Santos received regular briefings about the investigation and monitored its progress to ensure that proper processes were followed. DS Santos testified at the hearing and was the employer’s only witness.

9DSO Williamson met with Mr. Lawrence on February 1, 2024 to discuss the employer’s concerns, particularly about his use of the gym while on duty. Mr. Lawrence confirmed his response in an OR later the same day. On February 7, DSO Williamson asked Mr. Lawrence for additional information about his gym use, as well as his attendance and lunch breaks outside the institution. Mr. Lawrence responded twice: the next day, in a February 8 email to DSO Williamson, and then in an OR dated February 9.

10The employer says that Mr. Lawrence’s February 8, 2024 email to DSO Williamson was inappropriate and unprofessional, causing additional concern about Mr. Lawrence’s behaviour. This email eventually became another allegation and formed part of the basis for Mr. Lawrence’s disciplinary suspension.

11The allegations (as set out in the May 22, 2024 Notice of Allegation from DSO Williamson) are:

Allegation 1:

It is alleged that you attended the institution late on several occasions between Dec. 1, 2023 – Jan. 17th, 2024. (See Appendix A for specific dates). [Note: 9 dates in December 2023 and January 2024 are listed].

Allegation 2:

It is alleged that you fraudulently signed the time sheets indicating that you attended work on time on the days that you were late. (See Appendix A for specific dates). [Note: 5 dates in January 2024 are listed]

Allegation 3:

It is alleged that you fraudulently signed the overtime sheets indicating that you were working overtime when you were in the gym and not at your post on several occasions (See Appendix A for specific dates). [Note: 4 dates in December 2023 and January 2024 are listed]

Allegation 4:

It is alleged that you departed the institution without signing out for your unpaid break on several dates. (See Appendix A for specific dates). [Note: 12 dates in December 2023 and January 2024 are listed]

Allegation 5:

It is alleged that your email to me on February 8th, 2024, was inappropriate and unprofessional.

[Note: the sections of the COCAP, TSDC Standing Orders and the Institutional Services Policy and Procedures Manual that Mr. Lawrence is alleged to have contravened are listed in detail under each allegation on the Notice of Allegation and need not be reproduced here.]

12The Allegation Meeting was held on May 29, 2024. DSO Williamson led the meeting, and Mr. Lawrence attended with a support person. Mr. Lawrence’s manager, DSO Lana Armstrong, also attended and took notes. These notes (which were later typed) were admitted as evidence at the hearing. Mr. Lawrence did not dispute that the notes accurately reflected the parties’ discussion.

13Mr. Lawrence challenged the allegations, saying, among other things, that they were not credible. He questioned why he was being singled out. He agreed he had used the gym regularly but said he had never neglected his duties and always went to the gym before or after work on his own time.

14Mr. Lawrence received the results of the Allegation Meeting in a disciplinary letter dated August 14, 2024. The employer had determined that all of the allegations were substantiated, and Mr. Lawrence was issued a 7-day suspension without pay to be served between August 17 and 26, 2024.

15Mr. Lawrence submitted his complaint to the Board on September 23, 2024. The employer raised no objection to its timeliness.

16Mr. Lawrence’s work schedule, sign-in sheets, swipe card data, CCTV recordings of Mr. Lawrence’s movements in the facility, and overtime sheets were among the records that the employer reviewed during its investigation. Copies of these documents were admitted as evidence at the hearing. The employer also prepared a spreadsheet during its investigation that summarized swipe card data for the relevant dates alongside Mr. Lawrence’s hours of work (including overtime shifts). This was also admitted as evidence. Finally, for the hearing, the employer prepared a chart summarizing all this information, organized under headings for each allegation. Mr. Lawrence did not dispute that it accurately reflected the information in the employer’s records.

17The CCTV recordings of Mr. Lawrence’s movements in the facility were made available to him, but not viewed at the hearing. After the start of these proceedings, Mr. Lawrence requested production of additional CCTV recordings that, he said, would show some of his co-workers entering and leaving the gym (specifically the changeroom) during their working hours. The employer said that it had kept only the CCTV footage it intended to rely on to support the allegations involving Mr. Lawrence, and that no other footage showing Mr. Lawrence’s co-workers had been preserved.

18Mr. Lawrence represented himself and testified at the hearing. He also sought to introduce evidence about the workplace at TSDC, which he described as racist, and about how he had been unfairly targeted, singled out and investigated for his workplace behaviour when, in his view, many of his co-workers engaged in the same conduct, namely arriving late and using the gym during working hours. Mr. Lawrence called two witnesses to testify at the hearing: Kevin Williams and Sheryl Richards, both Staff Sergeants at TSDC.

19At the hearing, there were several developments in the employer’s case. First, the employer said it would not be pursuing Allegation 4 (departing the institution without signing out for unpaid breaks on 12 dates in December 2023 and January 2024). Second, it emerged that the employer had been under the mistaken impression that there was previous discipline in Mr. Lawrence’s file. The discipline was said to have been from 2017 and was, supposedly, for 20 days. After reviewing the relevant documents, the employer said that it would not dispute Mr. Lawrence’s assertion that he had no previous discipline. The employer nevertheless maintained its position that a 7-day suspension was an appropriate disciplinary response to its findings on the remaining allegations.

20This decision will first address the employer’s position that Mr. Lawrence has failed to make out a prima facie case that he has been the victim of discrimination and that this part of his complaint should be dismissed.

Racial Discrimination – Prima Facie Case

21In Peel Law Association v. Pieters 2013 ONCA 396, the Ontario Court of Appeal set out the three elements that are required to establish a prima facie case of a violation of the Ontario Human Rights Code:

1. That he or she is a member of a group protected by the Code;

2. That he or she was subjected to adverse treatment; and

3. That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.

[paragraph 56]

22A prima facie case test involves assessing the evidence that, assuming it is true or could be proven, would establish the claim of discrimination. A prima facie case of discrimination sets out facts that cover the allegations made and which would justify a finding of discrimination in the absence of a satisfactory answer from the respondent. The overall burden of proof remains on the complainant. However, a respondent facing a prima facie case now bears an evidentiary burden and must call evidence to provide an explanation and avoid an adverse finding. The Court of Appeal in Pieters put it this way, starting at paragraph 73 of its decision:

In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively "little affirmative evidence" is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.

If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent's evidence is false or a pretext.

23In this case, the essence of Mr. Lawrence’s complaint is that he experienced discriminatory and improper treatment because the employer investigated his behaviour at work, namely his late arrival and use of the gym during working hours. He alleges that he was targeted because of his race and that he was singled out and punished unfairly for behaviour that, he says, is common in the workplace.

24The evidence establishes that the employer began its investigation into Mr. Lawrence’s behaviour after it received a written complaint from one of his co-workers. The complaint was submitted as an Occurrence Report (OR), an official form used by the Ministry of the Solicitor General that must be signed and dated. This OR was dated January 30, 2024 and it was signed and submitted by one of Mr. Lawrence’s co-workers. The complaint said the following:

. . . . I have had issues with Staff Sergeant Lawrence, and . . . I have tried multiple times to correct the issues on my own with no avail. The issues are now affecting and upsetting other staff members, resulting in work not being completed and or, piling up or being off loaded onto other staff members. The incomplete work has been mentioned in multiple morning staff meetings and the blame put onto other staff. . . .One of the problems is he spends a lot of time in the gym, some days multiple times and does not respond to any calls from the PA system or handheld radios and then still takes a long break to pick up food. Combine this with his lateness reporting to the OPS centre it is directly affecting the work assigned to his position hench [sic] offloading work or it not being accepted. Sure, other staff members are using the gym, but it is not affecting other members or work being completed. SGT Lawrence always seems to have an answer to whatever I question so he is correct in his own mind, but it’s time to move forward on this.

25DS Santos, the Deputy Superintendent at TSDC, received the OR and, after consulting with Employee Relations, assigned DSO Williamson, the Deputy Superintendent of Operations at TSDC, to investigate the concerns about Mr. Lawrence’s behaviour.

26Among the records that the employer reviewed during its investigation were Mr. Lawrence’s work schedule, sign-in sheets, swipe card data, CCTV recordings of his movements in the facility, and overtime sheets. These records led the employer to formulate four of the five formal allegations, which were set out in the May 22, 2024 Notice of Allegation from DSO Williamson (see above) and need not be repeated here.

27At the hearing, Mr. Lawrence attempted to cast doubt on the accuracy of these records. However, he called no evidence to undermine their probative value or cast doubt on what they showed. In fact, the records showed that there had been multiple instances in which he arrived late for work, signed timesheets that did not reflect his late arrival, signed overtime sheets even though he had spent part of the overtime shift in the gym, and left the institution without signing out for unpaid breaks. In other words, the employer’s records showed that the behaviour about which Mr. Lawrence’s co-worker had complained was actually a problem. In other words, the complaint was not frivolous.

28At the hearing, it was clear that Mr. Lawrence had become aware of the identity of the co-worker who had filed the complaint. Mr. Lawrence testified that he had few dealings with this co-worker, who, he argued, would therefore not have been in a position to know Mr. Lawrence’s whereabouts in the institution or whether he was not doing his fair share of work. However, Mr. Lawrence presented no evidence to show that the co-worker who submitted the OR did so for discriminatory or bad-faith reasons. Mr. Lawrence may feel that his behaviour at work was none of his co-worker’s business, but there is nothing improper about coming forward with concerns on behalf of others, which is precisely what the OR says. In any event, the complaint was simply the starting point for the employer’s further inquiries, and based on its review of its records the complaint turned out to be justified.

29Next, very soon after DSO Williamson spoke to Mr. Lawrence about his late arrival at work and his use of the gym during working hours, Mr. Lawrence adopted a hostile and aggressive posture towards the employer’s inquiries. He sent a lengthy email to DSO Williamson, accusing him of targeting him and deliberately attempting to “humiliate, harass, emotionally abuse me by plotting and engaging in systematic and frequent workplace targeting.” He also said, “I have frequently received repeated less favorable treatment from you, which I considered unreasonable and inappropriate workplace practice, principle and ethics.” However, other than repeatedly expressing his disdain that DSO Williamson, who was acting on the employer’s behalf and at the direction of DS Santos, was looking into his late arrival and gym use, Mr. Lawrence called no evidence of any other dealings he had had with DSO Williamson that could have substantiated these very serious allegations.

30Mr. Lawrence also alleges that it was discriminatory and unfair of the employer to have investigated his behaviour at work and not that of any of his co-workers, who, he says, also arrived late for work and signed timesheets that did not reflect their late arrival, used the gym when they were supposed to be on duty, and left the institution without signing out for unpaid breaks. However, at every stage of the employer’s investigation, and most notably during the Allegation Meeting, which Mr. Lawrence knew was his formal opportunity to respond to the employer’s concerns before a final decision was made about the consequences of his behaviour, he offered no particulars to substantiate his position. He had already submitted two ORs in response to the employer’s inquiries about his late arrival and gym use, neither of which gave any information about his co-workers that could have given the employer something to go on. Notably, in the second OR, Mr. Lawrence adopted the same hostile and aggressive posture that he showed in the lengthy email that he sent to DSO Williamson, accusing him of deliberately attempting to humiliate and harass him.

31In any event, the Board has often noted that correctional facilities, including TSDC, are textbook examples of continuous operations which are staffed around the clock, every day of the year. There are many different work schedules, and employees are often present on overtime shifts. The mere presence of one’s co-workers in the gym at any given time does not support Mr. Lawrence’s position unless it can be shown that these co-workers were supposed to be on duty and being paid by the employer at that time, which is what the employer’s investigation into Mr. Lawrence’s behaviour revealed about him.

32At the hearing, Mr. Lawrence finally mentioned the names of some of his co-workers who, he alleged, had also used the gym at the same time he did. However, he disclosed this information nearly one and a half years after the time period that the employer had been investigating (December 2024 and January 2025), by which time all of the necessary records to show what has been clearly demonstrated in Mr. Lawrence’s case (sign-in sheets, swipe card data, CCTV recordings) were no longer available.

33The witnesses called by Mr. Lawrence testified about their own experiences in the workplace and speculated as to whether race played a role in Mr. Lawrence’s treatment. While the Board does not dispute that racial discrimination exists, the witnesses’ evidence was vague and impressionistic, and it does not assist Mr. Lawrence in demonstrating a prima facie case that the employer’s actions towards Mr. Lawrence in this particular case were discriminatory or otherwise improper.

34The hearing was Mr. Lawrence’s opportunity to call the evidence necessary to support a prima facie case that, assuming that evidence to be true or that it could be proven, would establish the claim of discrimination. Having carefully considered all of the evidence, I find that the Employer's treatment of Mr. Lawrence at all times relevant to the determination of this matter was free from any unfairness, bad faith, or discrimination. Specifically, I find that the employer’s decision to investigate the concerns about Mr. Lawrence’s behaviour in the workplace was free of any unfairness and bad faith, and entirely free of the taint of discrimination. I also find that there is insufficient evidence to support a prima facie case that any of the steps that the employer took after it discovered that Mr. Lawrence had been arriving late for work and signing timesheets that did not reflect his late arrival, signing overtime sheets when he had spent part of the overtime shift in the gym, leaving the institution without signing out for unpaid breaks, and sending an inappropriate and unprofessional email to the Deputy Superintendent who was investigating these and other related matters, including the 7-day disciplinary suspension that he received, were free of any unfairness and bad faith, and entirely free of the taint of discrimination.

35Having concluded that Mr. Lawrence did not marshall a prima facie of discrimination, the Board now turns to the issue of whether the employer has met the onus to show that it had just cause to discipline Mr. Lawrence and, if so, that the level of discipline that he received was appropriate. Some of the evidence that is relevant to this determination is set out above, and the remaining relevant evidence is summarized below.

Evidence

Allegation 1 (Reporting Late for Duty)

36DS Santos testified that after reviewing Mr. Lawrence’s work schedule, sign-in sheets, swipe card data, and CCTV recordings or Mr. Lawrence’s movements in the facility, it was determined that he was late reporting for duty on 9 dates in December 2023 and January 2024. Mr. Lawrence is expected to report for duty at the General Duty Manager’s office, and on most of the days in question he arrived at a security point which is near the office between 20 and 25 minutes after the start of his scheduled shift. The earliest he reported was 14 minutes late and the latest was 45 minutes late.

37DS Santos testified that all Staff Sergeants are expected to report for duty on time. Arriving late can interfere with being properly briefed at the start of one’s shift and cause frustration among staff whose shifts are ending. It can cause uncertainty and disruption in staffing, delay regularly scheduled programming, and create problems in supervision and delegation. DS Santos commented that Staff Sergeants should be reporting for duty 15 minutes before the scheduled start of their shift so that they can be thoroughly briefed and to ensure an orderly transition. Reporting late for duty can cause serious problems for the institution, and it demonstrates a lack of leadership and professionalism that is expected at the Staff Sergeant level.

38Reporting late for duty can sometimes be excused, DS Santos said, for example, due to car trouble or a family emergency, and exceptions can be made for arriving a few minutes late on a case-by-case basis. However, in Mr. Lawrence’s case, the records show a habitual problem of arriving late by roughly 20 minutes or more, which falls well below the employer’s expectations.

39In cross-examination, DS Santos was challenged about the expectation that Staff Sergeants should be reporting for duty before the scheduled start of their shifts. He was also pressed to agree that a Staff Sergeant has reported for duty once they arrive on the property rather than at the General Duty Manager’s office. DS Santos remained firm in his testimony on these points.

40DS Santos was also challenged about the reliability of the information that was used to determine that he had reported late, particularly the swipe card data and the time stamps on the CCTV recordings. Mr. Lawrence questioned whether these times were different from the time shown on the clocks in the institution, and DS Santos testified that to the best of his knowledge, these were synchronized. DS Santos agreed that these times could be different from the time shown on someone’s watch, and noted that the employer goes by the institution’s time records.

41Mr. Lawrence testified that his manager, DSO Armstrong, never spoke to him about his work performance or told him that his late arrival at work was a problem. If his lateness had been a concern, it would have been addressed at the time by the Staff Sergeant on duty at the command centre, which it was not. He said that it is not unusual for staff to arrive 10-15 minutes late and that a grace period is standard.

42Mr. Lawrence testified that he considered himself to be at work and on duty as soon as he entered the institution. It was not correct to say that he only arrived for work when he reached the General Duty Manager’s office, he asserted.

Allegation 2 (Fraudulent Signing of Time Sheets when Reporting Late for Duty)

43DS Santos testified that after reviewing the records for the first allegation together with the sign in sheets for the dates in question, it was determined that on 5 occasions Mr. Lawrence’s had signed time sheets showing that he had reported for work on time when he had not. The time difference between when he signed in and when he arrived at the security point near the General Duty Manager’s office was around 15 minutes and on one occasion 25 minutes.

44DS Santos testified that not only did this fall well below the employer’s expectations for reporting for duty on time, sign-in sheets are legal documents that become important if there is an incident or an emergency. Placing one’s signature next to an inaccurate time can have serious repercussions. Signing that one was on duty when one was not was also not truthful and called into question Mr. Lawrence’s honesty, said DS Santos.

45In addition to the points covered in his questions about the first allegation, Mr. Lawrence noted that his pay had not been adjusted for the dates he had reported late, particularly the dates when he was accused of fraudulently signing the sign-in sheet. He asked DS Santos whether it was possible that the Staff Sergeant in the Command Centre had therefore approved his late arrival. DS Santos replied that this was possible, although he noted that it would be very unusual for so many late arrivals to be approved when they were not simply “rounding errors” and involved more than a few minutes. He also noted that Mr. Lawrence had not raised this as a possible explanation in the allegation meeting, so the employer did not have an opportunity to make inquiries about it.

46Mr. Lawrence testified that his pay was never adjusted to reflect the times that he arrived late. He noted that on some of the dates where he signed in after the start of his scheduled start time, no time was deducted from his pay. In other words, when he actually signed in late, there was no adjustment made in the payroll computer to reflect this. He testified that to him, this means that reporting times are rounded off and that a grace period is standard practice in the institution.

Allegation 3 (Fraudulent Signing of Overtime Sheets)

47DS Santos testified that after reviewing the records, particularly the swipe card data and CCTV recordings for the changeroom and gym as well as the relevant overtime sign-in sheets, it was determined that Mr. Lawrence had claimed and been paid for overtime when he was not working. He was, according to the employer’s information, in the gym. On some days, Mr. Lawrence was in the gym for more than half of his scheduled overtime shift, said DS Santos.

48DS Santos explained that overtime shifts are offered and can be accepted or declined. Once accepted, one is expected to report for duty as one would for a regular shift. Overtime shifts are offered to cover a vacancy in the unit or a need on the floor. Not, said DS Santos pointedly, to go to the gym. Breaks, paid and unpaid, can be taken during downtime or slow periods, separately or combined, and Staff Sergeants are expected to manage their time based on workload and operational requirements. However, work schedules and other institutional requirements are such that breaks are not to be taken at the start of a shift, nor can one leave early and claim that as break time.

49DS Santos testified that Mr. Lawrence’s use of the gym when he was supposed to be on duty working an overtime shift raised all of the concerns noted for Allegations 1 and 2. In addition, Mr. Lawrence was not where he was supposed to be in the institution, making it difficult to contact him and communicate with him. He was not at his post, which can cause serious problems if there is an incident or an emergency. Staff Sergeants are expected to model appropriate behaviour, and this sets a very poor example. It demonstrates a significant lack of leadership and professionalism, which is expected at the Staff Sergeant level.

50DS Santos noted that although it should have been obvious to Mr. Lawrence that using the gym when he was supposed to be on duty working an overtime shift was contrary to many of the employer’s Policies and Procedures, a memo had been issued to all staff in July 2021 when the gym had reopened towards the end of the COVID-19 pandemic. The first bullet point of the memo says, “The staff fitness centre may only be utilized outside of paid working hours (i.e., before or after a shift).”

51In cross-examination, DS Santos was questioned extensively on why he [Mr. Lawrence] was singled out for investigation about his gym use when many of his co-workers also used the gym during working hours. DS Santos remained firm in his evidence that the employer was acting on the January 30, 2024 OR and that it took all such complaints at face value.

52DS Santos was asked why, if there had been concerns about his [Mr. Lawrence’s] performance, DSO Williamson was investigating the matter and not his Manager, DSO Armstrong. DS Santos replied that he had received the OR and delegated the investigation to DSO Williamson, noting that the complaint was not about the quality or completeness of Mr. Lawrence’s work, but about his arriving late to work and using the gym when he was supposed to be at his post.

53DS Santos was questioned about another memo issued to staff on May 12, 2022, regarding the reopening of the gym. It was pointed out to DS Santos that the memo listed the hours that the gym would be open (0400 to 1100 and 1200 to 0000 daily), but said nothing about not using the gym during paid working hours. DS Santos replied that the memo primarily addressed the gym's reopening after the COVID-19 pandemic and focused on safety and hygiene. He added that it should have been obvious that staff are not to use the gym when they are being paid to work, particularly when they are being paid to work an overtime shift.

54Mr. Lawrence testified that he only used the gym when he was on a legitimate break. He is not the only one who uses the gym during the day – many of his co-workers do so as well. He was using the gym to stay healthy and relieve stress. Several crises were happening in his family at the time, and the employer was aware of this.

Allegation 5 (Inappropriate and Unprofessional Email)

55DS Santos testified that he discussed this email with DSO Williamson shortly after receiving it. DS Santos noted that Mr. Lawrence used an aggressive tone and accused DSO Williamson of abuse, harassment, and systemic targeting. DS Santos said the email showed disrespect toward a co-worker who was simply performing his duties —namely, conducting an investigation —which the employer has the right to do. All staff are expected to be respectful and cooperate with any investigation, and Mr. Lawrence’s email shows neither. DS Santo drew the Board’s attention to the following parts of the email that caused particular concern:

In response to your request for more information regarding my use of the fitness room, I did acknowledge that I use the fitness room like all other employees, which is evidenced by their swipe access to the gym and CCTV.

In your summation, you have use accusatory and microaggression words to suggest and implied that I have done something grossly inappropriate in the workplace meanwhile a lot of employees use the gym without investigation or consequences.

With all due respect, without feel there is a campaign out to get me for something, because I have a outspoken personality. I feel paranoid in the workplace every day. No matter what i do there is always some reprisal out there for me.

I am being targeted and there is deliberate attempt to humiliate, harass, emotionally abuse me by plotting and engaging in systematic and frequent workplace targeting.

I am not sure why you are targeting me! but it is evident that this is personal otherwise every time you have tracked using camera in the gym you would see that others are all using the facility; if it were not allowed? Why is everyone not addressed? why only me?

I have frequently received repeated less favorable treatment from you, which I considered unreasonable and inappropriate workplace practice, principle and ethics; includes but not limited to me being singled out for being late for work, using the gym, and or taking breaks for lunch which many of the employees and administrators do; especially the ones that continuously take smoke breaks.

I feel fear that you have taken a willfully blind approach to others, using the gym, reporting late for work, and taking lunch break, while trying to persecute me for the same things you have overlooked.

I find you have used your institutional and leadership powers to intimidate, offend, degrade, or humiliate me. I am only asking to be treated equally in the workplace.

56DS Santos also noted that if Mr. Lawrence felt that he was being harassed or discriminated against, he could have filed a complaint under the employer’s WDHP program, and if he felt that his co-workers were using the gym when they should have been at their posts, he could have submitted an OR with that information, neither of which Mr. Lawrence did.

57Mr. Lawrence testified that during the Allegation Meeting, he had apologized for the message. He said that he felt he had been attacked and that he had to defend himself, and that the message reflected how he was feeling at the time. He said that he did not intend the message to be an attack on DSO Williamson.

Allegation Meeting and Disciplinary Suspension

58The Allegation Meeting was held on May 29, 2024. DSO Williamson and DSO Armstrong (Mr. Lawrence’s Manager) attended for the employer. Mr. Lawrence attended with a support person. DS Santos did not attend the meeting but testified about it based on the detailed notes that were taken by DSO Armstrong, and which Mr. Lawrence agreed were an accurate record of the proceedings.

59DS Santos testified that Mr. Lawrence’s response to the allegations was to challenge the credibility and accuracy of the records, including the swipe card data and CCTV recordings. DS Santos said that there was no basis for these comments, and that the employer had shown that Mr. Lawrence was not in compliance with the workplace rules and protocols about attendance, gym use, and claiming overtime. Mr. Lawrence also talked about being harassed and targeted, which was untrue, because the employer was simply acting on information that had come to its attention, namely the January 30, 2024 OR, which had expressed concerns about Mr. Lawrence’s attendance and conduct at work that had proved to be justified based on the employer’s records. Overall, Mr. Lawrence was dismissive of the employer’s concerns. He showed no remorse and was not receptive to acknowledging his misconduct, said DS Santos.

60DS Santos testified that all of these factors and many others were considered when the appropriate disciplinary response was discussed and determined. This took place in a call that happened on July 2, 2024 that he, DSO Williamson, the Superintendent of TSDC, the Regional Director, and an Employee Relations Advisor attended. The other considerations included the seriousness of the allegations, the nature of Mr. Lawrence’s duties and responsibilities, namely his role as a Staff Sergeant, his seniority, his work history including previous discipline, and other outcomes in similar situations. Many responses were discussed and considered, but it was decided, based on all of the relevant considerations, that a 7-day disciplinary suspension was appropriate. [Note: as indicated above, the employer took the position at the hearing that it would not dispute Mr. Lawrence’s assertion that he had no previous discipline.]

61DS Santos was cross-examined extensively on many points. Most of these are set out above and need not be repeated. He was also asked whether he was aware of other staff at the institution arriving late for work, not signing in or out at precisely the correct time, rounding off arrival and departure times, and using the gym during working hours. He replied that he was, repeating that the employer took action, up to and including discipline, on a case-by-case basis, as information about these matters came to its attention.

62DS Santos was asked why the employer had acted on a complaint [the January 30, 2024 OR] that appeared to have been filed by an employee that Mr. Lawrence did not work with directly and who is unlikely to have known whether Mr. Lawrence’s attendance and behaviour was having any impact on his work. He was also asked why the employer had acted on a complaint that had been filed not with Mr. Lawrence’s manager but with someone else. DS Santos replied that the employer takes all complaints at face value and deals with them on a case-by-case basis. He noted that the author of the January 30, 2024 OR had approached him, and that he had asked for an OR. He added that if the complaint had turned out to be frivolous, it would not have moved forward to an Allegation Meeting, but this was not the case, because the employer’s records showed that it was justified.

Submissions of the Parties

The Employer

63The employer’s position is that Mr. Lawrence’s conduct warranted a disciplinary suspension of 7 days. He repeatedly arrived late for work and also signed that he had arrived on time. He spent time in the gym when he was supposed to be working overtime shifts. These are the facts that were uncovered after the employer received an OR from one of Mr. Lawrence’s coworkers on January 30, 2024.

64The employer did not set out to target Mr. Lawrence, nor did it single him out for unfair treatment. The employer received an OR that complained about Mr. Lawrence’s behaviour at work. The employer took these concerns at face value, as is its standard practice, and DS Santos directed DSO Williamson to make further inquiries, which he did. There is no taint around the investigation, the employer’s records, including Mr. Lawrence’s work schedule, sign-in sheets bearing his signature, swipe card data, CCTV recordings of Mr. Lawrence’s movements in the facility, and overtime sheets, also bearing Mr. Lawrence’s signature, showed that the co-worker’s complaint about Mr. Lawrence was justified.

65When asked to explain his behaviour, Mr. Lawrence deflected, denied, and accused others of targeting him and singling him out for unfair treatment. He showed a lack of contrition and would not admit that he had made mistakes and that what he had done was improper and fell short of the employer’s expectations. It was, in any event, misconduct that was contrary to many provisions of the Ministry’s Policies and Procedures and warranted discipline.

66As to the matter of the employer no longer pursuing Allegation 4 (departing the institution without signing out for unpaid breaks on 12 dates in December 2023 and January 2024) and the discovery that the employer had been under the mistaken impression that there was previous discipline on Mr. Lawrence’s file, the employer argued that Mr. Lawrence’s use of the gym at the time he was supposed to be on duty and being paid to work an overtime shift, and then signing a time sheet that was clearly inaccurate warrants a lengthy disciplinary suspension.

67Finally, the employer submits that the Board has consistently held that supervisors and managers, including Staff Sergeants, in a correctional facility are held to a higher standard of conduct than the staff they supervise. They are expected to show good judgment and a high degree of commitment to following policies and procedures. There is also an expectation that they will perform a modelling role in leading by example.

68A Staff Sergeant is expected to demonstrate leadership and fulfill their duties with integrity and professionalism at all times, often with little or no monitoring or supervision. They are expected to set the standard for and lead others, including leading by example. With greater responsibility and authority come higher expectations, which in turn come with a high level of accountability.

69In this case, Mr. Lawrence breached the Ministry’s Policies and Procedures and fell short of the employer’s expectations for Staff Sergeants, and his behaviour warrants the 7-day disciplinary suspension that he received.

Mr. Lawrence

70Mr. Lawrence says that he has never neglected his duties or failed to complete his assigned work. As a Staff Sergeant, he is required to manage his own schedule, including the timing of his lunch and other breaks, and he has some leeway in the time he reports for work. He submits that if there had been a concern about the time he arrived at work and signed in, the Staff Sergeant on duty would have spoken to him, and his pay would have been adjusted to reflect a late arrival, yet neither of these things happened.

71Mr. Lawrence concedes that he sometimes uses the gym during work hours, but only during his “downtime” and that he manages his time appropriately. He also says that he uses the gym to stay healthy and relieve stress, which the employer encourages. Many of his colleagues use the gym during working hours, but he was singled out. He adds that he was experiencing a family crisis around the same time, and that the employer was aware of this because he had been given permission to carry his personal cellphone at work in case his family needed to reach him urgently.

72Mr. Lawrence adds that the co-worker who complained about him and submitted the January 30, 2024 OR was not in a position to know about his whereabouts or his work performance, and that he has been unfairly targeted. He questions why the co-worker submitted the OR directly to DS Santos rather than to DSO Williamson, the co-worker’s manager, or to his own manager, DSO Armstrong. He adds that DSO Armstrong never spoke to him about any performance issues or told him that he had failed to complete his work.

73Mr. Lawrence asserts that the investigation into his behaviour was procedurally flawed, that the employer is selectively enforcing its policies, and that he has been the victim of racial bias and unequal treatment. Specifically, he notes that the employer took no steps to investigate his co-workers' gym use during working hours and failed to preserve CCTV footage that would have shown his co-workers doing the same thing he is accused of doing.

74Mr. Lawrence submits that the employer has failed to follow its own progressive discipline policy. He says he was never given a warning about his behaviour and that the employer moved directly to a 7-day suspension, which was unduly harsh and unfair.

Analysis and Findings

75The issue for the Board to determine is whether the employer had just cause to discipline Mr. Lawrence and, if so, whether the level of discipline he received was appropriate. As in all cases involving discipline matters, the employer bears the onus of proof on a balance of probabilities.

76The main problem with the employer’s case is that two important elements supporting its decision that Mr. Lawrence’s behaviour warranted a 7-day suspension are no longer present. First, Allegation 4, namely that on 12 dates in December 2023 and January 2024, he departed the institution without signing out for his unpaid break, has been withdrawn. Second, the employer had been under the mistaken impression that there was previous discipline in Mr. Lawrence’s file. These developments undermined the employer’s position that a 7-day suspension without pay remains an appropriate disciplinary response.

77First, while Allegation 4 was perhaps not the single most serious element in the August 14, 2024 letter of discipline, the concern that Mr. Lawrence had left the institution for his unpaid break on 12 occasions without signing out is by no means insignificant. In the Allegation Letter, the employer took the position that this was contrary to a host of Ministry Policies and Procedures, and while many of the specific sections for this breach were already listed under Allegations 1-3, Allegation 4 lists several that are not mentioned anywhere else. In other words, removing Allegation 4 also removes several of the listed Policies and Procedures that Mr. Lawrence is alleged to have breached from the landscape. There were also 12 dates listed for when Mr. Lawrence is alleged to have left the institution for his unpaid break without signing out, whereas Allegations 1-3 list only 4 or 5 dates each.

78As a result, I find that removing Allegation 4 from the elements that supported the employer’s decision that Mr. Lawrence’s behaviour warranted a 7-day suspension seriously, but not irreparably, undermines the employer’s case that the level of discipline that he received was appropriate.

79Second, and more troubling, is the discovery that the employer had been under the mistaken impression that there was previous discipline in Mr. Lawrence’s file. When an employee with a record of discipline commits an offence that warrants discipline, it is expected that an employer takes the overall record into account when assessing the appropriate penalty for the most recent incident. An employer may be justified in increasing the severity of its response (e.g., imposing a lengthier disciplinary suspension) than the most recent act may otherwise warrant if there is a record of previous discipline.

80In this case, the employer believed Mr. Lawrence had a record of previous discipline when imposed the 7-day suspension without pay. DS Santos testified that it was one of the factors considered when the appropriate disciplinary response was discussed and determined during the July 2, 2024 call, which he, DSO Williamson, the Superintendent of TSDC, the Regional Director, and an Employee Relations Advisor attended. However, the employer should have approached the matter on the basis that Mr. Lawrence had no prior disciplinary record.

81As a result, I find that removing the factor of previous discipline from the elements that supported the employer’s decision that Mr. Lawrence’s behaviour warranted a 7-day suspension also seriously, but not irreparably, undermines the employer’s case that the level of discipline that he received was appropriate.

82This leaves the Board to determine whether Allegations 1, 2, 3, and 5 warrant a disciplinary response and, if so, whether a 7-day suspension without pay is appropriate.

83The 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 judgment 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.

84Allegation 1 is that Mr. Lawrence arrived late for work on 9 occasions in December 2023 and January 2024; Allegation 2 is that he signed timesheets that did not reflect his late arrival on 5 of those dates. On most of the days in question, he arrived at a security point near the office between 20 and 25 minutes after the start of his scheduled shift. The earliest he reported was 14 minutes late, and the latest was 45 minutes late. The evidence was mixed as to whether one’s arrival at the security point, which is near the office, is the appropriate place to judge the time of his arrival, as was the evidence about whether there is an accepted practice in the workplace to “round off” arrival times and if so, what falls within an acceptable margin. In any event, these incidents occurred at a time when Mr. Lawrence was experiencing a particularly acute period of stress due to family matters, and some consideration must be given to his particular circumstances.

85Considering all the relevant factors, including his length of service and having no previous discipline, this would likely merit a letter of warning. However, when the employer expressed concern about his repeated late arrivals and presented him with irrefutable evidence to substantiate the allegation, he adopted a hostile, aggressive posture, which he maintained at the Allegation Meeting and beyond. He failed to acknowledge that his behaviour posed a problem, demonstrating a lack of receptiveness and an unwillingness to reform. This is an aggravating factor which weighs in favour of a more serious response. As a result, Allegations 1 and 2, taken together, merit a 1-day disciplinary suspension without pay.

86Allegation 3 is that Mr. Lawrence signed overtime sheets when he had spent part of the overtime shifts in the gym. This happened on 4 dates in December 2023 and January 2024; on one date, Mr. Lawrence was scheduled for 2 overtime shifts and spent time in the gym during both. Moreover, the time he spent in the gym while the employer was paying him for an overtime shift was not immaterial, usually between 30 and 40 minutes.

87Mr. Lawrence’s position is that “everyone else was doing it too” so why should he be singled out? Even if one accepts Mr. Lawrence’s evidence that his co-workers also used the gym, the mere presence of one’s co-workers in the gym at any given time is not helpful to his position unless it can be shown that these employees were also supposed to be on duty and being paid by the employer at that time, and that they had also signed timesheets reflecting the wrong time, which is what the employer’s investigation into Mr. Lawrence’s behaviour revealed. As noted above, Mr. Lawrence failed to take any steps or provide the employer with information it could have used, such as the names of his co-workers and the dates and times they were supposedly using the gym while being paid to work an overtime shift, to substantiate his response.

88Considering all the relevant factors, including his length of service and having no previous discipline, Allegation 3 would likely merit a 1-day suspension. However, when the employer expressed concern about this and presented him with irrefutable evidence to substantiate the allegation, he adopted a hostile, aggressive posture, which he maintained at the Allegation Meeting and beyond. He deflected, denied, and accused others of targeting him and singling him out for unfair treatment. He failed to acknowledge that his behaviour presented a problem, showing a lack of receptiveness and an unwillingness to reform. This is an aggravating factor which weighs in favour of a more serious response. As a result, Allegation 3 merits a 2-day disciplinary suspension without pay.

89Allegation 5 is that Mr. Lawrence sent an inappropriate and unprofessional email to DSO Williamson on February 8th, 2024. The email showed disrespect toward a co-worker who was simply performing his duties —namely, conducting an investigation, which the employer has the right to do. However, Mr. Lawrence apologized for this in the May 22, 2024 Allegation Meeting. He therefore acknowledged that his language was a problem and showed contrition. In any event, to the extent that he has continued to deflect, deny, and accuse others of targeting him and singling him out for unfair treatment, and maintain a hostile and aggressive posture towards the employer (as opposed to DSO Williamson personally) this has been taken into account in the assessment of the appropriate level of discipline for Allegations 1, 2, and 3.

Summary and Disposition

90Mr. Lawrence’s behaviour warranted a disciplinary response, and for all of the reasons set out above, a 3-day suspension without pay is appropriate for Allegations 1, 2, 3 and 5 in light of all of the relevant considerations. The Board directs the employer to reduce Mr. Lawrence's 7-day suspension to 3 days, amend all records accordingly, and reimburse Mr. Lawrence for the difference.

91The Board remains seized should there be any issue arising from the implementation of the terms of this decision.