FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Before the termination of her employment, Melissa McKenzie (“the grievor”) was employed as a correctional officer (classified CX-01) with the Correctional Service of Canada (CSC) at Warkworth Institution. Her employment was terminated effective December 13, 2006, because she forged her doctor’s signature on nine medical certificates (“Physician’s Certificate of Disability for Duty”).

2 On December 14, 2006, she filed a grievance, which was referred to adjudication on June 4, 2007 and in which she requested the following corrective action:

…

I request immediate reinstatement, removal of all records of this discipline from my files, reimbursement for all monies lost, including all lost overtime opportunities, statutory holiday pay and shift premiums, and I request all other rights that I have under the Collective Agreement and the Canadian Human Rights Act, as well as all real, moral or exemplary damages, to be applied retroactively with legal interest without prejudice to other acquired rights.

…

3 Both parties made brief opening remarks. Counsel for the CSC (“the respondent”) called 3 witnesses and filed 16 exhibits. The grievor’s representative called two witnesses, along with the grievor, and filed three exhibits. Counsel for the respondent requested that the witnesses be excluded from the hearing until they were called to testify, and I granted his request.

4 On consent, the parties filed the nine medical certificates (Exhibits E-1A to E-1I). The parties advised me that some of the dates that the grievor had indicated on the medical certificates were inaccurate and that the correct dates of her absences are July 2, 15, 17, 25 and 31 and August 4, 9, 18 and 21, 2006. Note that each day of absence represents an eight-hour shift.

II. Summary of the evidence

A. For the respondent

5 From March 2005 to December 2009, Monty Bourke was the warden at Warkworth Institution. He stated that Warkworth Institution is a medium-security facility and that, when he was the warden, there were approximately 600 male inmates, 330 employees, of which 196 were correctional officers, and 6 deputy and assistant wardens.

6 Mr. Bourke stated that the grievor began working at Warkworth Institution on June 10, 2002, as a term employee and that, on August 29, 2003, she accepted an indeterminate appointment as a correctional officer at the CX-01 group and level.

7 Mr. Bourke testified that, on October 26, 2006, during a monthly attendance awareness interview with her unit manager, Jill Clarke-Davis, and her supervisor, Carole Desjardins, the grievor admitted that she had forged her doctor’s signature on a number of medical certificates. Ms. Clarke-Davis immediately ended the interview and contacted the acting deputy warden, Michelle Bridgen,whothen informed Mr. Bourke.

8 On November 14, 2006, Mr. Bourke directed Ms. Clarke-Davis and Jennifer Guerin, an acting correctional supervisor, to conduct a “Disciplinary Fact Finding Investigation” to determine the authenticity of the doctor’s signature on the medical certificates. He also directed them to submit written and electronic reports of their findings by no later than November 28, 2006. That same day, he sent a memo to the grievor to inform her that he had directed Mses. Clarke-Davis and Guerin to conduct a fact finding investigation. In addition, he suggested that she might want to contact her bargaining agent representative. Since the grievor objected to having Ms. Clarke-Davis involved based on her perception that there might be a conflict of interest, Mr. Bourke appointed Ms. Bridgen to replace Ms. Clarke-Davis.

9 On December 8, 2006, Mr. Bourke received the “Fact Finding Investigation Report” (Exhibit E-5). He stated that he accepted all its findings, which read as follows:

FINDINGS

As outlined in CD 001 “Mission of the Correctional Service of Canada” all staff shall abide by:

Ethical Values

• These involve continually striving to earn public trust by abiding by our legal mandate and putting the common good ahead of personal advantage. Abiding by such values involves such characteristics as integrity, honesty, impartiality, fairness, objectivity, the courage to speak truth to power, selflessness, the willingness to take responsibility and to be accountable, probity, respect for the law and careful management of public resources.

In addition to this CD 001 also states that:

13. Employees shall be responsible for:

1. acting in accordance with the behavioural expectations as described in the Standards of Professional Conduct and the Code of Discipline;
2. making appropriate decisions based on CSC’s Values Framework; and
3. bringing forward instances of inappropriate behaviour.

COI MCKENZIE’s actions display a blatant disregard for the public trust and brings into question the characteristics that are an integral part of the Mission of the Correctional Service of Canada. She admitted that she had forged her doctor’s notes and thereby acted inappropriately.

As outlined in Code of Discipline, COI MCKENZIE has by her own admission breached the following areas:

Standard One “Responsible Discharge of Duties”

Infractions

An employee has committed an infraction, if he or she:

Fraudulently seeks to obtain, or fraudulently obtains documentation required for approval of leave of absence for duty;

COI MCKENZIE admitted that she had forged her doctor’s notes:

COI MCKENZIE could not supply any reason for signing her own doctor’s notes. She did indicate that she generally leaves copies of doctor’s notes with her doctor and he signs them as she needs them.

COI MCKENZIE did have a doctor’s appointment booked for October; however chose to sign her own slips as she felt pressured to get the slips in as soon as possible. When questioned as to why she would not have told her Supervisor that it [sic] she could not get in to see her Doctor immediately but did have an appointment booked for October, she indicated that she hadn’t thought of that.

A copy of the report was given to the grievor, also on December 8, 2006.

10 Mr. Bourke then advised the grievor that she was required to attend a disciplinary hearing in his office at 09:00, on December 12, 2006, and that she was entitled to have a representative present. She was asked to review the “Fact Finding Investigation Report” and to submit any comments, preferably in writing, at the disciplinary hearing. The disciplinary hearing took place as scheduled. Also in attendance were Ms. Bridgen, Mr. Bourke’s assistant, who recorded the proceedings, and Mike Boyd, the grievor’s representative.

11 Mr. Bourke first explained the purpose of the disciplinary hearing. He then asked the grievor if she had reviewed the “Fact Finding Investigation Report,” and she confirmed that she did. When he asked her if there were any inaccuracies, she responded that there were none. Although she admitted that forging her doctor’s signature was wrong, she did not explain why she had done so. At the conclusion of the meeting, Mr. Bourke informed the grievor that he would render a decision within 48 hours.

12 The following day, Mr. Bourke advised the grievor that her employment was terminated. In reaching his decision, Mr. Bourke considered mitigating or aggravating factors, previous disciplinary action and the grievor’s performance record, including any commendations or citations that she might have received. The letter of termination (Exhibit E-7), dated December 14, 2006, reads in part as follows:

…

I have carefully reviewed the facts and circumstances in this case, and based on the evidence gathered, and from your own admission, I have concluded that you have fraudulently forged several medical certificates. Moreover, you admitted that you did this knowing it was wrong. In doing so, you have not only committed a serious misconduct, you have also violated the Code of Discipline – Standard One – Responsible Discharge of Duties – as it relates to “fraudulently seeks to obtain, or fraudulently obtains documentation required for approval of leave of absence for duty” and CD 001 Mission of the Correctional Service of Canada – “involving continually striving to earn public trust by abiding by our legal mandate and putting the common good ahead of personal advantage.”

Given the nature and gravity of this incident, coupled with your previous serious misconduct and breach of trust within the last year, I can only conclude that the bond of trust, which is fundamental to the employment relationship, has been irrevocably broken. Moreover, the behavior that you have demonstrated is incompatible with that expected of Correctional Officer [sic] of the Correctional Service of Canada. In reaching my decision, I have given all due consideration to your disciplinary record, your length of service and all other relevant factors.

Accordingly, by virtue of the authority delegated to me by the Commissioner under Section 12 of the Financial Administration Act, you are hereby advised that your employment with the Correctional Service of Canada is terminated effective December 13, 2006.

…

13 Mr. Bourke identified Exhibit E-8 (“Commissioner’s Directive - Code of Discipline”) and Exhibit E-9 (“Commissioner’s Directive 001 - Mission of the Correctional Service of Canada”) as the documents referred to in the letter of termination.

14 Mr. Bourke recalled a previous disciplinary hearing with the grievor on October 12, 2005, as a result of her involvement with an inmate who had been released on “Statutory Release with Residency,” a condition imposed by the National Parole Board. He stated that, when a CSC employee becomes involved with an inmate, the employee is asked to resign or is discharged. This is done because not only is there a fundamental breach of trust between the CSC and the employee, but also the security of the relevant institution is at risk. As a result, the grievor was given a five-day financial penalty. The letter of discipline (Exhibit E-10) reads in part as follows:

…

When determining the level of discipline to be imposed, I must consider all factors. Those factors include violation of CD 001, Mission of the Correctional Service of Canada regarding Ethical Values, violation of the Code of Discipline –Relationship with Offenders, and the violation of Standards of Professional Conduct – Standard Four – Relationships with Offenders. I must also consider mitigating factors and efforts made to correct the inappropriate behaviour.

On review of the mitigating factors which include your declared low self esteem and financial difficulties, you have demonstrated that you are willing to obtain assistance to deal with these and other problems. It is recognized that you are currently receiving counselling for your self esteem and will also follow up on your appointment with a financial advisor. You have also commenced the process of obtaining Assertiveness Training and will be working with Melonee Dowdall at the Staff College to re-affirm the necessary and appropriate professional boundaries when working with inmates. This specific training is to be completed on your own time however, when possible, we will assist with providing a government vehicle.

I have asked Mr. Bruce Somers, Deputy Warden to set up bi-monthly review meetings with you to assist in your return to the regular COI rotation.

Although I view your misconducts as very serious, given all mitigating factors combined with your honest and expressed interest in addressing your problems, I am prepared to limit the disciplinary award to a five day financial penalty.

I truly hope you learn from these errors.

…

15 In cross-examination, when Mr. Bourke was asked what other relevant factors he had considered with regard to the termination, he replied that he had reviewed the grievor’s personal file, her performance evaluation reports, the statements she made at the disciplinary hearing on December 12, 2006, and the representations made by her representative. He noted that her performance evaluation reports were unremarkable since there were no commendations or citations. He stated that his focus was on the forged medical certificates and not on the grievor’s attendance record.

16 When Mr. Bourke was asked if he had considered other disciplinary action, he replied that he had considered a lengthy suspension without pay. However, he concluded that termination of employment was the only option since the grievor was a peace officer, her actions were a criminal offence and this was her second serious misconduct.

17 Carole Desjardins began her employment with the CSC in 1993. In April 2005, she accepted a position as a correctional manager. Ms. Desjardins noted that her duties involve supervising correctional officers and preparing roster schedule assignments and performance evaluation reports. She testified that the grievor reported to her from November 2002 to December 2006.

18 Ms. Desjardins testified that on April 2, 2003, Yvan Thibault, the warden at that time, implemented the “Attendance Awareness Management Program” (Exhibit E-14). The objective of the program was to educate staff on the importance of maintaining a sufficient balance of sick leave credits and to provide a fair and consistent approach to attendance management.

19 Ms. Desjardins testified that, from July 16, 2004, to January 23, 2005, the grievor’s attendance was being monitored since she was having problems reporting for duty. Her attendance was once again being monitored as of November 21, 2005, and she was ordered to submit a medical certificate within five days of every shift that she missed.

20 On August 1, 2006, Ms. Desjardins advised the grievor that she had a number of medical certificates that were overdue and reminded her that she had to submit them within five days of an absence.

21 On October 26, 2006, Mses. Desjardins and Clarke-Davis met with the grievor for a follow-up interview to inquire as to why she had not submitted the overdue medical certificates. In addition, Ms. Clarke-Davis asked the grievor why her doctor’s signature on the nine medical certificates (Exhibits E-1A to E-1I) was different from other medical certificates. She replied that she had forged her doctor’s signature because she was unable to obtain an appointment to see him within the five-day timeframe. Ms. Desjardins immediately ended the interview and advised the grievor to seek bargaining agent representation.

22 That same day, Ms. Desjardins completed an “Attendance Monitoring Intervention Report,” which identified the issues discussed and the action plan.

23 Ms. Desjardins testified that the grievor could submit the medical certificates to her or that she could place them in the unit manager’s mailbox. She noted that she reminded the grievor on a number of occasions that she was required to submit a medical certificate within five days of an absence and that, if she were unable to see her doctor, she could instead go to a clinic or to the hospital.

24 In cross-examination, when Ms. Desjardins was asked if she had completed the grievor’s performance evaluation reports for 2002 to 2006 (Exhibits G-2A to G-2E) and if she had signed the “Attendance Monitoring Report,” she confirmed that she had. She acknowledged that, when the grievor reported to work, she was a good performer.

25 Ms. Guerin testified next and confirmed that Mr. Bourke had directed her to replace Ms. Clarke-Davis on the “Disciplinary Fact Finding Investigation.” She interviewed the grievor on November 20, 2006, in the presence of Ms. Bridgen and Kelly Vollans, the grievor’s bargaining agent representative. The grievor once again stated that she had forged her doctor’s signature because she was unable to obtain an appointment within the five-day timeframe. When Ms. Guerin asked the grievor if she had discussed her problem with her supervisor, the grievor replied that she had not.

26 Ms. Guerin sent the medical certificates to the grievor’s doctor, and he confirmed that he had not signed them.

27 In cross-examination, when Ms. Guerin was asked if, following the interview, the grievor had asked to speak privately with Ms. Bridgen, she replied that she could not recall the grievor making that request.

B. For the grievor

28 Jack Juby has been employed as a correctional officer at the CX-01 group and level at Warkworth Institution for the past 18 years and is currently a shop steward. He testified that he never had a problem working with the grievor and that he would have no difficulty working with her again.

29 Gordon McKenzie-Crowe, a correctional manager, also testified that he would have no difficulty supervising the grievor if she were reinstated. In cross-examination, when asked if he had formally assessed the grievor on an annual basis, Mr. McKenzie-Crowe responded that he had not.

30 The grievor then testified. She stated that, following her five-day financial penalty in October 2005, she began seeing a psychologist since she was under a lot of stress because of a troubled relationship with her boyfriend. She was suffering from low self-esteem, and her doctor prescribed some anti depressants, but she stopped taking them since they were making her nauseous. She stated that after October 2005, she was assigned to mobile posts, which are sought-for posts by correctional officers, and as a result, she felt that her colleagues were looking down on her, which caused her additional stress.

31 The grievor recalled that, sometime after the October 26, 2006, meeting, she met privately with Ms. Bridgen to advise her of the stress that she was under.

32 The grievor testified that she forged the medical certificates on the same day but could not recall the exact date. She explained that she did it because it often took three months for her to get an appointment with her doctor. She noted that, once she had an appointment, her doctor would always sign her medical certificates.

33 The grievor noted that, when she was advised of the October 26, 2006, meeting with Mses. Desjardins and Clarke-Davies, she thought that it was to discuss her attendance. At the meeting, she was nervous and felt embarrassed and that she was being ambushed. After the meeting, and until her employment was terminated, she continued to work her regular shifts.

34 The grievor testified that she feels very badly for what she has done but stated that she is not a criminal and that she will never do it again. She has ended her relationship with her boyfriend and now has a higher level of self-esteem. She stated the following: “In the past, I would keep all my emotional difficulties inside. I would be afraid to seek help or talk with my supervisor.” She admitted that forging her doctor’s signature was a grave error on her part, but it was because she was depressed at the time. She also felt pressured by her supervisor to submit the medical certificates and wanted to get her supervisor “off her back.”

35 The grievor remarked that, if she were asked to provide a medical certificate today, she would be honest with her supervisor and explain that she was having a problem obtaining an appointment to see her doctor. She again reiterated that forging the medical certificates was a serious mistake but that she was “not a criminal.”

36 The grievor testified that she apologized to her doctor and that he is very supportive of her.

37 Since the termination of her employment, the grievor has worked in low-paying jobs, has declared bankruptcy, has no credit rating, has had her car repossessed and is living with her parents.

38 When asked by her representative if the CSC could trust her, she responded that it could because she is a good worker, she got along well with her colleagues and supervisors, and she wants to prove that she is an honest and trustworthy person.

39 In cross-examination, when she was asked if she had received the CSC’s “Code of Discipline” and the “Standards of Professional Conduct,” she indicated that she had. She also acknowledged having signed the following declaration:

…

You are expected to read and familiarize yourself with the Standards of Professional Conduct. It is your responsibility to seek guidance from your supervisor on any areas that you feel require explanation or clarification.

Acknowledgement and undertaking by the employee: I have received the Standards of Professional Conduct and the Code of Discipline, and undertake to maintain, in the course of my employment, the standards of professionalism and integrity that are therein set forth.

…

40 When the grievor was referred to clause 5(c) of the “Commissioner’s Directive - Code of Discipline” (Exhibit E-8), which states that “[a]n employee has committed an infraction if he or she fraudulently seeks to obtain, or fraudulently obtains documentation required for approval of absence from duty,” she indicated that she never denied forging her doctor’s signature on the medical certificates.

41 When asked if she had breached “Commissioner’s Directive 001 - Mission of the Correctional Service of Canada,” she acknowledged that she had. Under “Ethical Values,” it states the following (Exhibit E-9):

…

• These involve continually striving to earn public trust by abiding by our legal mandate and putting the common good ahead of personal advantage. Abiding by such values involves such characteristics as integrity, honesty, impartiality, fairness, objectivity, the courage to speak truth to power, selflessness, the willingness to take responsibility and to be accountable, probity, respect for the law and careful management of public resources.

…

42 Counsel for the respondent then asked the grievor how she could ensure that the inmates that she guarded at Warkworth Institution would abide by the law if she had not. The grievor stated the following:

“Apart from this indiscretion, I have abided by the law. I realize that I have broken the law, but I have never committed a crime before and this will never happen again. That person was not me. I was not thinking straight. I am not a criminal, but I do understand that I have committed a criminal offence.”

43 When asked if she had advised Ms. Desjardins that she was having difficulty obtaining an appointment to see her doctor, she stated the following: “I never said I couldn’t. I am not really sure why.”

44 Although the grievor could not recall Ms. Desjardins mentioning to her that she could go to the hospital or to a clinic to have the medical certificates signed, she conceded that it was possible. When questioned further, she stated the following: “The clinic charges $20 per form whereas my doctor does not. Also, I would have to wait up to five hours to see a doctor at a clinic or the hospital.”

45 Counsel for the respondent referred to Exhibits E-1A and E-1B and noted that Part “A” (which is to be completed by the employee) was signed on August 1, 2006, and that Exhibits E-1C to E-1I were signed on August 21, 2006. When he reminded the grievor that she testified that she had forged the nine medical certificates on the same day, she replied as follows: “The thought came to my head and I signed them all but can’t remember when.”

46 When the grievor was asked whether, during any meeting with Mses. Bridgen, Desjardins and Guerin or Mr. Bourke, she had advised them that she had been taking anti depressants or that she was having difficulty obtaining an appointment to see her doctor to have her medical certificates signed, she at first replied that she had not but then recanted and stated that she had advised Ms. Bridgen but that she could not recall when.

47 In reply, when the grievor’s representative asked the grievor if Ms. Bridgen had ever asked her to produce a medical certificate, she replied that she had not.

III. Summary of the arguments

A. For the respondent

48 Counsel for the respondent stated that the facts in this case are not in dispute since the grievor has admitted that she forged her doctor’s signature on the nine medical certificates.

49 Counsel for the respondent argued that the grievor’s decision was pre meditated since she testified that, if she were to go to a clinic or to the hospital, she would have to wait up to 5 hours and would be charged $20 for each medical certificate. The grievor made a conscious decision to forge her doctor’s signature hoping that it would go unnoticed by her supervisor. Although she could have discussed her problems with her supervisor, she deliberately chose not to.

50 Although the grievor testified that she was depressed and that she had been prescribed anti depressants, she adduced no evidence, either through medical reports or from her doctor, to confirm her testimony.

51 Counsel for the respondent noted that Mr. Bourke testified that in October 2005 the grievor had committed a serious breach of the CSC’s policies. He could have terminated her employment at that time, but he decided instead to impose a five-day financial penalty. Within four years, the grievor committed two serious misconducts. The grievor does not deserve another chance. The essential element of trust between the respondent and the employee has been irrevocably broken, and reinstatement is not an option.

52 In support of his arguments, counsel for the respondent referred me to the following cases: Flewwelling v. Canada (F.C.A.), [1985] F.C.J. No. 1129 (C.A.) (QL); Gagnon v. Treasury Board (Revenue Canada - Taxation), PSSRB File No. 166-02-16679 (19870810); Juneau v. Treasury Board (Revenue Canada, Customs and Excise), PSSRB File No. 166-02-13118 (19820922); Moore v. Treasury Board (Employment and Immigration Canada), PSSRB File No. 166-02-23658 (19930527); Morrow v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 43; Health Employers Association of British Columbia (Peace Arch Hospital) v. Hospital Employee’s Union (1996), 60 L.A.C. (4th) 93; and Sauvageau v. Treasury Board (Employment and Immigration Canada), PSSRB File No. 166-02-14870 (19850129).

B. For the grievor

53 The grievor’s representative argued that I should exercise judgment and substitute the termination of employment with a lesser penalty since the grievor has suffered significant hardships following the termination of her employment.

54 The grievor’s representative stated that there are limited cases to refer to in dealing with the specifics of this case. The elements that I must consider are the grievor’s intent, the candour of her responses during this hearing and at prior disciplinary hearings, and the risk that she will re offend.

55 At the meeting on October 26, 2006, the grievor was forthright and honest; she immediately admitted that she had forged her doctor’s signature. She has accepted responsibility for her actions, has shown remorse and has apologized to her doctor. As well, Messrs. Juby and Crowe-McKenzie testified that they would have no reservations working with the grievor again.

56 The grievor’s representative argued that forging the medical certificates was not a pre meditated act but rather an isolated incident. As part of its mandate, the CSC rehabilitates inmates, and I should also consider the grievor’s rehabilitation potential.

57 After the meeting on October 26, 2006, and until her employment was terminated on December 13, 2006, the grievor continued performing her duties. Obviously, the CSC felt that she could be trusted. How can the CSC now state that the trust between the respondent and the employee has been irrevocably broken?

58 The grievor’s representative further argued that this case is not of the same nature as her previous discipline. Therefore, according to the doctrine of progressive discipline, the impact on the grievor with respect to a penalty should be minimal. A more appropriate penalty would be a one-month suspension without pay, reinstatement to her substantive position, and payment for lost wages, benefits, overtime and interest. In the alternative, the grievor could be demoted to a clerical position at Warkworth Institution.

59 In conclusion, the grievor’s representative referred me to the following cases: Twiddy v. Treasury Board (Department of Human Resources and Development Canada), 2005 PSLRB 37; Canada Post Corp. v. Canadian Union of Postal Workers, [2004] C.L.A.D. No. 422 (QL); and Spawn v. Parks Canada Agency, 2004 PSSRB 25.

IV. Reasons

60 On December 13, 2006, the grievor’s employment was terminated because she had forged her doctor’s signature on nine medical certificates (Exhibits E-1A to E-1I). As a result, she committed a serious misconduct and violated the CSC’s “Code of Discipline” and “Commissioner’s Directive 001 - Mission of the Correctional Service of Canada.”

61 The grievor’s representative agreed that disciplinary action is warranted but that termination of employment is excessive.

62 A brief review of the facts is in order.

63 On June 10, 2002, the grievor was hired as a term employee. On August 29, 2003, she accepted an indeterminate appointment at the CX-01 group and level.

64 From July 16, 2004 to January 23, 2005, the grievor’s attendance was being monitored since she was having problems reporting for duty.

65 On October 12, 2005, the grievor was given a five-day financial penalty for violating the CSC’s “Code of Discipline” (Relationship with Offenders), “Commissioner’s Directive 001 - Mission of the Correctional Service of Canada” (Ethical Values), and the “Standards of Professional Conduct - Standard Four” (Relationship with Offenders) (Exhibit E-10). Mr. Bourke testified that it was a serious misconduct that would normally have resulted in termination of employment, but he instead decided to impose a five-day financial penalty.

66 As of November 21, 2005, the grievor’s attendance was again being monitored, and at that time, she was ordered to submit a medical certificate within five days of every shift that she missed.

67 On October 26, 2006, Mses. Desjardins and Clarke-Davis met with the grievor to inquire why she was not providing the medical certificates, and they also advised her that they noticed discrepancies with the doctor’s signature on the nine medical certificates.

68 On November 14, 2006, Mr. Bourke convened a “Disciplinary Fact Finding Investigation” to ascertain the authenticity of the doctor’s signature on the medical certificates.

69 On December 8, 2006, Mr. Bourke received the “Fact Finding Investigation Report.”

70 On December 12, 2006, Mr. Bourke held a disciplinary hearing with the grievor and her bargaining agent representative.

71 On December 13, 2006, the grievor was advised that her employment was terminated.

72 In deciding whether termination was the appropriate penalty, I must examine a variety of factors relating to the nature of the misconduct and whether the employer’s trust, which is the foundation of every employment relationship, can be restored.

73 As such, the following factors, which are neither exhaustive nor conclusive, must be taken into consideration to determine if the disciplinary action should be mitigated or modified:

• the grievor’s employment record;
• the grievor’s years of service;
• whether the misconduct was an isolated incident;
• whether there was any provocation;
• whether the misconduct was committed on the spur of the moment as a result of a momentary aberration or whether it was pre meditated;
• whether the penalty imposed has created an economic hardship for the grievor;
• evidence that the CSC’s policies were not been uniformly enforced, thus constituting a form of discrimination;
• the likelihood that the grievor misunderstood the nature or intent of a requirement of the CSC;
• whether the grievor has apologized for her misconduct;
• whether the penalty imposed was done in a timely matter;
• whether the grievor occupied a position of trust;
• the grievor’s rehabilitative potential;
• a lack of clarity of the CSC’s policies;
• the grievor’s age;
• the medical factors which might bear on the issues;
• whether there was a failure to accommodate the grievor;
• whether the grievor’s misconduct rendered her unable to perform her duties satisfactorily;
• whether the grievor’s misconduct is a breach of the Criminal Code, R.S.C. 1985, c. C-46and thus injurious to the reputation of the CSC; and
• whether the grievor’s misconduct led to a refusal, reluctance or inability by other employees or management to work with her again.

74 After a careful and thorough analysis of the above criteria, I conclude that the grievor has unequivocally broken the bond of trust that is crucial to the employer-employee relationship.

75 Forging her doctor’s signature on the medical certificates is a criminal offence, and that alone would be grounds for termination of employment. However, when coupled with the grievor’s brief employment history and the fact that she had previously received a five-day financial penalty for a serious misconduct, it reinforces the CSC’s decision. As a peace officer, the grievor was responsible for ensuring that inmates abided by the laws of Canada. If I were to reinstate the grievor, it brings to mind the following old adage: Who would be guarding the chicken coop?

76 The grievor admitted that she forged her doctor’s signature on the medical certificates. Her representative argued that she never denied doing so and therefore that she was forthright. I do not agree.

77 The grievor could not recall the date on which she forged the nine medical certificates. The evidence shows that, in Part A (the portion that the employee is required to complete), two were signed with a date of August 1, 2006, and seven with the date of August 21, 2006. In Part B (the portion that the doctor was to complete), two were forged bearing the date of August 2, 2006, four with the date of August 22, 2006 and three with the date of August 27, 2006. Regardless of the date when she forged the medical certificates, she had ample opportunity to approach her supervisor before the October 26, 2006 meeting to admit her indiscretion. She was not forthright. It was only when confronted by Mses. Desjardins and Clarke-Davis on October 26, 2006 that she admitted her transgression.

78 There was no medical evidence that she had been seeing a psychologist or that she was depressed or had been prescribed anti depressants. Nor was there any medical report substantiating her mental state. As well, I note that she did not produce any evidence that she has apologized, verbally or in writing, to the CSC or that she has offered to reimburse the nine days of sick leave that she fraudulently obtained.

79 As for mitigating factors, there are no reasons to lead me to believe that the grievor would be an asset to the CSC in the delivery of its services.

80 It is trite law that trust and honesty are the cornerstones of a viable employer-employee relationship, particularly when the employee occupies a position of trust. Correctional officers are held to a higher standard of conduct than other public service employees. They are inextricably linked to the integrity and safety of the laws of Canada, the correctional institution, the inmates and the staff. Any loss of trust or confidence will impair the system and have an adverse effect on those who rely on it. Correctional institutions are places where correctional officers are thrust into situations where their lives are often at risk. A correctional officer must believe that his or her fellow officer has adhered to the standards of conduct and enforces and respects the laws of Canada with a high degree of integrity and trust.

81 I cannot in good faith reinstate the grievor to her former position or to any other position at Warkworth Institution since it obviously requires a fundamental level of trust, honesty and integrity. By her actions, the grievor has chosen to disregard those values.

82 For all of the above reasons, I make the following order:

V. Order

83 The grievance is dismissed.

February 18, 2010.

D.R. Quigley,
adjudicator