FPSLREB Decisions

Heard at Saskatoon, Saskatchewan,
September 29 and 30 and October 1 and 2, 2015.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

1        Tyler Stene (“the grievor”) was employed as a correctional officer (“CX”) 1 (CX-01) at the Saskatchewan Penitentiary (“the institution”) in Prince Albert, Saskatchewan, which is part of the Prairie Region of the Correctional Service of Canada (CSC or “the respondent”).

2        On May 28, 2014, the grievor was suspended without pay by the respondent, effective May 29, 2014, pending a disciplinary investigation. On June 12, 2014, the grievor grieved the respondent’s decision to suspend him without pay, stating that the action was disciplinary, excessive, and unwarranted. As relief, he requested that the suspension be rescinded and that he be reimbursed all lost sums, including shift differentials as well as missed opportunities for overtime; accumulated sick and vacation leave; family related leave; and all pension contributions. He also asked to be brought back to work in some capacity or to be transferred to a suspension with pay.

3        On December 9, 2014, the grievor was terminated from his employment with the CSC, effective May 29, 2014. On January 14, 2015, he grieved the respondent’s decision to terminate his employment, stating that the disciplinary action was unfounded in fact and law, was excessive, and was unwarranted. As relief, he requested that the termination be quashed, he be reinstated, and he be paid back all monies lost including pension adjustments, Canada Pension Plan, and all benefits lost due to the termination. In the alternative, he requested that the disciplinary action be reduced. He requested all other rights that he may have pursuant to legislation or the collective agreement as well as damages and interest.

4        The respondent objected to the jurisdiction of an adjudicator to hear the grievance against the suspension without pay on the grounds that it does not fall within s. 209(1)(b) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA).

5        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014 -84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board (“the PSLRB”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan, 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014 -84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the PSLRA before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by sections 365 to 470 of the Economic Action Plan, 2013 Act, No. 2.

II. Summary of the evidence

6        The grievor commenced his employment with the CSC in December 2007. Before the incidents that are set out in this decision, he had a discipline-free record. As a CX, he held a peace officer designation.

7        The institution is a multi-level penitentiary located in the town of Prince Albert, Saskatchewan. It houses roughly 1000 inmates at different security levels and employs around 730 people, of whom approximately 300 are CXs. Roughly 30 to 40 members of the staff are female.

8        In addition to being employed as a CX, starting in 2006, the grievor was a constable with the Royal Canadian Mounted Police (RCMP) Auxiliary. An auxiliary constable is a uniformed but unpaid officer of the force, holds a peace officer designation, and, when under the supervision of a full-time RCMP officer, has all the same powers as a regular RCMP constable, including the authority to conduct traffic stops, issue tickets, and arrest individuals.

9        In or about October of 2013, the grievor began a relationship with a female CSC employee (“the girlfriend”), who worked both at the institution and at a local hospital. The termination of the grievor’s employment arose, for the most part, from an incident that happened on May 1, 2014, which involved the girlfriend. At the time of the incident, he and the girlfriend were separated from their respective spouses and maintained separate residences.

10        The direct evidence of what happened on May 1, 2014, was the oral evidence of the girlfriend and the grievor, which differed with respect to the salient facts, save for a few limited points.

11        At the request of the grievor, I made an order excluding witnesses. It did not apply to him; however, it did apply to all respondent witnesses. As this is a termination case, the respondent led its evidence first, and the girlfriend testified before the grievor, so, she had not heard any of the evidence of any of the other witnesses who had testified before her. When he testified, the grievor had heard the evidence of all the respondent’s witnesses, including the girlfriend, and his representative had cross-examined all the respondent’s witnesses before the grievor testified.

12        At the time of the hearing, Nancy Shore was the assistant warden of operations (“AWO”) at Bowden Institution in Innisfail, Alberta, but was also the acting deputy warden of that same institution. She testified that on May 13, 2014, she was asked by the Acting Warden of the institution, Ray Tooley, to carry out an investigation into the grievor’s conduct, with the assistance of Debra Tooley, a correctional manager (CM) at Prince Albert Penitentiary. They completed their investigation and issued an investigation report on June 25, 2014 (“the investigation report”).

13        Ms. Shore testified; Ms. Tooley did not.

A. Events of April 30 and May 1, 2014

14        The grievor and the girlfriend exchanged texts (Exhibit G-1) starting on April 29, 2014, at 2:33 p.m. and continued to the morning of April 30, 2014. For the following messages, those on the left were sent by the girlfriend, while those on the right were sent by the grievor.

                                       Apr 29, 2014, 2:33 PM

I love you and
I miss u horribly!!!!

                                      Apr 29, 2014, 10:40 PM              

                                      I
luv u!!!!!

I love u too

                                      U r my hottie!!!!

                                     Apr 30, 2014, 9:38 AM

[Photo of baking
sheet with cookie dough]

Haha baking
cookies.

Then Off to
the gym                                      

[Sic
throughout]

15        Both the grievor and the girlfriend testified that after the April 30, 2014, 9:38 a.m. text about baking cookies and going to the gym, the grievor left several text and voice messages for the girlfriend. She testified that after that, she did not respond to any of his texts or voice messages.

16        The girlfriend testified that on April 30, 2014, she visited a female friend, who also works at the institution. The exact time frame of this visit was not disclosed to me. The girlfriend stated that during this visit, she confided to her female friend that she found the grievor too controlling and that she had to get out of the relationship. The girlfriend stated that she decided that she was going to cut all ties with him. She stated that she had tried to end the relationship on two other occasions. She stated that she was afraid of him. She testified that when she tried to end the relationship the first time, in March 2014, he blocked her vehicle and exhibited angry outbursts. She stated that in April 2014, she tried to end the relationship a second time, by telephone.

17        The girlfriend described the grievor’s controlling behaviour as interfering with her relationship with her ex-husband and stated that he would get angry at her if she picked up her children and saw her ex-husband or if she had discussions with her ex-husband about the kids.

18        The girlfriend testified that at some point either on April 30, 2014, or during the early hours of May 1, 2014 (the exact time was not clear), she left her female friend’s home and went to the home of a male friend. The girlfriend testified that the relationship with this male friend was intimate. She did not elaborate on when it became intimate; it is sufficient to say that it was, as of May 1, 2014.

19        The girlfriend testified that the grievor did not have a key to her house. He testified that he did.

20        The girlfriend testified that she returned to her house at approximately 3:45 a.m. on May 1, 2014. She stated that when she arrived home, the grievor was outside, reclined in the front seat of his truck. She stated that she ran into her house, locked the door, and took a shower. She went on to state that during the course of her shower, she heard banging; upon exiting the shower, she heard banging coming from her kitchen. Upon moving from the bathroom into the hallway, she encountered the grievor. The girlfriend stated that the grievor tried to hug her and that she pushed him away. She said that she asked him if he had broken into her home, to which he said he did, through the kitchen window.

21        The girlfriend stated that a discussion took place in which the grievor pressed her about her whereabouts on the evening/night of April 30 and on the early morning of May 1. She stated that initially, she told him that she had been with her female friend. She stated that the grievor told her that he drove past her female friend’s house several times and that the girlfriend’s vehicle was not there. The girlfriend stated that when she challenged the grievor on his knowledge of her female friend’s home, she stated that he told her he had a colleague at the RCMP look up the address.

22        The girlfriend testified that as the discussion continued, she eventually told the grievor that she had spent part of the time the previous evening and night with her female friend and then later with her male friend. This was the first she advised the grievor of her relationship with her male friend.

23        The girlfriend then recounted that over the next several hours, sometime between when she got home at approximately 3:45 a.m. and when she left for work, sometime shortly after 6:00 a.m., she was confined to her home by the grievor. She stated that during this time frame the grievor

i. at times pinned her to the floor and bed and straddled her while he pinned her;

ii. yelled and screamed and was verbally abusive to her, referring to her in a variety of offensive ways and using a number of offensive terms;

iii. told her that she was not going into work that day despite her advising him she had to get ready to go to work as she was scheduled to work a shift at the local hospital starting at 7:00 a.m.;

iv. took a necklace and watch from her dresser that he had given her as gifts;

v. punched her in her arm with sufficient force to cause his arm to be cut by her watch and bleed on her clothing;

vi. took her mobile telephone and began to correspond with the girlfriend’s male friend when he texted her;

vii. answered her mobile phone when it rang, and spoke to the girlfriend’s male friend;

viii. retained possession of her mobile telephone throughout the time he was in the girlfriend’s home and took it with him when he left;

ix. went through data and photos on her mobile telephone;

x. cornered her in her bedroom and within her personal space subjected her to rude gestures and mannerisms, using his different body parts; and

xi. took dead flowers out of the garbage and spread them around her bedroom.

24        The girlfriend was asked in her examination-in-chief if, during this encounter, she ever asked the grievor to stay at her house, to which she answered, “No”.

25        The girlfriend testified that she did manage to get dressed for work and did leave the house and that the grievor left at the same time. She stated that outside her home, when she attempted to get into her car, the grievor tried several times to keep her from closing her door and driving off. She stated that still outside her home, he continued to yell and hurl abuse at her. Once she did leave, he followed her to her workplace and ran a red light to keep up with her. She stated that he followed her into the hospital parking lot. She testified that as she exited her car and was going into her workplace, he continued to yell at her and call her offensive names.

26        The girlfriend stated that from her workplace, she telephoned the grievor and left a message for him to return her mobile telephone as it was her only telephone and her only means of communication.

27        The girlfriend stated that during the course of the morning and into the afternoon of May 1, 2014, the grievor returned to the parking lot of her workplace and accosted her; he continued being abusive towards her. She stated that at some point during the course of the afternoon of May 1, 2014, he returned to the hospital parking lot, unlocked her vehicle, and returned some items of hers. One item returned was her mobile telephone, from which he had deleted both photos and data. Another item was a teddy bear that he had given to her as a gift — he had cut it up and ripped it open.

28        Throughout her testimony, the girlfriend had difficulty speaking and, at times, breathing. She appeared to shake uncontrollably.

29        In cross-examination, the text messages of April 29 and 30, 2014 were put to the girlfriend, which she admitted she had received and sent to the grievor. She confirmed that at that point she had not cut off communication with him.

30        In cross-examination, the girlfriend was asked why she ran into the house when she returned home the morning of May 1, 2014, to which she replied that she had been scared. She was then asked if the grievor had been violent toward her, and she responded that he had thrown her around in the past.

31        Still in cross-examination, the girlfriend was asked why she did not telephone for help when she found the grievor in her home. She testified that she has only a mobile phone and that it had been left in her bedroom when she went to take her shower. Once she entered her bedroom, the grievor was with her, and he took the phone.

32        The grievor testified that on April 30, 2014, he worked the evening shift, which ended at 11:00 p.m., and that he had prearranged with the girlfriend to meet her at her home after his shift ended. This prearranged meeting was not put to the girlfriend on cross-examination.

33        The grievor stated that after his shift, sometime around 11:30 p.m. or midnight, he arrived at the girlfriend’s home. He stated that it appeared that no one was there. He stated that he texted the girlfriend and received no reply. He stated that over the course of the evening/night of April 30 and early morning of May 1, he texted the girlfriend at least 10 times. He also stated that he called her several times; although he could not state an exact number, he speculated he made five calls, all of which went directly to voicemail.

34        In her testimony, the girlfriend confirmed that she received several text and voice messages from the grievor and that she did not reply to any of the text messages or phone him back.

35        I was not provided with copies of any of these alleged text messages. I was not provided with copies or transcripts of the alleged recorded voice messages.

36        The grievor testified that at some point after he arrived at the girlfriend’s house after his shift ended on April 30, 2014, and before she arrived home on May 1, 2014, he went home, took a shower, and returned to her house. The grievor stated that he said he knew the girlfriend had gone to her female friend’s house for a few drinks, so he was concerned, but he stated as follows: “I did not want to leave because if I did and she came back and I wasn’t there, she would be a mess.”

37        When the grievor was asked by his representative at what time the girlfriend returned to her house, he testified that he was not sure but that it was late. He stated: “I assumed she went to the bar.” He then stated it would have been at about 3:00 or 3:15 a.m. He went on to state that when the girlfriend arrived at home, they both exited their respective vehicles and began having a conversation. He testified that “[The girlfriend] was stumbling as she walked because she was drunk.” He then stated that they went into the house together. When asked by his representative what he and the girlfriend were discussing at this point, he stated that he “asked her why she was driving in that condition” and then repeated that the girlfriend was stumbling. He then stated that he had asked her where she had been.

38        The grievor’s representative then asked him about his state of mind at this juncture, and he stated: “I was worried, I guess, being that her phone was off or dead.” He said he was worried because “[he] knew she was out drinking, and [he] didn’t want her out driving.”

39        None of these allegations about the girlfriend being drunk or intoxicated, stumbling when she returned home, or having a discussion with the grievor about why she was driving in an intoxicated state were put to her in cross-examination.

40        The grievor’s representative put to the grievor that the girlfriend had testified that she had attempted to break off their relationship on two separate occasions, to which he responded that he “didn’t believe it happened.”

41        The grievor’s representative asked the grievor when he became suspicious about her behaviour, to which he answered “right away”, indicating that the girlfriend “was nervous and would not look [him] in the eye, which was out of character for her.”

42        The grievor’s representative put to the grievor that the girlfriend had testified that he had told her that he had driven past the girlfriend’s female friend’s house. He stated that he had lied to the girlfriend about this because he knew she was being deceitful.

43        The grievor testified that as their discussion progressed, the girlfriend’s story changed three or four times, but eventually, she admitted she had been with her male friend. When asked by his representative how he reacted to this information, the grievor stated: “I smirked and chuckled, because I should have known better; one part of me was shocked, but one part expected it.”

44        When his representative asked him what he wanted to do with his relationship with the girlfriend, he said he wanted to terminate it. He stated that “her old habits had presented themselves, and it was a big letdown.” When his representative asked him how the girlfriend reacted to the grievor ending their relationship, he stated that she begged him not to leave her and that she would become angry when he would tell her they were not going to be together. He stated that the girlfriend did not want him to leave her because she could not afford to be on her own. He stated that she would be angry and then desperate. He stated that she said the following: “I fucked up my life for you ... I will fuck up your life for you.” When the girlfriend was cross-examined, none of this was put to her.

45        When the grievor was asked by his representative if there was any physical contact between him and the girlfriend, he stated that on multiple occasions, she would try to hug him and would lean in to cry on his shoulder. He stated that when she would try to initiate contact, he would move away, as he was disgusted with her behaviour. He stated that at one point, he was lying on her bed staring at the ceiling when she got on top of him and straddled him, trying to hug him. He got up, as did she, and she grasped his wrists with her hands. He used a training technique, a deflection technique he had learned, to deflect her hands off his, at which point her watch broke and cut his hand.

46        The grievor’s representative put to him that the girlfriend testified that he had punched her, to which he responded that she had grabbed his wrists and that he had used the deflection technique.

47        The grievor’s representative put to him that the girlfriend testified that he had called her names, to which he stated: “I guess that I did get a little cheap, but considering she had made a commitment to me and she was now exhibiting this promiscuous behaviour,” and given that he was “disgusted with her behaviour”, he stated that he did “ask her if her father would be proud of what she did” and stated: “I might have called her a whore — I don’t know.”

48        None of these allegations about the girlfriend’s alleged questionable moral conduct or promiscuity was ever raised in her cross-examination.

49        When the grievor’s representative put to him that the girlfriend testified that he had taken a watch and necklace, he stated that he had purchased these expensive gifts for her and that they were sitting on her dresser and she was not wearing them, so he took them and put them in his pocket.

50        When the grievor’s representative asked him how he ended up with the girlfriend’s mobile telephone, the grievor stated that he had grabbed it and that “it had been on either the bed or the dresser, [he] didn’t know.” He stated that two or three weeks earlier, the two of them had gone on a southern vacation and that there were provocative pictures on it that he wanted to delete. In addition, he stated that he wanted to delete his contact information.

51        The grievor testified that at one point, while he had the girlfriend’s mobile phone in his possession, the girlfriend’s male friend sent a text message to the girlfriend. The grievor admitted to responding to this male friend’s text messages by typing “Caught”.

52        At Appendix 21 of the investigation report is a series of text message exchanges between the girlfriend’s mobile telephone and her male friend. The messages were exchanged the morning of May 1, 2014, starting at 5:31 a.m. The following messages on the left were sent from the girlfriend’s mobile telephone and those on the right came from the girlfriend’s male friend:

The gig is up bro too late
Gig is up too late
Too late got caught
                            What
Got caught
                            On what
Got caught
Caught
                            What are u talking about got caught seriously
Caught
                            Ok
Caught
                            No idea what u are talking about
                            What are u saying seriously
Leave her allone
U need to leave us alone!!
We got caught. U need to leave us alone. 
U r not worth the loss.
                            K
                            How’s talking to me now
Leave me alone
Leave me alone
Leave us alone
Leave us alone
We got caught leave us alone!
                            I what the fuck is going on this is still this guy texting me isn’t it
It the boy friend u dick. U need to Fuck off!! 
Loose this number trust me! We will be 
seeing u later. Both of us.
                            Hey I asked her if she was with any one cause I don’t want to get involved with some one and she said no u guys were done
Ya Ya nice cover. Well u r caught. U need
To loose this number!!!!! I am not kidding.
                            It’s no cover up ask her your self I don’t want no shit she said u were crazy stalking her so whatever u don’t need this shit I won’t bother u guys goodbye wow
Great idea. We r an item.there is no stalking!!
Loose the number!!!! For real
[Sic throughout]

[Sic throughout]

53        In his testimony, the grievor admitted to exchanging texts with the girlfriend’s male friend while in possession of the girlfriend’s mobile phone; however, he would not admit to having typed and sent the specific texts contained at Appendix 21 of the investigation report that were shown as being sent from the girlfriend’s mobile telephone. According to the interview notes taken by the CSC investigators found at Appendices 22 and 23 of the investigation report, during his interview, the grievor admitted to texting and calling the girlfriend’s male friend. The girlfriend testified that the grievor had possession of her mobile telephone during this time. Ms. Shore testified that the CSC investigators obtained the texts from the girlfriend’s mobile telephone.

54        When asked by his representative why he stayed at the girlfriend’s house for so long, the grievor stated: “We were engaged in a conversation.” When asked by his representative how many times the girlfriend asked him to leave, the grievor responded as follows: “I don’t know ... it was the opposite, she didn’t want me to leave.”

55        When asked by his representative what happened after he and the girlfriend left her home, he stated that he went to his truck and she to her car, she went to work, and he intended on going home. The grievor was asked by his representative if the girlfriend went to work intoxicated to which he answered “that would be fair to say.” He further testified that he did not tell the CSC investigators that she was intoxicated nor did he tell them that she went to work intoxicated. When asked why he did not tell them this, his answer was that they didn’t ask him. He stated that he ended up behind her by accident. He then stated that they ended up in adjacent lanes and were talking to one another through their windows as they drove and that she said to him that they “could fix this” and stated: “I will call you later.”

56        The grievor testified that he did not think he had followed the girlfriend to the hospital parking lot, but then, he saw the photos of his truck in the investigation report and stated: “I pulled into the parking lot and we [he and the girlfriend] were going to talk but by that time she had gone in [to the hospital] already.”

57        The grievor testified that the next time he spoke with the girlfriend was sometime before noon on May 1, 2014, as she wanted to meet for lunch. He stated that he drove to the hospital to meet her and to talk to her. He stated that he parked in the lot, somewhat across from where she had parked, that she came out, that they started to talk, and that she said to him that she wanted to make things right. He stated that the conversation was not very long, around 5 to 10 minutes, and then the girlfriend got angry and frustrated and said that she could not do “this” in front of her boss (who was apparently in the parking lot as well). The grievor stated that he still had the girlfriend’s mobile telephone and that he wanted to give it back to her but that she had gone into the hospital too quickly. He stated that he went into the hospital to give it to her but she was engaged in a discussion with her co-workers, and he did not want to intrude.

58        The grievor stated that after their lunch-hour meeting, he went back to his house and gathered up the belongings that the girlfriend had left there, and at some point before her shift ended, he returned some clothing and toiletries to her car. He stated that her vehicle had a keyless entry code, which he had written down, and as such, he had an ability to gain access to her vehicle, which he did, and he stated that he placed these items in it. He admitted that in addition, he left a teddy bear that belonged to the girlfriend, which he cut open and broke apart.

59        Neither the girlfriend’s female friend nor her male friend testified.

B. Events after May 1, 2014: criminal investigation, charges, and conviction

60        The girlfriend testified that on May 2, 2014, she confided in her female friend and her ex-husband about what happened on May 1, 2014, between her and the grievor. She stated that at their urging the Prince Albert Police Service (PAPS) was contacted and that she gave a written statement, which was marked as Exhibit E-1. However, she stated that she did not actually write it; her female friend and her ex-husband did.

61        Constable Ryan Banadyga of the PAPS testified that on May 2, 2014, he was dispatched to meet and speak with the girlfriend. He testified that the girlfriend advised him at that time that the grievor had assaulted her, and she provided Constable Banadyga with the handwritten statement that is marked as Exhibit E-1. He stated that he invited her to come the next day to the PAPS’ offices to provide a “KGB statement.” A KGB statement is taken under oath and is audio and video recorded. Anyone giving a knowingly false KGB statement may be charged criminally.

62        Constable Banadyga stated that the girlfriend did attend on May 3, 2014, and that she did provide, in his presence, a KGB statement in connection with the events of May 1, 2014. He further testified that based on his meetings with the girlfriend, her written statement (Exhibit E-1), and her KGB statement, he wrote up an “Incident Report” dated May 4, 2014, at 1:06 a.m. (Exhibit E-2, tab 4).

63        I was not provided with a copy of the KGB statement.

64        Constable Banadyga stated that he did visit the girlfriend’s home and that he inspected the kitchen window and screen where the girlfriend alleged that the grievor gained access to her home. He stated that he took pictures of the damage. He stated that he went to her home some time after May 1, 2014, and that it had rained in the interim, so if there had been footprints, they would have been washed away. No fingerprints were taken around the window. He stated that the photos were in the PAPS file and that they had not been authorized for release. He confirmed that he based his decision to charge the grievor with break and enter on the girlfriend’s statement and on the damage to the kitchen window. The girlfriend stated in cross-examination that the kitchen window is approximately six feet above ground level.

65        Constable Banadyga stated that based on the information provided to him, he was satisfied that a bench warrant should be issued for the grievor’s arrest.

66        The grievor stated that over the weekend of May 3 and 4, 2014, he was not in Prince Albert but was out of town and that he returned on the Sunday night.

67        The grievor stated that on Monday, May 5, 2014, he went to the institution to retrieve his uniform. He stated that typically, he works the Thursday evening shift; however, due to the events that transpired on May 1, 2014, he had not gone to work and had not retrieved his uniform, which he usually laundered over the weekend. He admitted that he did not sign in. He stated that he did not know that he was required to. He stated that while he was familiar with the sign-in policy, he stated that it was not common practice and that the staff often did not sign in. The grievor stated that he was required to move through six control points before getting into the unit where he worked to retrieve his uniform.

68        Appendix 30 of the investigation report is a copy of Standing Order 566.1, entitled “Control Of Entry To And Exit From Institutions”. Clause 8 states as follows:

8. After normal working hours:

          a. staff returning to the institution shall state the purpose of their visit;

          b. staff returning to the institution shall complete the Official Visitor Register (CSC/SCC 541) at arrival and at departure;

          c. the officer in charge shall approve the entry of staff; and

          d. staff remaining in the institution shall advise the officer in charge.

69        At Appendix 14 of the investigation report is the institution’s “Official Visitor Register” for May 5, 2014, starting at 7:00 a.m. and ending at 12:45 p.m. There are 44 entries. Of the 44 entries, 36 identify the visitors as being from the CSC, 2 are from CORCAN (a CSC-related entity), and in the column marked “pass number”, the reference for all 38 CSC and CORCAN personnel is “ID”. The grievor’s name does not appear.

70        The grievor stated that on the morning of Tuesday, May 6, 2014, he went to see his doctor because he was not feeling well. He stated that when the relationship between him and the girlfriend had become public knowledge at work, they had been harassed because they had a large number of children between them, and since they had broken up, “due to [the girlfriend’s] typical behaviour”, he did not feel well enough to perform his duties at 100%. He stated that he was embarrassed and that he did not want to face the situation at work. He obtained a note from his doctor (Exhibit G-2), which was dated May 6, 2014, and had a note on it that it had been computer generated at 10:55 CST. When asked when he contacted the institution on that day to advise that he would not be in to work his shift, the grievor stated that it was as soon as he left his doctor’s office, while he was in his truck.

71        Part IV of the investigation report is entitled “Narrative” and contains a chart with chronological information that is slightly more than two pages long and contains 35 separate boxed paragraph entries about what happened starting on May 1, 2014, at 3:45 a.m. and ending with one entry for May 8, 2014. Recorded in the box marked “3:00 p.m.” on “May 6, 2014” is the note that the PAPS contacted the institution’s Security Intelligence Officer (SIO) office and advised it that the grievor had turned himself in. At Appendix 25 of the investigation report is a copy of the typewritten notes of the interview of Derek Dutchak, the SIO, who took the call from the PAPS, which states: “Later that day around 3 pm got phone call from police to say he had turned himself in.”

72        At the box marked “3:18 p.m.” for “May 6, 2014” of the investigation report, at “Part IV Narrative” is an entry that states: “CX Stene calls the institution to book off sick leave for his next 52.5 hours of shifts. He informed the CM Hutton-Brown that the leave will be certified by a physician.” Correctional Manager Hutton-Brown was interviewed by the CSC investigators, and according to the investigation report, she stated that she was in charge of the institution on May 6, 2014, that she recalled the grievor calling in to book off sick, and that she spoke with him. The narrative goes on to state that she stated that she remembered entering the leave into the computerized “Scheduling and Deployment System” (SDS) immediately at the time of the call.

73        A copy of the SDS entry for the grievor’s sick leave is found at Appendix 12 of the investigation report. It shows his name and the type of leave (sick uncertified) as well as the transaction date and time of “2014-05-06 15:18:26.0” and the “Transaction User” as “Hutton-Brown”. In the section marked “comments” is written, “will be certifying this leave”.

74        Part V of the investigation report is entitled “Analysis”. As part of this section, on page 16, it states as follows:

CX STENE provides a version of events on 2014 -05 -06 that is inconsistent with other accounts and records. CX STENE claims he went to the doctor on the morning of 2014 -05 -06 and the doctor certified him as unable to work for his next set of shifts. At his interview CX STENE told the board that he called work after he saw the doctor, giving the impression that he phoned prior to being advised that the PAPS were trying to locate him. The SOR written by SIO Dutchak reports that the PAPS attended at 11:00 attempting to locate CX STENE and at 15:00 they contacted the SIO to report that STENE was in their custody. Scheduling and Deployment System records, as well as the statement from CM Hutton -Brown who took the call from CX STENE, both reflect that CX STENE phoned the Institution just minutes before 15:18. At 15:18 CX STENE was aware that he was being arrested and detained. CX STENE told the BOI at the time of interview that he had a doctor’s note and he would provide this to A/AWO Hemsworth. At his time the Board has been advised by A/AWO Hemsworth that STENE has not provided the Doctor certification note for his sick leave at the time of the submission of this report.

75        CM Hutton-Brown did not testify.

76        Mr. Hemsworth, the institution’s AWO, did not testify.

77        I was not provided any evidence that the grievor ever provided the medical note dated May 6, 2014 (Exhibit G-2), to Mr. Hemsworth or to anyone else at the employer.

78        “Information 37399324, Occurrence No. 1411035” (Exhibit E-2, Tab 1) alleged that the grievor did the following:

(1) On or about the 1^st day of May A.D. 2014, at or near Prince Albert Saskatchewan did commit an assault on the girlfriend, contrary to section 266 of the Criminal Code

(2) On or about the 1^st day of May A.D. 2014, at or near Prince Albert Saskatchewan did without lawful authority confine the girlfriend contrary to section 279(2) of the Criminal Code;

(3) On or about the 1^st day of May A.D. 2014, at or near Prince Albert Saskatchewan did break and enter a place, to wit, a dwelling house ... and did commit therein the indictable offence of assault and forcible confinement, contrary to section 348(1)(b) of the Criminal Code.

79        The grievor stated that he became aware that there was a warrant out for his arrest at about 1:00 p.m. on May 6, 2014. He stated that sometime between 12:30 and 1:00 p.m., he received a call from the RCMP that it wanted to pick up his auxiliary police uniform and equipment, and it advised him of the warrant and provided him with the name and number of a contact at the PAPS. He stated that he took some time to make arrangements for his children and that he then went down to the PAPS offices and turned himself in.

80        The grievor was charged with those offences as set out in Information 37399324, Occurrence 1411035, and was held in custody until roughly 4:30 to 5:00 p.m. on Thursday, May 8, 2014. When he was asked why he did not call the institution at this time to report his arrest, he stated that he did not because he had already called to book off sick and because no one of significance would have been there at that time. He stated that he called the institution the next morning, the Friday, to report his arrest.

81        The grievor confirmed in his evidence that he attended Saskatchewan Provincial Court before the Honourable Judge Baniak on November 27, 2014, where the following charges were read out to him, to which he pled guilty:

i. On or about the 1^st day of May A.D. 2014, at or near Prince Albert Saskatchewan did commit forcible entry on the real property of [...], contrary to subsection 72(1) of the Criminal Code.

ii. On or about the 1^st day of May A.D. 2014, at or near Prince Albert Saskatchewan did commit an assault on the girlfriend, contrary to section 266 of the Criminal Code.

82        The grievor testified that he accepted a plea deal from the Crown Attorney on advice from his lawyer. He stated he did so to avoid paying legal fees and that he was told he would have no criminal record.

83        Convictions were registered against the grievor in respect of the two charges he pled guilty to in relation to the incident on May 1, 2014, with respect to the girlfriend. Certified copies of the convictions, dated September 17, 2015, are part of Exhibit E-2, tab 1.

84        As a result of the convictions, the grievor was granted a conditional discharge and was placed on probation for a period of 15 months under conditions set out in the probation order and in addition was required to pay a surcharge of $100.00 with respect to each conviction.

85        Exhibit G-3 is the probation order issued with respect to the grievor’s conviction, which required him for a period of 15 months to do the following:

1. keep the peace and be of good behaviour;

2. appear before the Court whenever required by the Court;

3. notify the probation officer or Court in advance of any change of name or address and to promptly notify the probation officer or Court of any change of employment or occupation;

4. report to a probation officer within two days and thereafter when instructed to by the probation officer;

5. live at his home address or at another address as approved by the probation officer and to not change residence without the written permission of the probation officer, his or her designate, or the Court;

6. not be at the residence, workplace, or place of education of the girlfriend except for medical purposes or as allowed to by the probation officer; and

7. participate in assessments of and complete programming for anger management, domestic violence, or personal counselling as told to by his probation officer.

86        Attached as part of Exhibit G-3 was the acknowledgement signed by the grievor on November 27, 2014, in which he acknowledged that among other things, the following were explained to him:

EFFECT OF A CONDITIONAL DISCHARGE

You have been conditionally discharged for the length of this probation order. No conviction is entered at this time. If you complete this probation order without getting any new offences, no conviction will be entered, the discharge will become absolute, and you may say that you have no record. However, if you are convicted of an offence, including the offence of breaching a condition of this probation order, while this order is in effect, the probation order may be revoked, a conviction may be entered, and you may receive a punishment that could have been imposed in the first place. This is in addition to any sentence that you may receive upon conviction for the new offences.

EFFECT OF A SUSPENDED SENTENCE

The sentence has not passed, but has been suspended for the period of time set out in this probation order. If you are convicted of an offence, including the offence of breaching a condition of this probation order, while this order is in effect, the probation order may be revoked and you may receive a punishment that could have been imposed in the first place. This is in addition to any sentence that you may receive upon conviction for the new offences.

87        Exhibit G-4 is a letter dated September 25, 2015, from Nancy Elder, a probation officer in the Domestic Violence Program with the Custody, Supervision, and Rehabilitation Services of the Ministry of Justice, Government of Saskatchewan. The letter confirmed that the grievor was serving his 15-month probation order, which expired on February 26, 2016; that he has been reporting as required with no issues as of the date of the letter; and that he has been compliant with all court-ordered conditions imposed on and instructions given to him to date.

88        The grievor testified that he completed an anger management program. He stated that it was a whole book and that he had not yet received his certificate. I was not provided any specifics as to what the program was.

C. CSC investigation, indefinite suspension, and termination

89        Wanita Koczka is the deputy warden (DW) of the institution. During parts of May 2014, she was the acting warden when the warden was away from the institution. Ms. Koczka testified that she was advised by the AWO of the institution, Mr. Hemsworth, of allegations of inappropriate conduct by the grievor. Ms. Koczka determined that an investigation into the allegations would be conducted and that the grievor would be suspended without pay pending that investigation. Exhibit E-2, Tab 2, Appendix 9, is a copy of a letter dated May 28, 2014, written by Ms. Koczka to the grievor, which states as follows:

…

I have received information that on or about May 1, 2014, you are alleged to have engaged in inappropriate conduct with respect to an incident whereby you were charged on or about May 7, 2014 under the Criminal Code of Canada with Break and Enter, Assault, and Unlawful Confinement. Accordingly, I have convened a disciplinary investigation into the circumstances surrounding this matter.

…

Given the apparent seriousness of the matter at hand, I believe that your continued presence in the workplace remains inappropriate at this time. Therefore, this letter is to inform you that you are being suspended without pay while this matter is investigated. This suspension is effective immediately, May29, 2014. Please note that I will reviewing my decision periodically regarding the suspension without pay to determine whether it continues to be necessary.

…

[Emphasis in the original]

90        Ms. Koczka stated that she determined that suspending the grievor was appropriate, as the charges against him were serious, involved alleged violence, and involved another employee of the institution. According to Ms. Koczka, given the work the grievor did at the institution as a CX and a peace officer, which included contact with inmates, it was inappropriate for him to have access to the institution. Ms. Koczka also stated that there was a risk to the CSC’s reputation, as Prince Albert is a small town and the CSC is a large employer there.

91        With respect to potential jobs other than as a CX, Ms. Koczka testified that no positions that the grievor could fill were without inmate contact.

92        Ms. Koczka stated that at the time she decided to suspend the grievor, she had not considered any discipline as she had only ordered the investigation. She confirmed in cross-examination that at the time she decided to suspend the grievor, she was not aware of him having been involved in any assaults or use-of-force situations within the institution or of any discipline ever rendered with respect to him. She also confirmed that at the time she suspended the grievor, she was aware of very little of the facts related to the charges; that to her knowledge, no inmates were aware of the charges; and that to her knowledge, no staff member had stated that he or she would not work with the grievor.

93        When Ms. Koczka was asked if she was aware if the incident or charges against the grievor were in the public domain, available through media sources, she stated that she believed that she might have read about it in a local online media service called “Prince Albert Now”, although she was not certain. She testified that she was not aware of other CXs who had criminal charges; nor was she aware of any being assigned to other tasks. When asked in cross-examination if she considered only the criminal charges when deciding to suspend the grievor, she stated that she considered the criteria as set out in Larson v. Treasury Board (Solicitor General Canada - Correctional Service),2002 PSSRB 9 (“the Larson Criteria”).

94        Ms. Shore stated that the methodology involved in carrying out the investigation consisted of performing nine interviews, including of the grievor, the girlfriend, and the girlfriend’s male friend, and of obtaining documents relevant to the occurrence from the CSC, the PAPS, the Crown Attorney, the girlfriend’s male friend, and the local hospital where the girlfriend worked. The investigators prepared questions for the interviews and took handwritten notes of the interviews, which were later typed. The questions and answers for the grievor’s interview as well as the statements of the girlfriend and her male friend are found in the investigation report. Ms. Shore stated that in addition to taking handwritten notes of the grievor’s and the girlfriend’s interviews, their interviews were also audio recorded.

95        No audio recording of the interviews was played or provided to me.

96        By letter dated August 25, 2014, the grievor was requested to provide comments on the investigation report. On September 19, 2014, he provided a two-page rebuttal (“the rebuttal”) (Exhibit E-3). The parts of the rebuttal that are salient to the issues before me are as follows:

…

[The girlfriend] was completely intoxicated on the day in question and I was sober.

…

part 1.......fraudulently obtains sick note? IT IS LEGITIMATE. I did not know about the charges when the sick note was obtained.

part 2.......I entered the institution through 5 control points in, and 5 control points out. The officer working the controlled entrance let me in and out of the unit without asking me to sign in and out. It is not normal to sign in at this institution. I was never asked to sign in or out.

part 2.......fail to complete control registry? I am unaware that the uniforms were ever signed in. I am unaware that uniforms need to be signed out. Another control point. (2 doors) I was never asked to sign them out.

…

Hutton Brown states that I had called in at 1518. Wrong, I was in custody long before that. Your investigation says that Dutchak received a call at 1500 that I was in custody. How did I call the institution from a city cell? The call to book off was made in the am.

Conclusion

Some of the findings inaccurate, and on he said she said basis. The board has formed an opinion on what is alleged. This board has based a decision on the balance of probabilities??? This matter is still before the court.

My work history regarding professionalism, and personal evaluation reports should be considered in terms of the balance of probabilities.

They state the following:

They show clearly that I am a good staff member;

I am seen as a role model to junior staff;

I have good work relationships.

I have taken pride in my uniform from day one, and have always ensured it was clean and presentable. I re-entered because I did not know when I left, I was going to be away from the institution. I had to re-enter to pick up my dirty uniforms.

[Sic throughout]

97        The grievor testified that he recalled attending a meeting on October 3, 2014, after he had presented his rebuttal and understood that it was his opportunity to verbally respond to the investigation. In cross-examination when asked about what he said or what he didn’t say, he referred to there still being an ongoing criminal investigation. In re-examination by his own representative regarding why he didn’t share information with the CSC investigators, he stated it was a criminal matter and it was on the advice of his lawyer.

98        At Appendix 19 of the investigation report are a series of photographs that were obtained from the security camera of the parking lot of the local hospital where the girlfriend worked. All the photographs are dated May 1, 2014. The first four photographs are timestamped between 06:19:20 a.m. and 06:21:14 a.m. and show a red pickup truck coming towards the camera and then going away from it and then being stopped with someone adjacent to it. The red pickup truck was identified as the grievor’s by Ms. Smith and the grievor. The next four photographs show what appears to be the same red pickup truck and are timestamped between 11:52:04 a.m. and 12:06:00 p.m. The first of them shows what appears to be the same pickup truck parked, hood facing out, in the hospital parking lot. The fourth photograph, timestamped at 12:06:00 p.m., shows the truck departing the parking lot. The final six photographs show what appears to be the same red pickup truck and are timestamped between 17:48:41 p.m. and 17:51:20 p.m. The first photograph shows the hospital parking lot, and there is no red pickup truck. The next four photographs, from 17:48:49 p.m. through to 17:50:09 p.m., show what appears to be the same pickup truck parked, hood facing out, in the hospital parking lot, and one shows an individual standing by the open back door of the pickup. The last photograph shows the truck departing the parking lot.

99        The investigation report discloses that the grievor told the CSC investigators that his relationship with the girlfriend commenced in January or February 2014. During the course of the hearing, he admitted that in fact the relationship started in October 2013 and that he had stated that it began in January of February 2014 because the girlfriend was still with her husband in October 2013.

100        The investigation report discloses that the grievor stated that while he did at one point have a key to the girlfriend’s home, on May 1, 2014, he did not.

101        Paul See is a CX-01 employed by the CSC at the institution. He has been employed with the CSC since January 2011. He testified that he was a co-worker of the grievor and that he had worked with him more than one hundred times. He stated that he would have no concerns or problems with working with the grievor if he were reinstated as a CX at the institution. He stated that in his opinion, the grievor was professional, never caused any trouble, and never stirred up any trouble with inmates.

102        When asked about his knowledge about the relationship between the grievor and the girlfriend, he stated that he believed they were dating. When asked about what he knew about the events of May 1, 2014, involving the grievor and the girlfriend, he stated he knew very little. He did not elaborate on what he knew. He stated he did not see anything in the press about it.

103        Mr. See was asked about the sign-in procedures at the institution, to which he stated that he could speak only for himself and that he rarely signed in or out using the “old system”.

104        Adrian Orynik is a CX-01 employed by the CSC at the institution. He has been employed with the CSC since April 2012. He testified that he was a co-worker of the grievor and that he had worked with him probably one hundred times. Mr. Orynik was asked if he knew to what charges the grievor had pled guilty. He stated common assault and forcible entry. When he was asked what type of environment these charges had arisen from, he stated that he knew they had arisen outside the workplace but was not sure where the incident happened. He did not elaborate on what he knew or did not know about the events of May 1, 2014, involving the grievor and the girlfriend. He stated that to his knowledge, he did not see anything in the media, although he heard talk at work. Mr. Orynik stated that he would have no issues and no safety concerns about with working with the grievor and that he would trust the grievor to do his job.

105        Bradley Rock is a CX-01 employed by the CSC at the institution. He has been employed with the CSC for approximately nine years. He is currently in an acting position as a social programs officer. He testified that he was a co-worker of the grievor and stated that he had worked with him a lot as they were on the same crew. When he was asked if he would have any difficulty working with the grievor were he reinstated, Mr. Rock stated that he would have no problem as he felt that the grievor was a great and model CX who came to work and did his job. When asked if there was any risk if the grievor were returned to work, Mr. Rock stated that he could not foresee any risk as long as he did his job.

106        Mr. Rock was asked by the grievor’s representative how public the events between the grievor and the girlfriend were, to which he responded that he did not hear anything except that the grievor told him that he had been charged. Mr. Rock then stated that if the grievor had not told him he had been charged, he would not have known.

107        Mr. Rock was asked if the requirement to sign in at the institution was strictly applied in May of 2014. Mr. Rock stated that when he started at the institution, there was never such a requirement; however, for about the past six months, the ID cards have had an embedded chip, and they have to be scanned to enter and leave the institution. Only visitors are required to sign in and sign out.

108        Neither Messrs. Orynik nor Rock provided any testimony of what they knew, if anything, about the events of May 1, 2014.

109        Both Messrs. Orynik and Rock stated that they had no delegated authority to impose discipline and that they had no supervisory authority over CXs.

110        Jason Hope is the warden of the institution and has held that position since 2008. He has been employed in the federal public service with the CSC since 1994, and before being appointed warden, he was the DW of the institution, starting in 2004. He reports directly to CSC Regional Headquarters in Saskatoon, Saskatchewan, and at times directly to National Headquarters in Ottawa, Ontario. One of the warden’s primary duties and responsibilities is the overall operation of the institution.

111        Mr. Hope stated that he had reviewed the investigation report and that he had reviewed the rebuttal. Mr. Hope stated that he conducted a disciplinary hearing with the grievor on October 3, 2014. Present at that hearing, in addition to Mr. Hope and the grievor, was Laura McAdam, a labour relations officer, and Joseph Gobeil, a bargaining agent representative. Mr. Hope stated that at the hearing, he asked the grievor if he had anything further to add (in addition to the rebuttal) and the grievor told him, “No”. Mr. Hope stated that the grievor demonstrated no remorse for his actions with respect to the May 1, 2014, incident. Mr. Hope stated that the grievor displayed denial, disbelief, and frustration with the process. He stated that the grievor appeared to display a lack of understanding of the serious nature of what was transpiring, and even though most people take responsibility for their actions, he did not.

112        Mr. Hope testified that he had a second meeting with the grievor on December 9, 2014. Ms. McAdam was also present; however, the grievor attended that meeting by himself. Mr. Hope testified that he asked the grievor if he wanted a bargaining agent representative to attend and stated that he suggested to the grievor that he have one present, which he stated the grievor declined. At this meeting, Mr. Hope advised the grievor that he was terminating his employment and provided the grievor with the letter dated December 9, 2014 (Exhibit E-1, tab 3), the relevant portions of which are as follows:

…

The purpose of this letter is to advise you of the outcome of your Disciplinary Hearing held on October 3, 2014 concerning allegations you were involved in Inappropriate conduct on May 1, 2014 which resulted in charges of Break and Enter, Assault and Unlawful Confinement on May 7, 2014.

The Correctional Service of Canada (CSC) expects all employees to conduct themselves in a manner consistent with CSC’s Standards of Professional Conduct and Commissioner’s Directives. After a thorough review of the evidence including [the girlfriend]’s statement, as well as the information provided by you during the disciplinary process; I find that your actions on May 1, 2014, specifically that you broke into [the girlfriend]’s residence and assaulted her, were not in accordance with the behaviour expected of a correctional officer. Your actions, although they occurred off duty, in no way minimizes [sic] the seriousness of the behaviour and shows clear disregard for the Standards of Professional Conduct. Consequently you were found to have committed the following infractions of CD 060:Code of Discipline:

· 6 (g) “failing to conform to, or to apply, any relevant legislation, Commissioner’s Directive, Standing Order, or other directive as it relates to his duties;

· 8 (c) “acts, while on or off duty, in a manner likely to discredit the Service;”

After careful consideration, I have determined that you do not demonstrate the values and ethics required of a CSC employee as outlined in the CSC’s Mission Statement. By your actions you have irreparably broken and compromised the employment relationship.      Your misconduct is of such a serious nature that you breached the fundamental principles of trust, integrity, confidence and credibility within the employment relationship which must exist between you and CSC. I am therefore unable to maintain confidence or trust in your ability to perform your duties as an employee of CSC and peace officer.

Accordingly, given the seriousness of your misconduct a decision has been made to terminate your employment for disciplinary reasons. Therefore, pursuant to Section 12(1)(c) of the Financial Administration Act and by the authority delegated to me by the Deputy Minister, I am terminating your employment with the Correctional Service of Canada effective May 29, 2014.

…

113        Mr. Hope testified that the decision to terminate the grievor’s employment was based on the findings set out in the investigation report. He accepted that on May 1, 2014, the grievor had broken into, entered, assaulted, and wrongfully confined the girlfriend. In addition, he accepted that the grievor had not followed policy when he entered and exited the institution on May 5, 2014, to retrieve his uniform; as well, he failed to obtain sick leave notes on May 6, 2014. He stated that the main reason for the termination was the May 1, 2014, incident involving the girlfriend.

114        Mr. Hope testified that in his almost 8 years as a warden and 12 as a DW, this had been the most serious misconduct in relation to a staff member of which he was aware. He stated that the grievor’s actions did not allow him to trust the grievor to carry out his duties as a CX and as a peace officer. He stated that although the grievor’s conduct took place off institution property, it impacted the institution and its entire staff. The CSC has a responsibility to look after vulnerable individuals, and the staff is responsible to see to their safety and security. If an inmate assaults another inmate, staff member, or member of the public, there are consequences, they can be charged, and they can have additional time added to their sentences.

115        Mr. Hope stated that it is important that all his staff members know that he is acting correctly when dealing with behaviour such as that which was exhibited by the grievor. This behaviour could also have impacted the CSC’s external partners. The institution is a very large employer in a town of roughly 45 000 people. It has partnerships with the City, the PAPS, the RCMP, and the Saskatchewan provincial correctional service. Representatives of the institution are front and centre in community events. Even though the incident of May 1, 2014, was not reported in the media, the fact that it happened and is known affects the CSC’s reputation in the community. It does not cast the CSC in a positive light.

116         Mr. Hope testified that when considering the penalty, he took into account the grievor’s record of employment, which he described as “unremarkable”. He stated that he was aware that the grievor had received a commendation for actions (which Mr. Hope himself had written him up for) with respect to an incident in the maximum-security wing of the institution. Mr. Hope stated that he did consider alternatives to termination; however, he felt that in this case, the damage was irreparable. In addition, he stated that the grievor did not take any responsibility for his actions. He stated that the grievor’s suggestion that the girlfriend was intoxicated during the incident, in his view, made the behaviour more unacceptable.

117        Mr. Hope stated that he had lost trust and confidence in the grievor and that with 300 CXs in his charge, he has to have absolute trust and confidence in them to look after both the inmates, who are vulnerable and potentially dangerous, and the other staff members.

118         Mr. Hope testified that the CSC’s “Mission Statement” is an overarching theme of respecting the rule of law, contributing to public safety, and exercising safe, secure, and humane control of the persons in their care. The CSC “Values Statement” (Exhibit E-5) states as follows:

Our Mission

The Correctional Service of Canada (CSC), as part of the criminal justice system and respecting the rule of law, contributes to public safety by actively encouraging and assisting offenders to become law-abiding citizens, while exercising reasonable, safe, secure and humane control.

…

Respect

Respectful behaviours honour the rationality and dignity of persons - their ability to choose their own path, within lawful order, to a meaningful life. A good test of respectful behaviour is treating others as we would like to be treated.

…

Fairness

A complex value in both theory and practice, fairness involves balancing conflicting interests, and exercising impartiality, objectivity, equality, and equity in interpersonal relationships. Similar to respect, a good test for fairness is to treat others as you would like to be treated.

…

Accountability

Accountability involves the notion of being willing and able to explain, answer to and justify the appropriateness of actions and decisions. Accountability is applicable to everyone within CSC. Accountability is also about accepting and ensuring responsibility - providing necessary support, feedback, and oversight.

…

119        Mr. Hope testified that the fact that the grievor was a peace officer meant that he was held to a higher standard. A peace officer is charged with upholding and enforcing the law and protecting the public. A peace officer has the authority to place people under arrest and use force, which at times can be deadly.

120        In cross-examination, Mr. Hope agreed that he did not ask the grievor for a sick note.

121        In cross-examination, Mr. Hope stated that he received the investigation report in July 2014 and that he would have read it then and then put it aside and read it a second time later on. When asked why he waited to hold a disciplinary hearing (October 2014) and then to render discipline (December 2014), he stated that there were several delays including a request from the grievor, vetting, and him being away from the institution.

122        In cross-examination, Mr. Hope stated that he was not aware of circumstances in which the grievor had ever been violent at work with either staff members or inmates; nor was he aware of the grievor having been involved in incidents involving use of force in the institution.

123        When Mr. Hope was asked in cross-examination how he determined that the grievor was a risk in the workplace, he stated that it was not just that he was a risk but that it was a matter of both trust and the grievor’s demonstrated poor judgement. He further stated that the grievor demonstrated difficulty controlling his impulses.

124        In cross-examination, Mr. Hope was put to a series of questions with respect to the fact that the day on which the incident took place, the grievor had learned that the woman he was in a relationship with was cheating on him and that the relationship had come to an end, and as such, he was in a such a situation that his behaviour could have become irrational. Mr. Hope responded by stating that, in his position as a CX, the grievor was trained to work in stressful situations.

III. Summary of the arguments

A. For the respondent

1. Board File No. 566-02-10050: suspension without pay

125        The employer submitted that this grievance should be dismissed on the basis of the following three arguments:

1. The grievance is moot as the employer terminated the grievor’s employment retroactive to the date of his suspension without pay, which the grievor grieved and that is disciplinary under s. 209(1)(b) of the Act.

2. The suspension without pay is administrative in nature, and as such, a panel has no jurisdiction.

3. If the suspension was disciplinary, then the employer had the authority to suspend the grievor, and it was reasonable in all the circumstances.

126        Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, held that for a matter to not be moot, there must be a tangible issue to be decided. Adjudicators have applied this concept regularly. The only live issue is the termination of the grievor’s employment, which is retroactive to the date of the suspension. The Board’s predecessor, the PSLRB, followed this line of reasoning in Brazeau v. Deputy Head (Department of Public Works and Government Services),2008 PSLRB 62; Shaver v. Deputy Head (Department of Human Resources and Skills Development),2011 PSLRB 43; and Bahniuk v. Canada Revenue Agency,2012 PSLRB 107.

127        The action taken by the CSC to suspend the grievor without pay pending the completion of the investigation was not disciplinary but administrative. The principle, as set out in Basra v. Deputy Head (Correctional Service of Canada),2014 PSLRB 28, is that the nature of the sanction must be assessed at the time it was imposed. Was the employer’s intention disciplinary when the suspension was imposed? Ms. Koczka imposed the suspension and testified that when she did so, she was not contemplating discipline; she took that step to allow the investigation to take place. There is no evidence that the action was disciplinary. The fact that an investigation may take a long time does not make an administrative suspension disciplinary.

128        In Canada (Attorney General) v. Frazee,2007 FC 1176, the Federal Court states that not every act that could be disciplinary is discipline. The question to be asked is whether the employer intended to impose discipline. Chafe et al. v. Treasury Board (Department of Fisheries and Oceans),2010 PSLRB 112, stands for the proposition that not every financial or economic loss is a financial penalty and amounts to discipline under s. 209(1)(b) of the PSLRA.

129        As the evidence clearly disclosed no intent to discipline, only to suspend pending an investigation, the employer’s action was administrative, not disciplinary, and the panel has no jurisdiction.

130        The respondent submitted that in the alternative, if I find that its action was disciplinary, it had just cause to discipline, and the action was warranted. I was referred to Lapostolle v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 138, upheld in 2013 FC 895; Richer v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 10; and Yarmolinsky v. Canada (Canada Customs and Revenue Agency),2005 PSSRB 6.

131        The respondent also submitted that it has authority under the “Global Agreement Between Correctional Service of Canada (CSC) and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN)”, dated November 7, 2013.

132        The respondent also referred me to Larson and to Gill v. Treasury Board (Department of Human Resources and Skills Development), 2009 PSLRB 19. Ms. Koczka, the acting warden at the time of the suspension, testified that she suspended the grievor because at the time the incident came to her attention, she determined that his presence at the institution presented a risk. She stated that she considered the following:

1. he was a peace officer;

2. the allegations against him were serious;

3. the allegations involved violence;

4. the allegations involved violence to another CSC employee; and

5. there was a risk to the employer’s reputation as the institution was a large employer in a small town.

2. Board File No. 566-02-10916: termination of employment

133        The respondent submitted that it had just cause to discipline the grievor and that the discipline it imposed was appropriate.

134        A key factor in this case are the facts presented by the employer’s witnesses versus those of the grievor and in particular by the grievor himself. There is little common ground between the grievor’s evidence and that of the girlfriend, and it is up to the panel to assess credibility. The test to assess credibility is set out at Faryna v. Chorny,[1952] 2 D.L.R. 354 (BCCA). The girlfriend was a credible witness who testified in a forthright manner and who recalled clearly the events of the day and is still affected by them. Her testimony as to what happened on May 1, 2014, was consistent with the reports she made to both the PAPS and the CSC investigators. She did so despite the fact that parts of her evidence portrayed her in a less-than-positive manner.

135        The grievor’s testimony contradicted that of the girlfriend, except for those facts that portrayed him in a favourable manner. In addition, his story changed. He provided one version to the CSC investigators, another in his rebuttal, and again another in his testimony at the hearing. In addition, he pled guilty to forcible entry and assault with respect to the events of May 1, 2014, concerning the girlfriend. All this brings into question his credibility.

136        The grievor testified that when he was with the girlfriend in her home, during the early hours of May 1, 2014, he was calm but disappointed in her behaviour, yet in the text messages he sent to her male friend, his inflammatory language did not show his allegedly calm demeanor.

137        The grievor showed no remorse; he in fact blamed the girlfriend. He further testified that he pled guilty to avoid paying legal fees and being hampered with a criminal record and that his guilty plea was not an admission of guilt. These actions certainly do not demonstrate remorse or responsibility for his actions.

138        The grievor testified that he did not provide portions of his story to the CSC investigators because he wanted to exercise his right to remain silent in the face of the pending criminal charges and trial. That is no excuse. Hughes and Titcomb v. Parks Canada Agency,2015 PSLREB 75, stands for the proposition that employees must cooperate with their employers during administrative investigations despite that they may be taking the advice of counsel with respect to criminal charges that may arise out of the events that led to the investigation.

139        In Toronto (City) v. C.U.P.E., Local 79,2003 SCC 63, the Supreme Court of Canada held that a criminal conviction is admissible as prima facie evidence that the act took place. In Tobin v. Canada (Attorney General),2009 FCA 254, the Federal Court of Appeal stated that courts have consistently held that a period of probation is not a light sentence and can result in serious consequences for those who breach the restrictions to the conditions imposed. This grievor is trying to diminish his actions and the probation that was imposed upon him. Neither the fact that he pled guilty to two serious charges under the Criminal Code (R.S.C. 1985, c. C-46; “the Criminal Code”) nor the probationary order should be taken lightly; nor do they diminish the seriousness of his actions.

140        During the testimony of the grievor, he testified to certain facts, which were not put to the girlfriend during the course of her cross-examination. This violates the rule in Browne v. Dunn, (1893) 6 R. 67 (H.L.) (“Browne and Dunn”). That rule requires a party, if he or she intends to discredit the testimony of an opposing witness, to put those specific facts to that witness and allow that witness to provide an answer to those facts, as alleged. During the course of his evidence, the grievor testified with respect to the following three factual areas, none of which were put to the girlfriend:

1. The girlfriend was intoxicated at the time of their interaction during the early hours of May 1, 2014.

2. The girlfriend was financially dependent on the grievor.

3. The girlfriend had a history of promiscuity.

141        With respect to the allegation that the girlfriend was intoxicated at the time of the incident during the early hours of May 1, 2014, the fact put to her was whether she had consumed alcohol at some point before her return home on May 1, 2014. Her evidence was that she had had a couple of drinks. The type of drinks, the amount consumed, and the time she drank were not posed to her; nor was the allegation put to her that she was intoxicated. It is unfair that none of these alleged facts was put to the girlfriend; nor was the allegation that she had consumed too much alcohol and was intoxicated, and no weight should be given to the grievor’s evidence on that issue.

142        When the grievor was interviewed as part of the CSC investigation, he never suggested that the girlfriend was intoxicated. The first time it was raised was in his rebuttal to the investigation report.

143        The allegation that the girlfriend was financially dependent on the grievor and that it was the reason she did not want her relationship with him to end was not raised with her during her cross-examination. Her financial situation was never raised at all, and as such, the grievor’s evidence about it should be given no weight.

144        During her cross-examination, neither the allegation that the girlfriend was promiscuous nor her alleged questionable past moral conduct was raised with her, and as such, the grievor’s evidence on those allegations should be given no weight.

145        Three witnesses were brought forward to testify on the grievor’s behalf. All were CXs, all were male, and all stated that they would have no difficulty working with him in the future. It was clear that they had not worked a lot with the grievor in the past and that they were not basing their opinions on their knowledge of the facts relating to the incident of May 1, 2014.

146        The respondent submitted that the facts as alleged by the employer’s witnesses and specifically by the girlfriend were true and credible, while the grievor’s evidence was not.

147        Mr. Hope based his decision with respect to terminating the grievor’s employment on the investigation report and the rebuttal. He took all the information into consideration and determined that the grievor could not be trusted.

148        The respondent stated that despite the nature of the actions that led to the discipline, the grievor has shown no responsibility or remorse for his actions, which would be consistent with his role both as a correctional and a peace officer. It also goes directly to the bond of trust, which is a critical element for the CSC and its CXs. I was referred to Lapostolle; Richer; Simoneau v. Treasury Board (Solicitor General of Canada - Correctional Service),2003 PSSRB 57; McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26; Boisvert v. Treasury Board (Solicitor General - Correctional Service Canada), PSSRB File Nos. 166-02-25435 and 26200 (19970410),[1997] C.P.S.S.R.B. No. 32 (QL); Flewwelling v. Treasury Board (Fisheries & Oceans), PSSRB File No. 166-02-14236 (19840328), [1984] C.P.S.S.R.B. No. 40 (QL), upheld in [1985] F.C.J. No. 1129 (QL); and Trenholm v. Staff of the Non-Public Funds, Canadian Forces,2006 PSLRB 66.

149        Mr. Hope testified as to trust and integrity and how it is important in a correctional services setting. He stated that he was not certain that the grievor would not commit an act like the one at issue in the future and that as warden, he could not risk that behaviour and violence happening again.

150        Mr. Hope also testified as to the impact of the grievor’s actions on the CSC’s reputation, which is based on his years of experience as both a DW and a warden. As set out in Tobin v. Treasury Board (Correctional Service of Canada),2011 PSLRB 76, the employer is not required to have empirical evidence of damage. The Federal Court of Appeal stated that in its decision in Tobin, quoting the Supreme Court of Canada in Fraser v. Canada (Public Service Staff Relations Board),[1985] 2 S.C.R. 455, the question calls for the application of common sense and measured judgement. Press coverage is not a determinative factor. On that point, I was also referred to Basra v. Deputy Head (Correctional Service of Canada),2014 PSLRB 28, and Boisvert.

151        The grievor’s conduct clearly contravened both the CSC’s “Standards of Professional Conduct” and its “Code of Discipline” (CD-060). Mr. Hope’s actions, given the nature of the facts, were consistent with protecting both inmates and staff. The grievor should not be reinstated due to the nature of his conduct, his lack of remorse, and his lack of acceptance of responsibility for his actions. The grievor, as a CX, was a peace officer and was responsible for enforcing the law. Breaching the law is in contradiction to this responsibility. The grievor’s off-duty conduct must reflect positively on the CSC; his actions on May 1, 2014, did not, and as such, he breached the standard of conduct that required him to be a role model.

152        The respondent admitted that the fact that the grievor did not sign in to the institution when not on duty to retrieve his uniform would not have warranted terminating his employment.

153        Mr. Hope testified that he considered mitigating circumstances in that the grievor had a good performance record and that Mr. Hope had written up a commendation for the grievor’s actions on one particular occasion. However, in Mr. Hope’s opinion that was not sufficient to warrant discipline of a lesser nature given all the circumstances.

154        The respondent also referred me to Millhaven Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670,[1967] O.L.A.A. No. 4 (QL). Of the five potential criteria used to justify discipline for conduct outside the workplace, the grievor’s actions met four, as follows :

1. The employer’s reputation has been harmed.

2. The behaviour complained of renders the grievor unable to carry out the duties of his job.

3. The grievor has been guilty of a serious breach of the Criminal Code, thus rendering his conduct injurious to the general reputation of the respondent and its employees.

4. The behaviour complained of makes it difficult for the employer to trust him and to be able to properly carry out its function of efficiently managing its works and directing its workforce.

155        The respondent referred me to Ranu v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 89, in support of the proposition that an adjudicator should not intervene and alter discipline just because a lesser penalty could be sufficient in the circumstances.

156        Given the nature of the grievor’s actions, the seriousness of the charges, and his lack of remorse and acceptance of responsibility, terminating his employment was the appropriate discipline, and it should not be altered.

B. For the grievor

1. Board File No. 566-02-10050: suspension without pay

157        The grievor submitted that the suspension without pay was disciplinary and therefore was within the jurisdiction of the panel under s. 209(1)(b) of the Act.

158        The DW testified that she relied on the Larson Criteria. If the employer had properly applied the Larson Criteria, the grievor would not have been suspended. Three CXs from the institution testified that the grievor would not be a risk to either inmates or staff.

159        Brazeau states that when looking at a case of a suspension without pay that the employer maintains was administrative in nature, the panel has to look at the employer’s real intent at the time. In this case, the incident took place on May 1, 2014, and the investigation was completed in July 2014, but no decision was made based on the investigation until December. Four months passed. It is the grievor’s position that that elapsed time was excessive, and as such, the suspension without pay was disciplinary in nature.

2. Board File No. 566-02-10916: termination of employment

160        The reasons for the termination of employment, as set out in Warden Hope’s letter to the grievor of December 9, 2014, were that the grievor had committed the following infractions of the Code of Discipline:

1. 6(g): failing to conform to, or apply, any relevant legislation, Commissioner’s Directive, Standing Order, or other directive as it relates to his duties;

2. 8(c): acts, while on or off duty, in a manner likely to discredit the Service.

161        The respondent and grievor submitted two different versions of what transpired, and the question to be answered is: Which version is more credible? The appropriate test when faced with questions of credibility is articulated in Faryna.

162        The grievor submitted that the girlfriend’s evidence was inconsistent. According to her testimony, she stated that she had tried to cut off all communication with him; however, Exhibit G-1 is a text message exchange between them, and the last text message was sent less than 24 hours before the events of the early morning of May 1, 2014, in which their relationship appears to be good. At this time, the grievor was still in a relationship with the girlfriend.

163        With respect to the evidence on the alleged break and enter, the only evidence was from the girlfriend. She stated that her kitchen window screen was broken. Constable Banadyga testified that while he saw that the screen was broken, he did so a number of days if not weeks after the day on which the events took place, and he could not state with any certainty that the grievor broke the screen. The grievor denied breaking and entering into the girlfriend’s home and testified that he entered through the front door.

164        With respect to the assault, the girlfriend testified that the grievor punched her on her wrist. He testified that he used a defensive deflective manoeuver on her when she grabbed his wrists because he did not want her touching him in the circumstances.

165        It is the grievor’s position that the girlfriend was deceitful when she wrote her statement to the police. She painted him as a monster because she felt guilty due to her cheating.

166        The girlfriend’s portrayal of herself in a negative light is not relevant. The grievor also portrayed himself in a negative light. He admitted that he took her mobile telephone as well as a watch and necklace that belonged to her from her dresser in her home. He also admitted ripping apart a teddy bear.

167        Ms. Shore stated in her evidence that the investigators did not find the grievor’s version of events credible because he lied about being in the parking lot of the girlfriend’s workplace. It is important to appreciate the circumstances: the grievor was tired, as he had not slept for several hours, and it is plausible that he did not recall this event.

168        Page 17 of the investigation report stated that on a balance of probabilities, the grievor breached paragraph 6(g) of the Code of Discipline when he contravened “Standing Order 566.1, Control and Entry and Exit from Institutions”, paragraph 8, which requires staff members who return to the institution after normal working hours and who are not on duty to complete the Official Visitor Register at arrival and departure, by failing to complete it on May 5, 2014, on his return to the institution on his day off to retrieve his uniforms. While the grievor admitted that he might have failed to complete it on May 5, 2014, he, as well as two other CXs, Messrs. See and Rock, testified that if staff members returned after hours, they did not sign in or sign out in the Official Visitor Register.

169        Page 17 of the investigation report stated that on a balance of probabilities, the grievor breached paragraph 6(c) of the Code of Discipline when he obtained a doctor’s certification to be absent from work due to illness when he was in fact being arrested on a criminal charge. The respondent did not prove that the sick note submitted by the grievor (Exhibit G-2) was fraudulently obtained. The date and timestamp noted on the note from the grievor’s doctor were May 6, 2014, and 10:55 a.m., respectively. The investigation report, at page 5, states that the grievor phoned the institution on May 6, 2014, at 3:18 p.m. According to him, he did not call in at that time but at an earlier time because at 3:18 p.m., he was already in custody.

170        As the investigation report was incorrect about the doctor’s certificate, it could also have other errors.

171        The grievor did plead guilty to charges of forcible entry and common assault. He did so on the advice of counsel and due to the high cost of defending the charges and the offer of a clean record. A clean criminal record is worth a lot. The fact that he pled guilty did not mean that he agreed with the alleged facts. The respondent still had to prove the facts.

172        The grievor received a conditional discharge and has followed the conditions imposed in his order of probation.

173        According to the letter of termination, the grievor did not demonstrate the values and ethics required of a CSC employee. The Values and Ethics Code for public servants relates to professional duties. The events that led to disciplining the grievor were not related to professional duties. It is not the respondent’s responsibility to scrutinize the off-duty conduct of its employees.

174        With respect to the alleged breach of the Code of Conduct by acting in a manner likely to discredit the CSC, the employer never proved that it was discredited. The events of May 1, 2014, involving the grievor and the girlfriend were never made public in a newspaper or other media. To prove discredit, it has to be known, and not just to the staff. On that point, the grievor referred me to Labadie v. Deputy Head (Correctional Service of Canada),2008 PSLRB 85, and MacLean v. Deputy Head (Department of Public Works and Government Services), 2011 PSLRB 40.

175        The argument advanced by the respondent that Prince Albert is a small town is not valid. It is the third-largest city in Saskatchewan.

176        The grievor was not terminated due to his criminal conviction; therefore, little weight should be given to that fact.

177        The question is whether the disciplinary penalty given to the grievor was appropriate given the nature of the proven misconduct and in the face of the mitigating factors that existed at the time. The grievor referred me to Kinsey v. Deputy Head (Correctional Service of Canada),2015 PSLREB 30. Assuming the misconduct occurred, the penalty was excessive. The Warden stated that if it happened once, it could happen again, yet it has not happened again.

178        With respect to mitigating factors, the grievor referred me to Brown & Beatty, Canadian Labour Arbitration,at para. 7:4422, submitting that mitigating factors include the rehabilitative potential, the employee’s state of mind at the time, and the employee’s record. Three former colleagues, all CXs, testified that they would have no difficulty working with the grievor if he were reinstated. This is significant as in a penitentiary setting, one’s safety is in the hands of one’s co-workers, who have to be trusted. The grievor had a clean disciplinary record. At the time of the events on the morning of May 1, 2014, he had just learned that the girlfriend was cheating on him. These factors must all be taken into consideration.

179        With respect to the respondent’s submission about the girlfriend’s intoxication, she was given the opportunity to express herself on this topic. The issue of her intoxication was not a new issue as it was raised in the grievor’s rebuttal.

180        There were few aggravating factors. On that point, I was referred to Burton v. Treasury Board (Solicitor General Canada - Correctional Service),2004 PSSRB 74; Rose v. Treasury Board (Correctional Service of Canada),2006 PSLRB 17; MacArthur v. Deputy Head (Canada Border Services Agency),2010 PSLRB 90; and Ranu. In Burton,the adjudicator reduced the employee’s termination to a demotion from his correctional supervisor position to a CX-02 position with a lengthy suspension of over a year. In Rose, the adjudicator reduced the termination of a CX-01 to a lengthy suspension of one year. In MacArthur,the adjudicator reduced the grievor’s permanent demotion from border services officer to a clerk and replaced it with a 30-month demotion. In Ranu, a 10-day suspension was reduced to a 3-day suspension.

181        The grievor cooperated with the investigation. While his criminal proceedings were ongoing, he followed the advice of his lawyers and did not say much. However, once those proceedings were complete, he spoke freely, including during his testimony at this hearing.

182        The grievor asked that both grievances be allowed and that he be reinstated to his position as of May 29, 2014, with full pay and benefits.

C. The respondent’s reply

183        The evidence of the break and enter came from Constable Banadyga and the girlfriend, which was sufficient for both a criminal charge that eventually led to a guilty plea to forcible entry. Forcible entry is not someone letting you in.

184        With respect to the submission that the grievor was tired on May 1, 2014, and that he forgot to mention that to the Warden when he met with him to discuss this matter or set it out in his rebuttal is something new that came up only at the hearing.

185        With respect to the submission that the grievor is rehabilitated, Casey v. Treasury Board (Public Works and Government Services Canada),2005 PSLRB 46, stands for the proposition that an employee’s rehabilitation does not render a disciplinary termination inappropriate. In Rose, the grievor admitted what he did and expressed remorse. In MacArthur,again the grievor apologized. In Burton, the facts were much different.

IV. Reasons

A. Board File No. 566-02-10050: suspension without pay

186        As set out in Borowski and a long line of Board cases that have applied it, for a matter to not be moot, there must be a tangible issue to be decided. The grievor was in fact terminated from his employment retroactively to the date on which he was suspended without pay. That issue is a real and tangible issue that is not only the subject of a grievance but also is a grievance before me. The relief requested by the grievor in his suspension without pay grievance is the same relief that he requested in his termination grievance, which is to be reinstated with full pay and benefits as of May 29, 2014. I also note that the grievor’s representative was unable to refute the employer’s argument on this issue. As such, I find that the grievance in Board File No. 566-02-10050 is moot and shall be dismissed.

187        As I have decided that the suspension without pay grievance is moot, I need not address the respondent’s other arguments on it.

B. Board File No. 566-02-10916: termination of employment

188        Adjudication hearings with respect to discipline under s. 209(1)(b) of the Act are hearings de novo,and the burden of proof is on the respondent.

189        The usual basis for adjudicating issues of discipline is by considering the following three questions (see Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P -162,[1977] 1 CLRBR 1): Was there misconduct by the grievor? If there was misconduct, was the discipline imposed by the employer an appropriate penalty in the circumstances? If the discipline imposed was not appropriate, what alternate penalty is just and equitable in the circumstances?

190        With respect to the first question to be determined, whether the actions of the grievor amounted to misconduct, many of the salient facts are in dispute.

191        Credibility is at the forefront of this matter. Issues of credibility are dealt with by the test articulated in Faryna, in which the British Columbia Court of Appeal stated as follows:

…

If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility… A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions… .

192        The rule in Browne and Dunn requires that a party that is going to challenge the credibility of a witness by putting forward contradictory evidence must put that contradictory evidence to that witness. This is to allow the witness whose evidence they are trying to contradict an opportunity to explain. If the rule in Browne and Dunn is not followed, the court or tribunal will not allow that party to rely on the contradictory evidence.

193        In defence of the allegations made against him, the grievor took the following positions:

1. He did not do what the girlfriend alleged he did on May 1, 2014.

2. His behaviour was understandable because he had just learned that the person that he was in a relationship with had been cheating on him.

3. His behaviour on May 1, 2014, was calm and reasonable as the circumstances unfolded.

194        The grievor’s position is oxymoronic. If he did not act in the manner in which the CSC alleged, his actions were not improper, did not amount to misconduct, and would not have to be justified as understandable given the circumstances of the situation.

195        The evidence disclosed that the grievor’s version of what happened during the early hours of May 1, 2014, unravelled at the outset of his recounting of the events.

196        The grievor stated that on April 30, 2014, at around 11:00 p.m., after his shift ended, he proceeded to the girlfriend’s house, as they had prearranged to get together. This alleged prearranged meeting was not referred to in any of the documents produced at the hearing, including:

· the interview notes taken by the CSC investigators of the interviews of the grievor and the girlfriend and set out in Appendices 22, 23, and 24 of the investigation report; and

· the grievor in his rebuttal.

197        I was not told by the grievor how this meeting was prearranged. The evidence before me was that he and the girlfriend had engaged in text messaging starting at 2:33 p.m. on April 29, 2014, and concluding with the April 30, 2014, 9:38 a.m. text from the girlfriend that said: “Haha baking cookies. Then Off to the gym”. Nothing there suggests a prearranged meeting.

198        The grievor produced the texting chain from April 29 at 2:33 p.m. to April 30, 2014, at 9:38 a.m. at the hearing. This suggests to me that he had retained texts on his mobile phone, at least as far back as the start of that texting chain on April 29, 2014, at 2:33 p.m. Both he and the girlfriend testified that he sent several texts (by his admission, around 10) and that he left numerous messages for her on her mobile phone on the evening of April 30, 2014, and into the early hours of May 1, 2014. None was produced at the hearing.

199        The grievor’s allegation that he and the girlfriend had prearranged to meet at her house on the evening of April 30, 2014, after his shift ended was not put to her in cross-examination. This was a breach of the rule in Browne and Dunn.

200        The girlfriend stated that during the evening of April 30, 2014, and the early part of the morning of May 1, 2014, before she went home, she was with her female friend and then her male friend. If she had prearranged to meet up with the grievor, why would she go to her male friend’s home knowing that she had prearranged to meet with the grievor at her home after his shift ended? This makes no sense. While the grievor suggested that it was prearranged, and hence, is why he was at the girlfriend’s home, the balance of the evidence, the texts they exchanged (both produced and not produced), and the girlfriend’s absence, not only at the alleged appointed time but also many hours later, and her whereabouts of being intimate with another man, the absence of any reference to this prearranged meeting at any other time during the investigation, and this prearranged meeting never being put to the girlfriend in cross-examination, strongly suggest to me that there was no prearranged meeting. The grievor’s story about the prearranged meeting with the girlfriend at the end of his shift on April 30, 2014, does not pass the test set out in Faryna.

201        The girlfriend stated that the grievor did not have a key to her home. He testified that he did. The investigation report states that the grievor admitted to the CSC investigators that on May 1, 2014 he did not have a key. If I am to accept the grievor’s evidence that he did have a key, it would suggest that the relationship between them was one in which he could enter and exit her home as he pleased. However, that did not happen on the night of April 30 and morning of May 1, 2014. The grievor stated that he went to her house and waited outside. If he had a key and a prearranged meeting, why did he just wait outside in a truck instead of going in? In fact, the grievor stated that he not only waited but also, when the girlfriend did not initially show up, he went back to his house, took a shower, and then returned. Again, he did not go into her home but sat outside in his truck. This story, like the story of the prearranged meeting, does not withstand the scrutiny of the test set out in Faryna.

202        Other particulars of the grievor’s story with respect to waiting for the girlfriend at her house also do not make sense. When his representative asked him about what time the girlfriend returned to her house, he stated that he was not sure, that it was late, and that he “assumed she went to the bar.” Why would he assume that the girlfriend went to “the bar” when according to him they had prearranged to meet at the end of his shift? Again, this does not stand up to the test in Faryna.

203        The grievor testified that when the girlfriend did arrive at her house, when she exited her vehicle, she was stumbling and she was drunk and that he asked her why she was driving in that “drunk condition” and then repeated that she was “stumbling”. He was asked by his representative what his state of mind was at that time, and his response was the following: “I was worried, I guess, being that her phone was off or dead”; he then stated: “I knew she was out drinking, and I didn’t want her out driving.” This of course begs the question as to how the grievor knew that the girlfriend would have been out drinking or why he thought (and suggested) she had been at “the bar”? Did they have this discussion before the night of April 30, 2014? Did the girlfriend tell him she was going out drinking with her female friend at a bar? If so, this should have been put to the girlfriend when she was in the witness box. If this was fact, and he and the girlfriend were supposed to meet up after his shift, why did he not go to the bar? Again, his story does not meet the test in Faryna.

204        What is even more curious is the grievor’s evidence in response to the question about what his state of mind was when the girlfriend stumbled home drunk and he stated that he was worried, that he knew she had been out drinking, and that he did not want her driving. The grievor was a peace officer by virtue of both his CSC position and as an RCMP auxiliary constable. He testified that as an RCMP auxiliary constable, he had all the power and authority accorded to a full-time member of the RCMP. He could stop vehicles as well as arrest and ticket individuals. It is in that way that I find his evidence about the girlfriend and the allegation of her intoxication and stumbling extremely troubling. While he stated that he was concerned because she came home stumbling and drunk (sometime between 3:00 and 3:45 a.m.) and he did not want her to drive in that condition, a scant two to two-and-a-half hours later (around 6:00 a.m.), he allowed her (whom, according to the grievor, he was in a committed relationship with and who was a mother to several children) to get into her vehicle and drive to work at the local hospital. It is common knowledge that alcohol is metabolized roughly at a fixed rate, and as such, if the girlfriend was stumbling drunk at 3:00 or 3:45 a.m., it was impossible that within two hours she would have been sober enough to drive to work, let alone be in any condition to be treating patients in a health care facility. Either the girlfriend was not drunk or the grievor, by allowing her to drive and work while she was stumbling drunk, was not just grossly negligent as a peace officer but also as a human being.

205        The grievor testified that the reason he did not tell the CSC investigators about the girlfriend being drunk was that he was exercising his right to remain silent on advice from his criminal lawyer. That makes no sense. On May 28, 2010, he spoke freely to the CSC investigators about what happened April 30 and May 1, 2014, and by that date, he had been charged by the PAPS, but his charges had not been dealt with by the courts. The grievor provided his rebuttal to the investigation report on September 19, 2014. In it, he states that the girlfriend “was completely intoxicated”. At the time he made his rebuttal, his criminal charges were still pending. Engaging his right to remain silent about what he did is one thing; however, it does not explain why he did not mention the alleged intoxication during the CSC investigation but did so in his rebuttal, both of which were done after he was charged but not tried by the courts.

206        While the grievor’s representative did ask the girlfriend how many drinks she had when she was with her female friend and her male friend, the allegation that the girlfriend was inebriated or stumbling drunk, as suggested by the grievor in his evidence, was never put to the girlfriend. The grievor in his evidence stated that the initial conversation he had with the girlfriend when she arrived home at 3:00 a.m. (or thereabouts) was about her being drunk and driving in that condition. His representative never put this alleged discussion to the girlfriend. Again, these are breaches of the rule in Browne and Dunn.

207        All these inconsistencies with the grievor’s story about the girlfriend allegedly being intoxicated do not meet the test set out in Faryna.

208        In his testimony, the grievor stated that when he and the girlfriend were in her house during the early hours of May 1, 2014, and he ended the relationship with her, she was begging him not to leave her as she needed him, allegedly for his financial support. This allegation appears in no document produced in the hearing. The grievor did not lead any evidence about providing for the girlfriend financially in any way. If this was the case, I suspect that it could have easily been established by some documentation, such as funds being transferred from bank accounts, cheques being written, mortgage or rent payments being made, utility payments being made, or vehicle lease or loan payments being made. No such evidence was ever brought forward. In addition, during the grievor’s evidence and in the vein of testimony about the girlfriend needing his financial support, he stated that the girlfriend had said to him that: “I fucked up my life for you ... I will fuck up your life for you.” In cross-examination, none of these allegations was put to the girlfriend. This was again a contravention of the rule in Browne and Dunn.

209        In his evidence, the grievor made allusions about the girlfriend’s moral conduct, suggesting that she was promiscuous and of poor moral character. I am at a loss to understand what this has to do with the grievor’s conduct.

210        The grievor suggested that he did not disclose all these issues of the girlfriend’s alleged intoxication, financial reliance upon him, and promiscuity due to legal advice about speaking about the incident pending his criminal proceedings. How the girlfriend’s alleged intoxication, financial circumstances, and her moral conduct had anything to do with the grievor’s right to remain silent in the face of criminal proceedings is a mystery to me and was never explained.

211        During the course of his examination-in-chief, the grievor’s representative asked him why he was in the girlfriend’s house for so long, to which he replied that they “were engaged in a conversation.” She then asked him how many times the girlfriend asked him to leave, to which the grievor replied: “I don’t know”, and then continued by stating: “... it was the opposite; she didn’t want me to leave.” This exchange was very telling. If the girlfriend had not asked the grievor even once to leave her home, then why would he answer, “I don’t know”? I expect that what happened was that he initially answered it truthfully, only then realizing his mistake, and that he quickly tried to recover with the response, “She didn’t want me to leave.”

212        The grievor’s recitation about what transpired in the girlfriend’s home from the time he and she were together in the house until they left in their respective vehicles does not bear close scrutiny. It is not, as stated in Faryna, “... in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” The grievor suggested that the girlfriend was acting in a manner that would have suggested that she wished to reconcile the relationship, while he had decided that the relationship was over due to her behaviour. His recounting of events suggests that while he was the one ending the relationship, he did engage the girlfriend in a conversation, and when he would not yield to her requests for reconciliation, she would become angry, aggressive, and violent. However, this account does not correspond with other parts of the evidence.

213        The grievor admitted to stealing an expensive watch and necklace he had given to the girlfriend as gifts. While he admitted to exchanging text messages with the girlfriend’s male friend, he would not admit to the specific wording of the messages, although they were obtained as part of the investigation. Not only did he impersonate the girlfriend on her phone to engage her male friend, it is clear that the grievor was also angry and upset and that his tone was threatening. While he suggested to me in his evidence that he had broken it off with the girlfriend and was not acceding to her requests for reconciliation, his texts in this texting chain are the most glaring evidence that the situation was the opposite of what he alleged. The grievor stated the following to the girlfriend’s male friend at points in the texting chain:

· “It the boy friend u dick”

· “U need to Fuck off!!”

· “Loose this number trust me!”

· “We will b seeing u later. Both of us”

· “... this number!!! I am not kidding!”

· “Leave her allone”

· “we r an item.there is no stalking!! Loose the number!!!! For real”

[Sic throughout]

214        All the text messages the grievor sent on the girlfriend’s phone to her male friend contradict the grievor’s evidence before me. Why would he say those things to the girlfriend’s male friend if he viewed his relationship with the girlfriend as not only over but over because he chose to end it?

215        The grievor also followed the girlfriend to her work at the hospital. Initially, he denied that he followed her to work, but when he was shown the surveillance camera photos (in the investigation report), he conceded that he must have followed her. What is interesting is that while initially he denied following her and then conceded that he must have because he saw the photos, he somehow then recollected that in fact they were having a conversation while they were driving, at times side by side, through the windows of their respective vehicles, and that she was still trying to work things out with him. This recitation of events does not make any sense. If the grievor had broken things off, and the girlfriend needed to go to work, why would he follow her? Why would he not just let her go on her way and let her be and go in his own direction home? It is clear that the girlfriend was going to work; that was never in question and that is where she went and where she parked her vehicle. If the grievor’s version of events about breaking off the relationship with the girlfriend was accurate, there would have been no reason for him to follow her or to end up at the hospital.

216        The girlfriend testified that the grievor not only took her phone without her permission and would not return it but also that he retained possession of the phone well into the working hours of May 1, 2014. He suggested that he took her phone to delete his contact information and pictures. That is no excuse. It was not his phone, and he had no right whatsoever to take it from her home or elsewhere, keep it, and delete information and pictures from it. The grievor stated that he tried to give the girlfriend her phone back but was unable to. This, quite frankly, stretches the imagination. How difficult would it have been to leave the phone with her at her home or give her the phone as they were both leaving if, as the grievor suggests, she was trying so hard to reconcile with him. Indeed, he was at her place of work not once but twice before he returned to the hospital parking lot on a third occasion where, without permission, he accessed her vehicle and left some of her belongings.

217        At paragraphs 33 through 37 of Toronto (City), the Supreme Court of Canada addressed the issue of “collateral attack”. The Court stated as follows:

The rule against collateral attack bars actions to overturn convictions when those actions take place in the wrong forum. As stated in Wilson v. The Queen, [1983] 2 S.C.R. 594, at p. 599, the rule against collateral attack

has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally - and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

... Binnie J. described the rule against collateral attack in Danyluk, supra, at para. 20, as follows: “that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it” (emphasis added).

Each of these cases concerns the appropriate forum for collateral attacks upon the judgment itself. However, in the case at bar, the union does not seek to overturn the sexual abuse conviction itself, but simply contest, for the purposes of a different claim with different legal consequences, whether the conviction was correct. It is an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force, as it clearly does. Prohibited “collateral attacks” are abuses of the court’s process. However, in light of the focus of the collateral attack rule on attacking the order itself and its legal effect, I believe that the better approach here is to go directly to the doctrine of abuse of process.

…

In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would … bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55 -56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

Once circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. [Emphasis added.]

As Goudge J.A.’s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice....

[Emphasis in the original]

218        The grievor stood before a judge of the Provincial Court of Saskatchewan and pled guilty to the charges of forcible entry and assault, respectively, under ss. 72(1) and 266 of the Criminal Code. The Supreme Court has stated that it is an abuse of process and a collateral attack for him to come before this tribunal and attempt to state as he did that the events and facts to which he pled guilty to and were adjudged by that Court are in fact incorrect or wrong. The time and place to challenge the factual elements that led to the criminal charges, the plea of guilty, and the convictions were before the Provincial Court of Saskatchewan. It was not open to the grievor to come before me and suggest that he is innocent of the actions that led to his admission and conviction of forcible entry and assault.

219        The grievor, in essence, came before me and stated that he lied to the Provincial Court of Saskatchewan when he pled guilty.

220        The grievor also admitted to being a liar on two other occasions. He stated that he lied to the girlfriend about driving past her female friend’s house, to elicit information from the girlfriend about her whereabouts. He lied to the investigators about when his relationship with the girlfriend started. He told them it had started in February 2014, although it had actually started in October 2013. This mistruth was advanced because the grievor and the girlfriend had started their relationship while she and her husband were still together.

221        Overall, the evidence is overwhelming that the grievor has not been honest and forthcoming, and as such, I do not believe his rendition of what happened on May 1, 2014.

222        I accept that at a bare minimum, the grievor both assaulted the girlfriend and committed a forcible entry into her home on the morning of May 1, 2014.

223        I accept the following as fact:

· on the night of April 30, 2014, and the morning of May 1, 2014, the girlfriend, after being out with her female friend, spent time with her male friend;

· the grievor was suspicious of the girlfriend, given that during the course of the night of April 30, 2014, and the morning of May 1, 2014, he had both texted her and phoned her multiple times, to no avail;

· on the night of April 30, 2014, and the morning of May 1, 2014, the grievor staked out the girlfriend’s home, hoping to catch her returning, to confront her;

· on the morning of May 1, 2014, when the girlfriend did return, the grievor broke into her home;

· on the morning of May 1, 2014, during the course of the two to three hours that the two of them were in the home, the grievor acted in a manner as the girlfriend described: he berated her; he confined her to her bedroom, and he assaulted her;

· on the morning of May 1, 2014, he grievor stole belongings from the girlfriend, and although he returned her mobile phone, he removed information and photos from it and carried on a conversation with her male friend on it without her permission;

· on the morning of May 1, 2014, after departing the girlfriend’s home, he followed her to her place of employment, where his abusive behaviour continued; and

· during the course of the day on May 1, 2014, the grievor returned to the girlfriend’s place of employment, where he continued his inappropriate behaviour.

224        The grievor’s behaviour demonstrated to me that he has difficulty controlling his emotions, exercising sound judgement, and making appropriate decisions. His behaviour cannot be said to have been done on the spur of the moment, a one-time occurrence, or due to being under the influence of drugs or alcohol. There was also no evidence that he suffered from any form of mental disability or illness. He spent about four hours waiting for the girlfriend to return. He certainly had an abundance of time to think things through. Prudence dictated that once the girlfriend was home, he should have left well-enough alone. He chose not to. He chose to enter into her home illegally and act in the manner in which he did. He chose to then follow her to work.

225        The grievor was a trained professional who should have been able to act in a calm and responsible manner when dealing with a difficult and emotionally charged situation. That is what he was trained and expected to do both as a CX and as an RCMP auxiliary constable.  

226        At paragraph 46 of Tobin, the Federal Court of Appeal stated as follows:

The power to promulgate the Code of Discipline implies the right to assess employee conduct against the terms of that Code, otherwise it serves no useful purpose. I reviewed the links in the chain of delegated authority from the Treasury Board to the Commissioner of the CSC. If there is a missing link in this chain, it has not been shown to us. The Treasury Board’s authority to establish standards of discipline in the public service was delegated to the Commissioner who exercised it by promulgating the Code of Discipline.

227        Warden Hope stated that he determined that the basis for discipline for the grievor’s conduct was that he breached the Code of Discipline. Specifically, the grievor was in breach of the following clauses:

6(g) failing to conform to, or apply, any relevant legislation, Commissioner’s Directive, Standing Order, or other directive as it relates to his duties;

8(c) acts, while on or off duty, in a manner likely to discredit the Service;

228        Mr. Hope conceded that the grievor’s failure to follow the protocol for signing in did not lead to the decision to terminate his employment. It was the findings in the investigation report relating to the grievor’s conduct on May 1, 2014, with respect to the girlfriend that led Mr. Hope to terminate the grievor’s employment for what was, in his view, acting in a manner while off duty that was likely to discredit the CSC. Mr. Hope accepted the facts as set out in the investigation report as true and based his disciplinary decision upon them. He conceded that he did not know that the grievor had been convicted of any Criminal Code offence when he decided to terminate the grievor, although at that time, the grievor certainly had pled guilty and had been convicted of the criminal charges of assault and forcible entry.

229        Assault is defined in section 265 of the Criminal Code as follows:

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable ground that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

230        Section 266 of the Criminal Code states as follows:

265 Everyone who commits an assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction.

231        Subsection 72(1) of the Criminal Code states as follows:

72 (1) A person commits forcible entry when that person enters real property that is in the actual and peaceable possession of another in a manner that is likely to cause a breach of the peace or a reasonable apprehension of a breach of the peace.

232        Subsection 72(1.1) of the Criminal Code states as follows:

72 (1.1) For the purposes of subsection (1), it is immaterial whether or not a person is entitled to enter the real property or whether or not that person has any intention of taking possession of the real property. 

233        At paragraph 51 of Tobin, the Federal Court of Appeal stated as follows:

In the same way, the Standards of Professional Conduct and the Code of Discipline deal with conduct which will bring discredit to the CSC. Having regard to the CSC’s mission, the assessment of whether a criminal conviction, and the circumstances of that conviction, will bring discredit to the CSC are factors to be considered in assessing the appropriateness of the penalty imposed on Mr. Tobin.

…

234        At paragraphs 60 to 62 of Tobin, the Federal Court of Appeal addressed the question of harm to the employer’s reputation as follows:

The adjudicator does not specify the form such evidence should take. There may be a role for direct evidence of loss of reputation in some circumstances but it was clearly unreasonable for the adjudicator to set a standard which, for all practical purposes, could never be met. The reputation of a national institution cannot be measured or assessed in the same way as the reputation of a person in the community. How did the adjudicator conceive such evidence might be put before him? Would it be by the way of public opinion surveys? Quite apart from the issue of cost and the judicious use of public funds, it seems to be me that the design of such surveys would be fraught with difficulties. For example, how would the employer know to begin the process of collecting evidence of its reputation before the incidents in question? The idea that the state of the CSC’s reputation can be gauged with arithmetical precision and that changes in that reputation can be attributed to one factor or another is simply unreasonable.

The passage which the applications judge cited from Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455 [Fraser] at paragraph 50 of his Reasons is particularly apposite in this regard. The issue in Fraser was whether a public servant’s criticism of government policy resulted in a perception of an impairment of his ability to discharge his duties as a public servant. The concept of impairment, like the concept of discredit, is rather elastic. This is what the Supreme Court said:

Turning to impairment in the wider sense, I am of the opinion that direct evidence is not necessarily required. The traditions and contemporary standards of public service can be matters of direct evidence. But they can also be matters of study, or written and oral argument, of general knowledge on the part of experienced public sector adjudicators, and ultimately of reasonable inference by those adjudicators.

Fraser, supra at paragraph 48

The same is true of the question of whether certain conduct brings the CSC into discredit. The question is one which calls for the application of common sense and measured judgment....

235        While Mr. Hope did not base his decision on the actual criminal conviction, he did base it on the underlying facts that were the basis for the criminal convictions. He stated that they were not in harmony with the CSC’s Mission Statement (Values Statement), parts of which were set out earlier in this decision.

236        I find that the underlying behaviour that led to laying criminal charges against the grievor and his eventual criminal convictions of assault and forcible entry are acts of serious misconduct that a reasonable and informed observer would view as behaviour that would likely discredit the CSC. Actual discredit need not be proved. I have no doubt that the grievor’s professional training and his responsibilities not only with the CSC but also as an RCMP auxiliary constable should have made him among the most perceptive of the unacceptable nature of his conduct towards the girlfriend.

237        I also find that the grievor’s behaviour on May 1, 2014, towards the girlfriend, from the moment he entered her home until the moment he had left her belongings in her vehicle that afternoon, was behaviour that cannot be said to have been in harmony with the values set out in the CSC’s Values Statement, and in particular, he did not exhibit the following:

· respect for the rule of law;

· respectful behaviour;

· allowing persons to choose their own path;

· treating others as we would like to be treated; and

· being willing and able to explain, answer to, and justify the appropriateness of his actions and decisions.

238        The grievor brought forward three co-workers, all of whom were male and all of whom testified that they would have no difficulty working with him. They had no idea of what actions he had been accused of committing; nor did they have any idea of what criminal offences were laid and the underlying facts of the convictions registered against him. In short, their evidence was not helpful.

239        Two of the three co-workers, Mr. See and Mr. Rock, also testified about signing in at the institution. Mr. See testified that he rarely signed in using the old system. He did not elaborate on what the old system was; nor did he state that he did not ever sign in but that he rarely signed in. While Mr. See stated that he rarely signed in, it was not clearly put to him that it was with respect to coming in but not to work. Mr. Rock was asked if in May 2014, the requirement to sign in at the institution was strictly applied. His response was that when he started (which was, according to his testimony, in or about 2006), there was never a requirement but that now there are ID cards with a chip that require scanning them to enter and exit the institution. Mr. Rock did not address what was going on in May of 2014; his evidence was about when he started at the institution.

240        The evidence presented by Messrs. See and Rock does not satisfy me that the procedure for signing in and out of the institution, for those not on duty, was not well known or not followed. Both Messrs. See and Rock indicated that at present, the system requires them to use an ID card that they must scan upon entry and exit.

241        Therefore, I am left with the evidence of the grievor and the documentary evidence presented by the employer as to who signed in on May 1, 2014. I am satisfied that the sign-in procedures for the institution existed at the time the grievor went there to pick up his uniform on May 5, 2014, and that he did not follow those procedures. I am also satisfied that although the grievor suggested that there was some question as to what it was and if it was followed, the sign-in procedure was at least well-enough known to the staff at the CSC that on the day in question, 38 CSC or CORCAN staff members followed it and signed in.

242        While I am satisfied that the grievor breached the procedure for entering and exiting the institution when not on duty, I am also mindful of the evidence of Warden Hope that he did not terminate the grievor’s employment for not signing in. I am of the view that if the only issue that existed for the grievor was his lack of signing in to the institution on May 5, 2014, he likely would have received some form of talking-to, perhaps an oral reprimand or, at worst, a written reprimand.

243        The grievor testified that on May 6, 2014, he attended the office of a medical doctor and obtained a note from that doctor that stated that he would be off work for medical reasons from May 7 to 12, 2014. While I accept that the note shows that it was computer-generated at 10:55 a.m. and that it appears genuine, the finding in the investigation report was that the grievor obtained a doctor’s certification to be absent from work due to illness when he was in fact being arrested on criminal charges. His evidence was that the reason he attended at his doctor’s office and obtained the medical certificate was that he felt he could not perform his duties at 100 percent because of the break up with the girlfriend and the previous harassment he had been subjected to at the hands of his co-workers because of the domestic situation.

244        By the grievor’s own admission, he was not actually suffering from an illness. I am not satisfied that he was in fact ill. I am not satisfied that he was unable to carry out his duties when he obtained the doctor’s certificate. I did not hear any evidence from his doctor; nor does the note specify what ailed the grievor, requiring him to be off work for the May 7 to 12, 2014, time frame.

245        While the grievor testified that he called the institution from his truck on May 6, 2014, immediately after his doctor’s appointment, the employer’s documentation showed his uncertified sick leave logged at 15:18 (3:18 p.m.) that same day. The grievor’s mobile phone records could have easily established when he called the institution as they would have recorded the call on that date. Given that I have found the grievor’s evidence generally unreliable and misleading, I am prepared to accept that the employer’s documentation showing the entry being made at 15:18 as more likely accurate than not and am prepared to accept that the grievor attempted to mislead the employer about his arrest. As such, I find that the grievor was in breach of both paragraph 6(g) of CD 060, Code of Discipline: failing to conform to, or to apply, any relevant legislation, Commissioner’s Directive, Standing Order, or other directive as it relates to his duties; and paragraph 8(c) of CD 060, Code of Discipline: acts while on or off duty in a manner likely to discredit the service.

246        Save and except for admitting that he failed to follow the off-duty sign-in procedure, the grievor has not at any point admitted that he did anything wrong. Indeed, he was steadfast in his innocence, even in the face of his plea of guilty to the criminal charges against him. He displayed no understanding that anything he did with respect to the girlfriend on May 1, 2014, was wrong (whether it was criminal or not). He also displayed no understanding that his behaviour lacked judgement. It is needless to state that he displayed no remorse, given that he did not admit that he did anything wrong or acted inappropriately.

247        Given the grievor’s complete and utter inability to grasp the serious nature of his behaviour, his lack of admission of wrongdoing, and his complete lack of remorse, the cases he cited with respect to a reduction to the penalty are not relevant. The first step in being able to correct misconduct is the ability to recognize that what one has done was wrong. The grievor has not taken that step. Once one recognizes that one has done something wrong, there must be a willingness to correct the behaviour; that cannot happen without a recognition that one has done something wrong. All the circumstances presented before me convince me that the grievor lacks any rehabilitative potential. I am not prepared to alter the penalty of discharge of employment.

248        For all of the above reasons, the Board makes the following order:

V. Order

249        The grievance against the indefinite suspension, Board File No. 566-02-10050, is dismissed.

250        The grievance against the termination of employment, Board File No. 566-02-10916, is dismissed.

April 29, 2016.

John G. Jaworski,
a panel of the
Public Service Labour Relations and Employment Board