FPSLREB Decisions

Heard at Moncton, New Brunswick,
June 23 to 26 and December 1 to 3, 2015.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        The grievor, Steven Matthews, grieved his termination by the employer, the Correctional Service of Canada (CSC), on May 8, 2014, which employed him as a correctional officer II (CX-02) at Springhill Institution (SHI) in Springhill, Nova Scotia. He was terminated for breaches of the employer’s policies related to, among other things, conducting inmate escorts.

2        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 former Board”) 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 Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

3        The grievor’s employment with the CSC as a CX-02 at SHI was terminated on May 8, 2014, following an investigation into his conduct on a non-security escort of an inmate (who will be referred to throughout this decision as “IMS”) to a halfway house in Truro, Nova Scotia. The parties submitted an agreed statement of facts (Exhibit 4), which is reproduced as follows:

1. The grievor was employed as a Correctional Officer, at the CX 02 group and level, during the relevant time period.

2. The grievor has not been the subject of any disciplinary sanctions other than the termination at hand.

3. On April 10, 2014, the grievor and a parole officer (PO Kirby) conducted a non-security ETA of an inmate. More specifically, the grievor and the parole officer escorted an inmate from Springhill Institution, located in Springhill, Nova Scotia, to a half-way house (Lavers House) located in Truro, Nova Scotia. This inmate was a part of the grievor’s caseload.

4. The escorted temporary absence (the “ETA”), approved by the Acting Warden on April 8, 2014, included the following criteria: i) six (6) hour ETA including travel time; ii) non security escort with one (1) correctional officer; and iii) supervision requirement of close supervision whereby the inmate is to remain within sight or sound of the escorting officer at all times.

5. Following the scheduled visit to Lavers House, the grievor, the parole officer, and the inmate attended the Engine Room Pub (the “Pub”), located in Truro, Nova Scotia, for lunch. While at the pub, the inmate attended the washroom unaccompanied. The grievor remained at the table and did not follow the inmate to the washroom. Prior to leaving the pub, the grievor paid for all three (3) meals.

6. On their way back to Springhill Institution, the grievor, the parole officer, and the inmate proceed through a ‘drive thru’ at a McDonald’s restaurant located in Truro. The parties did not exit the vehicle at that time. The parties stopped a second time at the Masstown Market where all three individuals exited the vehicle. The grievor and the parole officer used the washroom at that time. The inmate did not use the washroom; however, he was beside the grievor when the grievor used the washroom.

7. Prior to their return to the institution, the parties (namely, the grievor, the parole officer, and the inmate) discussed in the vehicle on the drive back to the institution and agreed that it would be in their best interest not to mention the visit to the pub and, furthermore, to say that they went to McDonalds, rather than the pub, for lunch.

8. On April 17, 2014, the grievor submitted a Statement/Observation Report (the “OSOR”) in relation to the above referenced matters. The OSOR provided the following account of the ETA: “9:00 - Depart Springhill Institution, drive thru at Tim Horton’s for a coffee stayed in car; 10:20 - Arrive at Laver’s House; 12:15 – Stopped at MacDonald’s on Robie Street ([inmate] used bathroom, checked prior); 13:00 – Depart Truro; 13:15 - Stopped at Masstown Market for a bathroom break; 14:30 – Arrive back at institution.

9. On April 22, 2014, the grievor departed on annual leave for a period of seven (7) days.

10. On May 5, 2014, an investigation was convened, by management, into the above referenced events.

11. On or about May 8, 2014, the grievor was suspended without pay pending the completion of the investigation.

12. On July 14, 2014, a disciplinary hearing was held with the grievor.

13. On August 19, 2014, the grievor’s employment was terminated, pursuant to paragraph 12(1)(c) of the Financial Administration Act, effective May 8, 2014. According to the letter of discipline it was determined that the grievor violated paragraphs 6(g), (j), and 8(a) of CD 060 Code of Discipline and paragraphs 3.1 and 3.4 of the Values and Ethics Code for the Public Sector.

14. The grievor’s grievance was received by management on August 28, 2014.

4        The only issue to be decided as a result of the agreed statement of facts is the appropriateness of the penalty the CSC imposed on the grievor. The employer’s witnesses testified that given the numerous infractions he committed in the course of his duties, his bond of trust with the employer has been irreparably damaged. The nature of his infractions went to the core of what it means to be a correctional officer. The grievor seriously compromised public safety while out in the community escorting IMS and in SHI on his return by allowing IMS to smuggle drugs into SHI. The grievor violated several commissioner’s directives (CDs), his oath of office, and the employer’s code of conduct.

A. Judith Amos

5        Judith Amos was the assistant warden, operations (AWO), at SHI at the time of the incident at issue. Following an incident over Easter weekend in 2014, it became known that a quantity of drugs had been smuggled into SHI. IMS was put into segregation as a result. Since IMS had been on an escort into the community immediately before the Easter weekend, it was suspected that he was responsible for the drugs entering SHI. An investigation was conducted into that suspicion by SHI’s Security and Intelligence department, and when it became apparent that the smuggling had occurred following IMS’s non-security escort by Parole Officer (PO) Kirby and the grievor, Ms. Amos investigated the circumstances surrounding the events.

6        IMS had been approved for a personal-development temporary leave to visit a halfway house in Truro as he was approaching his statutory release date. The warden approved a non-security escort; IMS was to be accompanied by a correctional officer and his parole officer, PO Kirby. As IMS was on the grievor’s caseload as a CX-02, PO Kirby, who planned the temporary absence, asked him whether he would be available on the day in question. A non-security escort differs from a security escort only in the amount of restraints and tools used to ensure the custody and good behaviour of the inmate. Security escorts require at least two correctional officers, while non-security escorts may be conducted by personnel who are not correctional officers or by volunteers.

7        The parameters of the escort were set out in the referral decision sheet (Exhibit 5, tab 7). IMS was to be taken to the halfway house. Lunch in the community was authorized. IMS was to be returned to SHI by 15:00 the same day. It is expected that when lunch is authorized, the inmate is to be taken to a restaurant such as McDonald’s, Subway, A&W, or Swiss Chalet. Normally, inmates are not taken to establishments that serve alcohol, and they are not part of the lunch location decision process. After completing an escort, officers are expected to write an officer’s statement/observation report (OSOR) detailing the day’s events. The purpose of the post-escort OSOR is to detail information about the inmate and any activity witnessed while on the escort. The grievor wrote his OSOR one week later (Exhibit 5, tab 6).

8        Ms. Amos attempted to contact the grievor when she became aware of the security and intelligence officer’s (SIO) concerns that a significant amount of drugs had come into SHI since IMS’s escorted temporary absence (ETA). The grievor was on leave until May 2014 at that point. Upon his return, he found that Ms. Amos had asked him to contact her when he returned. When he did so, Ms. Amos directed him to meet with her and Stephen Boss, his correctional manager, on May 2, 2014.

9        Before meeting with the grievor, Ms. Amos was briefed by the warden. He shared the security and intelligence information about the IMS escort and outlined his concerns with it. The Security and Intelligence Office told Ms. Amos that according to PO Kirby, the grievor and IMS knew each other and knew the same people in the community, who were known to be involved in the local drug trade.

10        The meeting report was entered (Exhibit 5, tab 14). The grievor was very nervous and shaken at the meeting. He admitted that the OSOR he wrote on April 17 was not accurate. He reported that he had not been part of the ETA planning process; PO Kirby had planned it entirely. In advance of the day of the ETA, IMS spoke to the grievor and asked him if it were possible to arrange to meet his son following the visit to the halfway house. The grievor did not reply either way. Following the meeting at the halfway house, IMS suggested that they proceed to the Engine Room Tavern (“the pub”) to eat. The grievor was uncomfortable with it, but IMS was insistent as he had arranged to meet his son there.

11        When they arrived at the pub, IMS’s son was not there. The three sat in the car for a few minutes before deciding to enter the pub; they waited to see if the son would appear. Once inside, they sat in the family section. The grievor reported that he was uncomfortable and was afraid a police officer or another parole officer might see them. IMS ordered his meal then got up and went to the bathroom while the grievor and PO Kirby ordered their meals. This startled the grievor, but he did not accompany IMS to the bathroom; nor did he search it before IMS went in. IMS was gone only for a couple of minutes. He returned, and the three ate their meals. The grievor was very uncomfortable with the situation, so he got up and paid for all three meals rather than prolong the visit with individual bills and payments.

12        Once on the road again, the party stopped at a McDonald’s for coffee and again at the Masstown Market in Masstown, Nova Scotia, so that PO Kirby could use the washroom. The grievor went into the men’s room and used the facilities. IMS was with him the entire time; he did not use the facilities. The group returned to SHI and arrived by the time required by the gate pass. IMS was taken to Building 3 at SHI, where the grievor spoke to Correctional Manager Ralph Polchies, who was the correctional manager on the duty desk that day. He asked Mr. Polchies whether correctional officers were available to strip-search IMS. Mr. Polchies asked whether IMS had been out of the grievor’s sight or sound during the course of the escort. The grievor reported that IMS had not been out of his sight or sound, so Mr. Polchies directed him to be returned to his living unit without a strip-search.

13        The grievor described the conversation in the vehicle travelling from Truro. He indicated that the discussions were about what the three would say about where they had had lunch. All agreed that it was best to say McDonald’s and to make no mention of the pub, which concerned Ms. Amos because colluding with a felon to lie to the employer means that the felon has a hook that can be capitalized on later.

14        This was the grievor’s first time as the officer in charge of a non-security escort. He had had security escort experience but had never been the officer in charge of the escort. He had been trained in the conduct of ETAs when he completed the core training program (CTP). He understood that the escort briefing (Exhibit 5, tab 13) outlined the escort’s parameters and that he was required to sign it as having read it. If he was unsure, he was to speak to the correctional manager on the duty desk. Ms. Amos did not recall the grievor saying he saw or signed the escort briefing.

15        The procedures for conducting a non-security escort are the same as for a security escort; only the tools differ. The grievor’s duty was to ensure that the conditions in the escort briefing were followed. It was also his duty to search the transport vehicle before leaving SHI. He was responsible for ensuring that he had all the paperwork and that it had been signed, that he searched the washroom before allowing IMS to enter, and that IMS was kept within his sight or sound the entire time, as set out in the escort briefing document.

16        The grievor stated that he had not searched the vehicle as required and had not searched the washroom as required and that he failed to ensure that all the required security requirements were met. Meeting IMS’s son, going to the pub, and allowing IMS to go the washroom by himself were not authorized. Had the grievor admitted as much upon his return to SHI, the employer could have taken steps to minimize the impact of his failure on SHI. A correctional officer is expected to admit when he or she makes a mistake and not compound it with deceit and lies. The grievor’s continued failure to admit wrongdoing endangered a lot of people.

17        Following the meeting with Ms. Amos, the grievor was directed to write an accurate OSOR (Exhibit 5, tab 11). He asked if he was going to be fired. Based on the information that Ms. Amos had at that point, she advised him that a significant suspension was likely but that it was not her decision. The grievor was then suspended without pay pending the completion of a disciplinary investigation. In June 2014, Ms. Amos spoke to the grievor’s bargaining agent local representatives and indicated that a suspension was likely but that consultations were required with the employer’s labour relations department before a decision was made.

B. Ralph Polchies

18        Vehicle searches are required by CD 566-5 (Exhibit 5, tab 28), in particular bullet 7. It is the responsibility of the person conducting the escort to search the vehicle, although it does not specifically state that vehicles and washrooms are to be searched. Vehicles are thoroughly searched in the sally port at an institution’s principal entrance each time they enter or leave. The correctional officer at the principal entrance conducts a cursory search of a vehicle’s interior in the sally port. The sally port search prevents introducing contraband into the institution. The escort officer’s search is done to prevent the inmate from accessing weapons or drugs. They are two separate searches.

19        Mr. Polchies was the duty correctional manager at SHI when IMS returned from his escorted visit to the halfway house in Truro. He was not the duty correctional manager who provided the grievor with the pre-escort briefing. That was done by the duty correctional manager he replaced mid-afternoon that day. Mr. Polchies has taught the subject of ETAs in the CTP and to volunteers. He has also taught all aspects of conducting a search, including strip-searches. He testified that the ETA policy (SHI standing order 566; Exhibit 5, tab 29) requires that all inmates entering or returning to SHI be strip-searched. The standing order is available on the employer’s intranet.

20        Mr. Polchies described how non-security escorts are to be conducted. On the day of the escort, one escort officer picks up the paperwork from the duty correctional manager while the other brings in the vehicle. The vehicle is to be searched by the escort officer and the principal entrance officer. The principal entrance officer searches the vehicle again as it leaves the institution. The officer in charge of the escort is required to search both the vehicle and the inmate. The vehicle search includes searching under the vehicle, in the engine compartment, and inside the vehicle, or in other words, anywhere contraband could be hidden. Washrooms are to be searched before an inmate is allowed to use them regardless of whether the escort is non-security or security. The process is the same. The officer in charge of the escort is responsible for strip-searching the inmate on his return to the institution.

21        Mr. Polchies remembers the grievor returning from the ETA on the day in question. He was covering for another duty correctional manager, who had been called away. He spoke to the grievor but did not see IMS. The grievor told him that IMS had already been returned to his living unit. He asked the grievor if IMS had been within his sight and sound the entire time, and the grievor told him that he had been under direct supervision at all times during the escort and that he had never been out of the grievor’s sight. The conversation was brief. Mr. Polchies relayed that information to the investigator who conducted the disciplinary investigation that arose from the grievor’s conduct that day. He did not sign his statement to the investigator or review it for accuracy.

22        Mr. Polchies was asked to review CD 566-5 and conceded that it does not mention conducting a vehicle search or that the inmate must be strip-searched. He denied that the grievor asked him to have two other correctional officers strip-search IMS. He was aware that paragraph 5 of CD 566-5 states that it was his responsibility as the duty correctional manager to ensure that IMS had been strip-searched before he was returned to his cell. He was not aware at the time he was speaking to the grievor that IMS was in the room waiting to be strip-searched.

C. Ardena Austin

23        Ardena Austin has been an SIO at SHI for approximately five years. She spoke to the grievor about IMS by phone the week before the ETA. She realized he did not have much experience conducting escorts and thought he should know a few things about IMS before taking him into the community. She told the grievor that he was taking an inmate into an area with which he was familiar and that IMS was a habitual drug user involved in the institutional drug trade. They specifically discussed the halfway house and bathroom breaks and not to let IMS choose the lunch location. She also told the grievor that upon his return to SHI, he should report to the duty correctional manager, who would ensure that IMS would be strip-searched. It is the duty correctional manager’s job to assign two male officers to strip-search a returning inmate. It is not usual for an SIO to contact the correctional officer before an escort, but in the circumstances, she felt it was appropriate.

24        After the conversation, Ms. Austin went on holidays. Upon her return, she was advised of the investigation into the escort and was asked to file an OSOR (Exhibit 5, tab 20).

D. Megan McLeod

25        Megan McLeod is also an SIO at SHI. She spoke to the grievor about the escort after IMS was put in segregation. The grievor appeared upset during their conversation. He was aware that drugs had entered SHI as when he returned to work following his day off he was told why IMS was in segregation. The purpose of her conversation was to tell him what information had been received and to ask him if the drugs could have entered from his escort. She asked him to describe the escort in detail, including whether the washroom, vehicle, and inmate were searched.

26        The grievor reported to her that on that day, they left SHI and went to a Tim Horton’s drive-through in Springhill. From there, they proceeded to the halfway house in Truro. IMS was within the grievor’s sight throughout the meeting. Following the meeting, the escort party proceeded to have lunch at McDonald’s in Truro, where IMS used the washroom. The grievor did not search the washroom stall but did check the garbage can and stood outside the stall while IMS was in it. After lunch, they returned to SHI after stopping at the Masstown Market to use the washroom. IMS was not strip-searched before he was returned to the unit. The grievor did not search the interior of the vehicle but had mirrored underneath it.

27        The grievor reported that IMS had approached him on April 11 and told him that a package of hashish had come into SHI through the Regional Reception Centre. Ms. McLeod asked the grievor if he had filed an OSOR about it as it was expected that an officer who heard about drugs entering SHI would submit an OSOR by the end of the workday.

E. Lynn Chaplin

28        Lynn Chaplin was asked to conduct a disciplinary investigation into the conduct of IMS’s escort to the Truro halfway house. She interviewed the grievor in the presence of his bargaining agent representative. Following the interview, he was given the chance to review her notes (Exhibit 5, tabs 9 and 21). He told her that he thought he was just the driver on the escort, although when questioned further, he confirmed that he was the escorting officer, who has the role of officer in charge of the escort. He was to manage where the escort went and ensure that the arrival times at prescribed destinations were met. He was aware that the offender was to be within his sight and sound at all times.

29        The grievor was part of IMS’s case management team at SHI and went to the halfway house to hear IMS’s interview. According to Ms. Chaplin, the grievor should have known more about IMS that any other correctional officer because IMS was on the grievor’s caseload and the grievor had attended the interview at the halfway house in Truro. The grievor indicated to her that it was his first non-security escort but did not comment on his participation in planning the escort other than that he was involved in selecting the date.

30        The grievor reported to Ms. Chaplin that IMS asked him if he was going to be part of the escort to the halfway house. IMS asked where they would have lunch, to which the grievor responded that IMS should speak to PO Kirby. In Ms. Chaplin’s opinion, the grievor did not handle it appropriately as he left the door open for IMS to keep pushing him on the matter. IMS continued to pursue his preferred lunch location while in the vehicle and was adamant that they go to the pub for lunch so that he could meet with his son. PO Kirby concurred.

31        The lunch location was a common theme that IMS pursued. The grievor knew the escort processes, knew he was the escort officer, and knew where he was authorized to go and why. An ETA plan is specific as to what is allowed, and in this case, there was no mention of family contact. It was completely inappropriate to allow IMS to see his son.

32        On the drive from Springhill to Truro, the grievor mentioned to IMS and PO Kirby that his father was a police officer in Springhill; he also mentioned other personal information. The three discussed world affairs and sports. At one point, IMS asked the grievor if he was related to a certain family in the Springhill area.

33        Ms. Chaplin spoke to both PO Kirby and the grievor about the length of time IMS was in the pub’s washroom. The grievor stated it was a couple of minutes, while PO Kirby said that IMS was gone for up to 10 minutes. According to Ms. Chaplin, PO Kirby asked the grievor to go and see what was going on, which the grievor did not do. The grievor and PO Kirby both knew that IMS had a significant history of secreting contraband in his anus and that he was very adept at it. According to Ms. Chaplin, even two minutes would have been sufficient for IMS to insert the contraband.

34        Apparently, when IMS returned to the table, he was calm and relaxed. According to the grievor, IMS ate his meal, while according to the version of events provided by PO Kirby, he did not. According to Ms. Chaplin, IMS probably did not eat once he sat down as he would not want to add food to his system in case it damaged the package he had inserted. According to PO Kirby, IMS told her a few days before the escort that he would go to the washroom at the pub and that the grievor would not follow him.

35        The grievor paid for all three meals, which was significant according to Ms. Chaplin as he could file a claim only for his own expenses. He would have been given cash to pay for IMS’s meal with the escort package. After leaving the pub, they went to McDonald’s for coffee. Once on the road to return to SHI, PO Kirby asked to stop so that she could use the washroom. All three went into the Masstown Market. The grievor had IMS with him the entire time. The grievor used the facilities, but IMS did not. Once on the road again, the grievor suggested to the others that they not mention going to the pub. It was in their best interests to say that they had gone to McDonald’s for lunch.

36        When asked if he knew what the policy was on strip-searching an inmate on return from an ETA, the grievor stated that he did not know but that he thought it should be done by someone other than the escort officer. Another officer would be unbiased. That is not the policy. Instead, the escort officer in charge is to ensure that the inmate is strip-searched before being returned to his cell.

37        With respect to the day in question, the grievor claimed he had a conversation with Mr. Polchies, who was the duty correctional manager when the grievor and his party arrived at SHI. Apparently, something was going on in SHI, and Mr. Polchies asked the grievor if IMS had been within his sight and sound at all times, to which the grievor answered in the affirmative. Mr. Polchies then directed the grievor to return IMS to his cell. The grievor acknowledged that IMS asked him about being strip-searched upon his return.

38        At the end of the interview, Ms. Chaplin felt that the grievor realized he had made errors and that he regretted them. He acknowledged his error and expressed remorse. He also explained that he thought he could read people, was a good judge of character, and had been wrong. He had relaxed his guard, and IMS had taken advantage of the situation. The grievor acknowledged speaking to Ms. Austin before the escort but only in passing as she had called the unit that day to speak to someone else, which differed completely from Ms. Austin’s version of the call. Ms. Chaplin found Ms. Austin more credible because of her OSOR.

39        The grievor admitted that he went on vacation knowing that he had lied in writing and verbally in his ETA reports. When he returned, he discovered that the AWO had his correctional manager call him in to address the inconsistencies in the OSOR he submitted before he left on vacation. Normally, a post-escort OSOR contains more information about where the party went and to whom they spoke, whether or not the objectives were met, any issues encountered, and any intelligence gained. The grievor’s OSOR (Exhibit 5, tab 15) left out a great deal of information, which was not acceptable.

40        Had the grievor maintained IMS in his sight and sound, and if he had asked to have IMS strip-searched, all problems could have been avoided. Ms. Chaplin felt that the grievor’s statements lacked depth and truthfulness. He admitted that he did not search the vehicle as required. He received the briefing documents, which Ms. Chaplin did not believe he read. There is no way that after sitting through the meeting at the halfway house where IMS’s criminal history was discussed at length, the grievor did not know whom he had with him and the need for precautions and special attention despite his contention that he did not know why he was going on the escort.

41        Ms. Chaplin concluded that the grievor demonstrated a lack of or complete absence of judgement by discussing lunch locations with IMS, discussing the possibility of IMS seeing his son, discussing his personal life with IMS and PO Kirby while driving to Truro, not escorting IMS to the washroom, demonstrating a lack of security precautions, colluding with an inmate, making false reports, lying to the duty correctional manager, not reporting drugs entering through reception, and having to correct his original OSOR because of the lies it contained. The grievor demonstrated complacency and a lack of basic security practices.

42        Even after the Security and Intelligence department sent an email concerning drugs in SHI after the escort, the grievor asked PO Kirby and IMS to stick to the McDonald’s story, according to Ms. Chaplin’s interview of PO Kirby. When he lied to hide his breach of policy, the grievor committed one of the most serious trust issues. Not only did he agree to lie with PO Kirby and IMS, but also he then took steps to perpetrate it. The grievor acted without integrity and was untruthful throughout the whole event.

F. Marc Bourque

43        Marc Bourque is a CX-03 staff trainer who has taught the employer’s CTP. The content is the same across the employer’s five regions, although variances are in place to fit institutions in each region. Search training is a one-day session and covers cell, person, and vehicle searches. All candidates must pass the searching component of the course to successfully complete it. There is no special training on searching an escort vehicle. If the escort vehicle is searched at the principal entrance, the escort officer does not need to conduct a second search. When the escort officer picks up the vehicle, it should be searched, but it is not normally done that way. Based on Mr. Bourque’s experience, the vehicle is searched only in the sally port by the officer assigned to the principal entrance.

G. Jeffrey Earle

44        Jeffrey Earle is the SHI’s warden. He approved IMS’s temporary absence and determined the escort’s terms. He decided on a non-security escort, contrary to the SIOs’ recommendation, as in his opinion it made no sense to use a security escort when exploring a conditional release to a halfway house. The risk could be managed through a non-security escort with a parole officer and a correctional officer. PO Kirby had previously been a security officer and was familiar with IMS, who was on the grievor’s CX-02 caseload.

45        The CX-02 assigned to a non-security escort is expected to know the escort’s conditions. He is to read and sign the briefing sheet. Since it was the grievor’s first non-security escort, he could have asked his correctional manager for clarification. It is critical that the escorting officers stick to the ETA’s conditions and deviate from them only if the risk level of the absence changes. IMS’s family members were known in the community for their criminal activity and drug dealing. Any contact with them should have been assessed and approved in advance. If IMS’s request to meet his son had been made through official channels, the risk could have been assessed and evaluated.

46        Mr. Earle heard that issues had arisen with the escort only four days later when information made its way to him that drugs had been consumed in the recycling plant where IMS worked and in the unit where he was housed. The Security and Intelligence Office reported to him that it had received information that IMS had brought drugs into SHI on his return from his ETA. Mr. Earle asked it to determine when the drugs entered SHI. The escort officers were interviewed to determine when and how the drugs came in through the ETA. He then launched the disciplinary investigation conducted by Ms. Chaplin.

47        As a matter of background for the investigation, Mr. Earle told Ms. Chaplin that the grievor was rumoured to have had a checkered past and to have been involved with drugs. He also advised her that the grievor and IMS knew the same people in the rumour he had heard and that IMS was bragging to other inmates that he had been out for steak and beer while on the ETA. Mr. Earle did not believe the rumour but shared it anyway. Similarly, he had no reason to believe the rumours but asked Ms. Chaplin to look into it as well, which she did.

48        He received her report shortly after May 28, 2014. He was extremely concerned by her conclusion that an officer had colluded with an inmate, lied, and been negligent and derelict in his duties, leading to drugs entering SHI.

49        He convened a disciplinary hearing, at which he considered both aggravating and mitigating factors. The grievor was allowed to comment on the report. He clarified certain issues and made further arguments. AWO Ian Carr also attended and asked questions. The grievor admitted to a number of things and accepted responsibility but only superficially. What he said at the disciplinary hearing caused Mr. Earle further concern. Mr. Earle saw a continuing pattern of the grievor admitting to things only after they had been proven from other sources. The grievor was focused on the choice of restaurant, while Mr. Earle was primarily concerned with the grievor’s collusion, lies, and lack of forthrightness.

50        By lying to the employer, the grievor turned something that had not been that serious into an incident that undermined SHI’s security. His lies and lack of security procedures threatened SHI’s security. He claimed that he was not properly trained in searching vehicles. He also claimed that he searched under the vehicle and in the engine compartment but not the interior. The two primary functions of a security officer are surveillance and searching. The grievor had received training and mentoring from other correctional officers. He received 10 days of training per year pursuant to the national training standards.

51        The grievor felt he could read people really well, and he saw no indication that IMS was carrying drugs. Dynamic interaction is part of the security process, but using that and ignoring other security procedures’ elements was negligent. In Mr. Earle’s opinion, in was doubtful that the grievor was not trained in how to search a vehicle, and whether or not he was experienced with non-security escorts, he had been on security escorts before. Furthermore, had the grievor accessed IMS’s file in the Offender Management System (OMS), he would have been aware of the SIO’s concerns about IMS’s propensity to secret contraband in body cavities. Mr. Earle did nothing to assess the grievor’s knowledge of IMS or his case. He did express concern with the finding that the grievor had called the duty correctional manager and had asked him to note in the movement log that the ETA was not to be cancelled.

52        The grievor lied to the duty correctional manager, resulting in a failure to strip-search IMS upon his return to SHI. Ensuring that an inmate is strip-searched is the duty correctional manager’s responsibility, according to the CD; however, an SHI standing order states that it is the escorting officer’s responsibility. When a standing order and a CD conflict, the CD supersedes the standing order.

53        The grievor reported that IMS had talked to him about meeting his son and going to the pub but rather than respond, he referred IMS to PO Kirby. According to the grievor, he did not know that such arrangements had been made until they left the halfway house. His statements concerned Mr. Earle, who felt that the grievor was being less than truthful even though it was not abnormal for a CX-02 to refer an inmate’s question to his parole officer. However, it was Mr. Earle’s expectation that inappropriate requests would be addressed and if necessary that an OSOR would be completed.

54        Clearly, IMS made some arrangements to meet his son. The collusion beforehand between the grievor and IMS was of serious concern as Mr. Earle did not know whom to believe. And PO Kirby and the grievor made conflicting reports as to how long IMS was in the washroom unescorted.

55        Mr. Earle was aware that PO Kirby had changed the coding on the ETA application from sight and sound required as recommended to sight or sound so that she could go on the escort. He was also aware that it is not routine for an SIO to contact an escort officer to discuss concerns with an ETA.

56        Mr. Earle asked the grievor how he would rebuild the employer’s trust, to which he responded that he would have to earn it back a little at a time. He also stated that he would not be in charge of any more escorts, which are part of a CX-02’s functions. Mr. Earle was concerned that the grievor was compromised as a correctional officer. The grievor admitted to the allegations and went to elaborate lengths to minimize his responsibility. He claimed he was not part of planning the escort and did not know what arrangements had been made ahead of time. He also claimed he was not trained for non-security escorts and that it had been his first, yet in his OSOR, he demonstrated knowledge of what should have happened.

57        While Mr. Earle’s first instincts were that termination was not appropriate, and he had so advised some bargaining agent representatives, he testified that he has come to believe that termination was proportionate to the transgression and necessary due to the irreparable breach of trust. The grievor lied about what happened, colluded with an inmate, and did not disclose any of this to the employer. A disciplinary record would undermine the grievor’s ability to testify in court. He was compromised with respect to staff and inmates. Mr. Earle continued to have doubts about the grievor’s honesty and credibility. He was concerned that if the grievor returned, similar behaviour would reoccur. The grievor committed major breaches of the employer’s code of conduct. SHI needs staff who are role models for offenders and who carry out their duties with integrity.

58        The grievor’s initial dishonesty undermined security and intelligence investigations and ultimately delayed confiscating drugs. He tried to mislead the SIO by telling her that the drugs had come in from the Regional Reception Centre, in an apparent attempt to deflect attention from the ETA.

59        Mr. Earle had discussions with bargaining agent representatives about the amount of discipline he intended to impose before he left on vacation in August 2014. During the month following the disciplinary hearing, Mr. Earle consulted with the employer’s labour relations department at its headquarters on the amount as the director general of labour relations signs off on it, even though according to the employer’s “Instrument of Delegation of Authorities in the Area of Human Resource Management” (Exhibit 10), it is the warden’s responsibility to determine the amount and impose discipline. If the warden intends to terminate an employee, Labour Relations’ approval is required. Mr. Earle had several discussions with his senior staff and Labour Relations before he left on vacation that year.

60        Before he left, at a local labour-management meeting, Mr. Earle told the local bargaining group president that his initial impressions were that the grievor was redeemable, that he was not considering termination, and that this could be communicated to the grievor. Following the meeting with the local president, David Harrison, Mr. Earle received no new information other than Labour Relations’ recommendation on the amount of discipline.

61        Before imposing the termination, Mr. Earle discussed a 30-day suspension without pay with the Director General, Labour Relations, and his appointed labour relations representative. He also discussed his intentions with the Regional Deputy Commissioner, Operations (his superior), and his management team, which was initially a 30-day suspension. Upon his return from vacation, Mr. Earle received a draft termination letter from Labour Relations for his signature. While he did not draft the letter, and despite his initial representations to the bargaining agent, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN), he agreed to sign it.

62        When asked whether it had been his decision or had been imposed upon him, Mr. Earle stated that he would not have signed it had he had an ethical issue. Ultimately, as SHI’s delegated authority to impose discipline, it was his decision. When asked directly who made the decision to terminate the grievor’s employment, Labour Relations or him, his only response was that as the delegated authority, it ultimately was his decision. Mr. Earle was fully aware that a Labour Relations representative had contacted the bargaining agent’s national president and had advised him that the grievor would not be terminated but rather would receive a 30-day suspension without pay. It was his intention until his return from vacation to impose a suspension, but after further reflection, he agreed with Labour Relations’ recommendation to terminate the grievor.

H. Douglas White

63        Douglas White was the bargaining agent’s regional president in 2014. He was directly involved in the grievor’s case in July 2014. He asked the local president, Mr. Harrison, to ask Mr. Earle to sit down and discuss the case. A meeting was set for early July with Mr. Earle, Mr. Breen (deputy warden), Mr. Carr (acting AWO), Mr. Harrison, Mr. Logan (bargaining agent local vice-president), and Mr. White. Mr. Harrison had not seen the disciplinary investigation report before the meeting but was aware of the facts.

64        At the meeting, Mr. Earle did most of the talking and discussed the grievor in general. He told those assembled that in his opinion, the grievor was worth going the extra step for and was redeemable. The meeting went well, and the bargaining agent representatives left feeling positive. The next day, Mr. White received a phone call from Mr. Earle about the meeting. Mr. Earle stated that he had appreciated the group’s honesty and that he would take into account the bargaining agent’s opinion of the investigation.

65        On July 29, 2014, Mr. White received a phone call from Kevin Grabowsky, the bargaining agent’s national president. Mr. Grabowsky had been contacted by the employer’s national labour relations office at its headquarters. They had informed him that Mr. Earle had decided on a 30-day suspension without pay.

66        On August 11, 2014, Mr. White was at SHI. He asked Mr. Harrison if the local was happy with the 30-day suspension. Mr. Harrison knew nothing about it; no discipline had been imposed at that point. Usually, once the bargaining agent receives notification from Labour Relations at Headquarters, the penalty is meted out within days.

67        Mr. White and Mr. Harrison met with Mr. Carr and Mr. Breen, who was the acting warden that day. They asked why the penalty had not been imposed and were surprised to find out that Mr. Earle had gone on vacation without concluding the matter. According to Mr. Breen, further discussions were taking place. Usually, by the time Headquarters notifies the bargaining agent, the discussions are done.

68        Mr. White then contacted Mr. Grabowsky to advise him of the situation. On August 13 or 14, Mr. White received a call from Mr. Grabowsky, who advised him that the employer had decided to terminate the grievor. At a national bilateral labour relations meeting, the CSC’s commissioner was asked how the employer went from a 30-day suspension without pay on July 29 to termination on August 14. The bargaining agent received no answer.

69        During the first week of September 2014, the bargaining agent held an information session to advise the SHI bargaining unit members of the employer’s actions. All who attended were upset and felt that at the local, regional, and national levels, the bargaining agent had been lied to by all levels of senior management.

I. David Harrison

70        Mr. Harrison was kept apprised of all things disciplinary at SHI. He has worked SHI’s principal entrance. When a vehicle enters the sally port at SHI, its passengers go through the principal entrance, and the principal entrance officer or the vehicle control officer goes into the sally port and searches the vehicle. This process is followed for all vehicles, including those to be used for an ETA. The same process is followed on the way out. The vehicle control officer searches the vehicles and records on two forms who brought in the vehicle, the vehicle’s identification, and the passengers.

71        At the beginning of July 2014, in the warden’s office, Mr. Harrison asked Mr. Earle if a decision had been made about the grievor. At that point, none had been made, as the disciplinary hearing had not been held. Again in mid-July, Mr. Harrison talked to Mr. Earle and was told that the disciplinary hearing had been held and that the grievor had presented himself well and had been open, honest and humbled by the situation. Mr. Harrison asked Mr. Earle if he had an idea about the penalty. Mr. Earle in return asked Mr. Harrison his opinion of the grievor and the case.Mr. Harrison answered that the grievor was redeemable, in his opinion. Mr. Earle stated that he agreed.

72        At a meeting with management later in July, Mr. Harrison again asked about the status of the decision concerning the grievor. Mr. Earle summarized the disciplinary hearing and stated that he was not looking to fire the grievor, although at that point he had not yet determined the penalty. Mr. Harrison asked Mr. Earle if he could tell the grievor that the employer was not looking to terminate his employment as the grievor was having financial problems since he had been off work without pay during the investigation. Mr. Earle told him that he could tell the grievor that he did not intend to terminate his employment. All assembled recognized that the grievor had made many mistakes that day but that it was “not the end of the world.”

73        Mr. Harrison recognized that the grievor had “failed guard 101” and had compounded his failures on the ETA by falsifying an OSOR. However, Mr. Earle also lied when he stated that the grievor would not be terminated and demonstrated bad faith and poor labour relations in how he dealt with the matter after making that promise to the bargaining agent.

J. Craig Farrish

74        Craig Farrish is a dog handler and search specialist at SHI. He testified that any admission to SHI, even from an ETA, is made through the Admissions and Discharge Unit. The officers there are normally required to strip-search inmates during normal business hours. It is the duty correctional manager’s responsibility to ensure that inmates are searched by either the correctional officers in Admissions and Discharge or other correctional officers. The standing order (Exhibit 5, tab 29) that requires the escorting officers to conduct the strip-search upon their return assumes that two correctional officers are on the escort. In those cases without two correctional officers, it is not possible, as a strip-search requires two of them. If only one correctional officer is on the escort, then that officer must contact the duty correctional manager or the keeper, who must assign resources to conduct the search.

K. Stephen Boss

75        Mr. Boss was the grievor’s acting correctional manager at the time of the incident. The grievor had performed well as a CX-02. He did his casework as required, and there were no problems with him. Mr. Boss attended the meeting with the grievor and Ms. Amos in May 2014. The grievor was visibly upset and told Ms. Amos that he knew what the meeting was about. He wanted to give another version of what had happened on IMS’s ETA. The meeting took less than half an hour. The grievor was apologetic, upset, and remorseful and appeared sincere.

76        PO Kirby contacted Mr. Boss on or about April 10. She wanted to know whether IMS’s scheduled ETA would possibly be cancelled. Since he did not know, Mr. Boss called the deputy warden to confirm if the ETA would proceed as scheduled. Mr. Boss then called the duty correctional manager to ask that an entry be made in the movement log that the escort not be cancelled. The grievor was not responsible for the entry.

77        Mr. Boss was not aware how long IMS had been on the grievor’s caseload, but it was the grievor’s responsibility to know his offender, which is done through the OMS.

78        Mr. Boss confirmed that it is the duty correctional manager’s responsibility to ensure that an inmate returning from an absence is strip-searched. It is the correctional officer’s responsibility to search the vehicle before taking an inmate out on an escort.

L. Kevin Grabowsky

79        Mr. Grabowsky testified that for some time, an agreement had been in place between the bargaining agent and the employer about imposing suspensions without pay, terminations, or any other form of serious discipline. Every time the employer intends to impose such discipline, the employer’s national labour relations office at its headquarters advises the national president before imposing the discipline. At no time other than in this case has discipline that was first shared by the Labour Relations Office been different when imposed. The national president is informed at the final stage of the discipline process after the director general of labour relations is consulted and approves the warden’s proposed penalty.

80        Consistent with this agreement, on July 29, 2014, at 14:30, Mr. Grabowsky received a voicemail from Ms. Paquette confirming that the grievor was to receive a 30-day suspension without pay. As he had received the confirmation of the penalty from the employer, Mr. Grabowsky called Mr. White and informed him that the grievor would be receiving a 30-day suspension without pay.

81        Usually within two to three days of Labour Relations’ call to the bargaining agent, the affected employee is advised of the penalty. In this case, it did not happen. On August 11, 2014, Mr. Grabowsky received a call from Mr. White, who had been informed by the acting warden and AWO at SHI that the decision was still pending. Mr. Grabowsky then contacted Rene Houle, the employer’s director general of labour relations, who confirmed that no decision had been made. He had no response to Mr. Grabowsky’s inquiry as to why Ms. Paquette had told him one had been made, and she was not available. None of this made any sense to Mr. Grabowsky, who told Mr. Houle that he would raise it at his upcoming meeting with the Commissioner.

82        Mr. Grabowsky raised the penalty change with the Commissioner and Assistant Commissioner, Human Resources, Ms. Howard, at the bilateral meeting as he told Mr. Houle he would. Mr. Grabowsky described the meeting as the worst he had ever experienced and that since then, labour relations between the bargaining agent and the employer have been very strained. The employer can no longer be trusted to live up to the commitments it has made to the bargaining agent. The Commissioner became very upset with the discussion. He asked if the bargaining agent was accusing him of interfering with the warden’s decision. The Commissioner clearly stated that it was the warden’s authority and not Labour Relations’ to determine the penalty.

M. Kristal Wood

83        Kristal Wood explained a CX-02’s role and the use of the OMS. Ms. Wood has been a CX-02 for 10 years at SHI and at the time of the hearing was a parole officer. CX-02s receive no formal training other than the CTP, which they complete before becoming CX-01s, and that training does not specifically address the job of a CX-02; it merely touches briefly on casework reporting, assessments for decisions, and casework records.

84        The OMS does not contain an inmate’s entire file. It is updated every 45 days, which is what a CX-02 would normally see. It contains a summary of the inmate’s case plan and progress. CX-01s do not have access to the OMS. The CX-02s at SHI do not receive OMS training when they are promoted from CX-01. Ms. Wood learned how to navigate through the OMS once she became a parole officer. Some CX-02s use a snapshot of OMS called “RADAR”, which contains no reports. She never reviewed an entire inmate file in the OMS as a CX-02. While a CX-02, she worked for approximately one year with the grievor and helped him with the OMS several times. An OMS coordinator is available to assist a correctional officer, but that person is located off-site and is available only within normal business hours. For assistance, a correctional officer must obtain relief to leave his or her post.

85        Ms. Wood has been on at least 24 non-security escorts of inmates from SHI. She received escort training during the CTP and was primarily focused on security escorts. She received no correctional manager briefings in preparation for non-security ETAs from SHI. According to Ms. Wood, immediately before leaving SHI, the escort officer goes to the duty correctional manager’s office and picks up an envelope, which contains the inmate’s tombstone data, a picture, the ETA sheet with leave and return times, the destination, possibly some money to pay for the inmate’s lunch, and the gate pass. The duty correctional manager is supposed to provide a briefing, but at SHI, this is not done. A parole officer would advise her of the date of a planned escort and would ask if she were available to accompany the parole officer and the inmate on that date. She has followed the same process as a parole officer. The parole officer does the risk assessment before the escort, and the CX-02 writes the OSOR on return. The OSOR is a short summary of whether the escort was done within the allotted time and whether it went well. They often consist of no more than two or three sentences.

N. The grievor

86        The grievor started his career at Drumheller Institution in Alberta as a CX-01. He spent two years working there and obtained the CX-02 rank before moving to SHI. He received no formal CX-02 training, although he had had what he described as an acting CX-02 assignment before he moved but no non-security escorts. While at Drumheller Institution, he had been on five or six security escorts. When he arrived at SHI, he received 40 hours of orientation before being put on a unit. At Drumheller Institution, new recruits joined weekly, so management was very hands-on and took the time to explain the institution’s workings, while at SHI, staff was more experienced, and management did not take the same hands-on approach.

87        The grievor received no training on casework records or on how to access them through the OMS either at Drumheller Institution or at SHI. He did not receive access to the OMS at SHI until three weeks after he joined. The entirety of an inmate file is accessible only on a need-to-know basis at Drumheller Institution. When he had a need to access an inmate’s file, the grievor saw only a report of the last 45 days. As a CX-02, the grievor attended only one case-management-team meeting.

88        IMS was assigned to the grievor’s caseload in mid- to late January 2014. He was not involved in planning IMS’s ETA to the Truro halfway house; PO Kirby did it. She asked him on March 19, 2014, when he was available because she was looking into scheduling the meeting. Before going on IMS’s non-security escort, the grievor conducted a couple of casework reviews. Nothing in the file caused him any concern; there were no flags, and IMS was not a dangerous offender. After the ETA was approved, the grievor did not access IMS’s file unless for a casework review. He did not attend any case management meetings about IMS either before or after the escort was approved.

89        In the days preceding the escort, the grievor had a couple of interactions with IMS. In the first, IMS told the grievor that his visit to the Truro halfway house had been approved. He asked the grievor if he would be the escort officer and whether it would be possible to see his son. The grievor advised IMS to speak to PO Kirby because he had not been involved in planning the escort. Then IMS told the grievor that he had read the assessment for decision prepared in the application for the ETA and told the grievor that the SIO had called him everything but a junkie, yet the escort was still approved. The grievor advised IMS that he had not seen the assessment for decision and that he could not comment. The grievor did not discuss with IMS where to have lunch.

90        Before that escort, the grievor had been on two others at SHI, one security and one non-security. IMS’s escort was only the second time that the grievor was to be the officer in charge of the escort. He had not been involved in drafting the assessment for decision (Exhibit 5, tab 7) about IMS’s proposed ETA; nor did he read it before leaving. It was not included as part of the briefing package that the duty correctional manager provided to him.

91        He did receive a call from Ms. Austin before the escort. She was looking for someone else on the unit; the grievor answered the call. She told him about IMS, who according to her was a known addict. She told him that he should keep his head up. On the day of the escort, the grievor went to the duty correctional manager’s office to retrieve the paperwork and receive his escort briefing.

92        At Drumheller Institution, the duty correctional manager reviewed the terms of the escort with the escorting officers. At SHI, he was pointed to the envelope containing the escort documents. He asked the duty correctional manager if that was everything. The response was in the affirmative. The grievor picked up the envelope and left without signing the escort briefing book as he was running late. The correctional manager provided no escort briefing; nor did the duty correctional manager remind him to sign the escort briefing book. The grievor was not provided a copy of the escort briefing instructions (Exhibit 5, tab 13).

93        On the day of IMS’s escort, the grievor arrived at SHI in his uniform. At the appointed time for the escort to begin, he changed into civilian clothing and went to pick up the escort vehicle. He did a cursory search of the passenger compartment and then brought the vehicle into the sally port, where it was completely searched by the officer at the principal entrance. He drove from there to Admissions and Discharge to pick up IMS and PO Kirby. They re-entered the sally port, and the vehicle was again searched. He assisted the principal entrance officer by mirroring under the vehicle.

94        Once through the sally port, the group proceeded to Truro, with a stop at a Tim Horton’s drive-through for coffee. They discussed sports and world affairs on the drive. The grievor mentioned that his father was a police officer in Springhill. IMS pointed out a house known in the area for criminal activity as the group passed it. IMS asked the grievor if he was related to its occupants.

95        By the time they arrived at the halfway house, they were 10 minutes late. The owner of the house and a community parole officer met them. During the developmental meeting, IMS was questioned about incidents in his past and his history at SHI. It was stressed repeatedly that the grievor was well known in the area. Even though the grievor felt that the meeting was very negative for IMS, the halfway house management indicated that they would support parole for IMS and his admission to the halfway house.

96        After they said their goodbyes and the owner of the halfway house had hugged IMS, they left. IMS and PO Kirby went to the car while the grievor stopped for a smoke. He joined them, and IMS said that they had to get to the pub to meet his son. PO Kirby said an arrangement had been made to meet the son at 11:30. This was the first time that the grievor heard anything about going to the pub for lunch other than IMS’s question days earlier, which he had referred to PO Kirby. Even though he did not agree and he did not feel comfortable with the idea, IMS and PO Kirby both made the case that the arrangements had been made and insisted it was part of the escort. Since PO Kirby had approved it, the grievor figured it was legitimate, even though he had concerns with the choice of location.

97        They sat in the vehicle in the pub’s parking lot for a few minutes, waiting to see if the son would arrive. While in the car, PO Kirby and IMS made a good case for going inside since they had to eat and they were there anyway, so the grievor agreed to go inside rather than leave when the son did not appear. They went inside and sat in the pub’s family section. A waitress came to take their orders. Once IMS had ordered and the waitress was asking the grievor to order, IMS said, “I’m going to the washroom.” The waitress gave the grievor a weird look. He panicked and told IMS to be quick. The grievor watched IMS walk to the washroom and never took his eyes off the door until IMS returned to the table. He did not have sufficient time to get to the washroom and search it before he got there. The grievor told PO Kirby that they were in a “bad situation.”

98        IMS returned to the table and sat down. The grievor did not note any demeanour changes. Their food came, and they ate in a hurry. The grievor was concerned that someone would see them in the pub. Before the waitress could come back with the bills, the grievor got up and paid the tab so that they could get out faster. Once on the road, PO Kirby asked the grievor to stop so that she could use the washroom. They stopped at the Masstown Market. All three got out and went to the washroom. The grievor had IMS with him at all times while in the Masstown Market; IMS did not use the washroom.

99        They got back into the car and started their return to SHI. In the vehicle, the grievor asked the question: “Is it in our best interests not to mention the Engine Room [the pub]?” He stated that he knew that going to the pub was “stupid”. He was concerned with self-preservation afterward. He did not want to be the guy who took an inmate to a pub. The group arrived at SHI at approximately 15:00. The grievor entered through the sally port, where the vehicle was searched. He parked at Admissions and Discharge, then escorted IMS into the correctional manager’s office and put him in the holding cell.

100        The grievor did not recognize the ETA permit submitted as Exhibit 5, tab 16, which stated that meal locations were at the escorting officer’s discretion. He knew that IMS wanted to see his son, which is why he referred IMS to PO Kirby. The first mention that was made of going to the pub for lunch to meet IMS’s son was by PO Kirby, who raised it in the days before the escort. The grievor did not agree with going to the pub; nor did he let IMS convince him as to where to go for lunch. The arrangement to go to the pub was made between IMS and PO Kirby. She advised the grievor that arrangements had been made for them to have lunch at the pub and for IMS to meet his son there. The grievor did not pull the escort permit out of the briefing package to verify it as he did not think it proper to challenge a senior officer’s direction in front of an inmate. He admitted that he should have insisted that they leave the pub rather than entering it when IMS’s son failed to appear.

101        He informed the duty correctional manager Mr. Polchies that IMS was back and that he needed two male correctional officers to strip-search him. Mr. Polchies replied that he had no one available. He asked the grievor if IMS was within his sight or sound the whole time, to which the grievor responded that he was. Mr. Polchies then told the grievor to send him back to his unit.

102        He lied to Mr. Polchies because he did not want to explain that they had had lunch at the pub and that IMS had gone to the washroom by himself. The grievor did not lie out of knowledge that IMS was bringing back contraband. He lied out of self-preservation, which was a lack of judgement. He knew that mistakes had been made, but since everyone had made it back safely, he thought things would be alright.

103        The reason the grievor asked the duty correctional manager to assign two officers to strip-search IMS was that he was still in civilian clothing and had no tools. He was also of the understanding that two officers who had not been on the escort were to do the search, to avoid any impression of bias. It is the duty correctional manager’s responsibility with the assistance of line staff to ensure that returning inmates are strip-searched before being returned to their units.

104        The grievor had never filled out a post-temporary absence report before this escort. The duty correctional manager told him that it was a quick summary on how the day had gone. The grievor wrote the report consistent with what he was told to do by the duty correctional manager and put it in the unit clerk’s mailbox. The information in the report was inaccurate. The grievor thought that since the party had arrived back at SHI without incident, he did not need to report certain parts of the events. He did not think there would be any major issues with the conduct of the ETA.

105        In the days following the escort, the grievor was aware he had made bad decisions on the escort. His conscience was bothering him, but he never expected the fallout that occurred. On April 17, 2014, he met with Ms. McLeod, who was investigating the entry of drugs into SHI. He did not tell her the truth of what had happened on the escort. He panicked; he had backed himself into a corner, so he lied. He denied telling her that he had stood outside the washroom while IMS was inside, although he admitted that he told her that he had conducted a cursory search before IMS entered the washroom. The grievor was scared and did not know how to fix it.

106        He did tell Ms. McLeod that he had heard that a package had come into SHI through the Regional Reception Centre. He had seen a good deal of activity outside IMS’s cell when doing range walks the day following the ETA and had surmised that something had come in through reception. He told Ms. McLeod about this rather than telling her the truth of what had happened on the ETA, although he did not complete an OSOR about it as he should have.

107        After the meeting with Ms. McLeod, the grievor worked the Easter weekend and on the following Tuesday went on a one-week vacation. He was very preoccupied by the events of the ETA while on vacation, during which he had time to contemplate his actions. He knew he had lied, and as time passed, he realized how bad things were. He knew that when he returned, he would have to take care of it.

108        On his return, he was met with a voicemail from Ms. Amos asking him to come into SHI the next day or to call her. The grievor immediately returned her call, but Ms. Amos had already left for the day. He tracked down her home phone number and contacted her there. She told him to come to SHI the next morning but never said why. He told her that he knew why she wanted to talk to him and that he was ready to talk.

109        The next day, at 08:00, he met with Mr. Boss at SHI and was escorted into Ms. Amos’ office. She told him that he was entitled to a bargaining agent representative, which he declined. He wanted the opportunity to get everything off his chest. The grievor was scared to death; he told Ms. Amos the truth and apologized. He was told to rewrite his OSOR and did so, including the whole truth. Ms. Amos then told him he was on administrative leave pending a disciplinary investigation, following which Mr. Boss escorted him out the gate.

110        The more time passed, the more upset the grievor became. He knew he had made poor decisions, which he had compounded by lying. He knew he had done something wrong when he agreed to go along with the plan to go to the pub even though it appeared to have been pre-arranged and approved by PO Kirby. He put his faith in a co-worker, a senior officer whom he trusted. He knew he had been had when the son did not show up to meet IMS. When the escort party returned to SHI safely, he said nothing until Ms. Amos asked him about the escort.

111        He made a series of poor decisions in a panicked state as he did not want to jeopardize his future with the employer. Instead, he let the employer down and was truly sorry. The grievor had no intention of jeopardizing SHI or helping an inmate smuggle contraband inside.

112        The grievor felt that the disciplinary hearing with the warden had gone well. He answered every question truthfully. He felt that the warden recognized that he had panicked and that such behaviour was not in his character. After the hearing, his local shop steward contacted him and told him that the warden had authorized him to be told that the termination of his employment was off the table. Mr. Carr repeated it and said that the grievor would probably be happy with the outcome and that the disciplinary letter was being drafted. This relieved a great deal of stress for the grievor, who had not been dealing with it very well; he required medication to deal with his anxiety issues.

113        The grievor has had no performance issues in the past, as demonstrated by his annual performance reviews. He pleaded to be allowed to return to SHI. If a demotion was appropriate, he would accept it. He was willing to redo his CTP and take any other remedial training the employer deemed necessary.

114        When the grievor met with the warden to be advised of his disciplinary penalty, he was handed a brown envelope with the letter of termination. He did not deal with the unexpected termination well. He could not eat or sleep. He could not get away from his guilt over what he had done. He was unable to work because of anxiety issues and relied on employment insurance sick benefits for a time. When he was well enough to work, he had to leave the area and his family to find work in the Alberta oilfields as no work was available in the Springhill area. That work has since disappeared, and the grievor has recently been working as a carpenter in the Springhill area.

III. Summary of the arguments

A. For the employer

115        The primary role of correctional officers is the safety and security of institutions, the public, and their coworkers. It is a correctional officer’s basic function to watch inmates. When an inmate is outside an institution, a correctional officer is obligated to be extra vigilant.

116        The grievor failed to read the escort permit and other relevant documents before heading out on the escort of IMS to the Truro halfway house. He did not search the vehicle as required. He let himself be persuaded to make an unapproved stop at which he let IMS go to the washroom unescorted. The grievor did not search the washroom before IMS entered it, even though he knew that IMS was a known drug user who would smuggle in contraband if given the chance. The SIO had advised the grievor of this and had warned him to make sure that IMS was watched closely. The grievor should have known that the risk of contraband coming in rose when IMS said that he wanted to meet up with someone at the prearranged pub location. The grievor’s reaction should have been to reject the idea of going to the pub. He was not attuned to the red flags raised and demonstrated a complete absence of judgement. As a trained correctional officer, he should not have given IMS the benefit of the doubt. Rather, his primary concern was self-preservation. The entire situation justified his termination as the bond of trust between the employer and him is irreparably broken.

117        The grievor still does not recognize what went wrong with the escort. He is more concerned about his reputation. The misconduct continued after the visit to the pub when he colluded with IMS and PO Kirby in the car on the ride back to SHI. The bond of trust is irreparably broken as the grievor has been “flipped”; he made a deal with an inmate. He compounded his misconduct by lying to Mr. Polchies by stating that IMS had been within his sight and sound the entire time. He failed to ensure that IMS was strip-searched, which was critical since he knew that IMS had not been in his sight and sound the entire time. His instinct should have been to suspect that IMS was bringing something in, but rather, he was focused on self-preservation. He did not consider SHI’s safety.

118        The grievor wrote an untruthful OSOR to cover his actions on the escort and did not write an OSOR when he reported drugs coming into SHI through the Regional Reception Centre. He went on vacation without telling the truth, thinking that he had gotten away with something, and he came clean only because he was forced to on his return.

119        Correctional officers are held to a very high standard, given their public safety role. They must perform their duties diligently and must demonstrate integrity at all times. Good judgement and values cannot be trained; without them, it is inappropriate for someone to be a correctional officer. The grievor’s actions could not bear any scrutiny.

120        Mr. Earle thought the grievor had admitted to his errors only because he had been caught. He is still not sure that he has the whole truth. Since the grievor has been “flipped”, he cannot return to SHI. It is impossible to be sure that similar events will not happen again even if the grievor is assigned to another institution.

121        The grievor is not alone in bearing the responsibility for the events that occurred on the ETA. PO Kirby is equally guilty. However, the grievor, not PO Kirby, was in charge of the escort. He should have just refused to go to the pub as PO Kirby and IMS had arranged. He did not ask PO Kirby any questions and went along with the plans to meet IMS’s son at the pub. When they got to the pub and there was no sign of the son, he could have insisted that they leave, but he did not.

122        Looking at what the grievor did from an independent perspective, his actions were wrong, and they justified termination. Applying the principles in Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119, termination was not unreasonable or wrong in this case, and it should not be overturned.

123        Being untruthful during an investigation is worse than lying during a disciplinary hearing and warrants the severest of penalties. Like this grievor, the grievor in Newman v. Deputy Head (Canada Border Services Agency), 2012 PSLRB 88, lied to an SIO. The adjudicator found that lying during an investigation is a serious employment offence since the grievor was entrusted with substantial trust and his dishonesty related to a fundamental part of his employment relationship (see paragraph 842). Lying during an investigation is worse than lying during a disciplinary hearing because a disciplinary hearing is not about an institution.

124        A failure to properly complete an OSOR has also been found a ground for termination (see Ontario Public Service Employees Union (Lavallee) v. Ontario (Ministry of Community Safety and Correctional Services), 2011 CanLII 67954 (ON GSB); (Ontario Public Service Employees Union v. Ontario (Ministry of Public Safety and Security) (Horan Grievance), [2002] O.G.S.B.A. No. 58 (QL); (Ontario Public Service Employees Union (Marshall et al) v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 72584; and (Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Collin Grievance), 2007 CanLII 11300 (ON GSB); [2007] O.G.S.B.A. No. 96(QL), cited to QL).

125        Candour is required of a correctional officer when completing an OSOR (Collin, at paras. 48 to 51, 53, 55, and 56). In this case, the grievor was scared of getting into trouble, and his reporting of the facts was meant to avoid trouble for him. His remorse is not genuine. His testimony was rehearsed, which prevents an assessment of his true remorse. This is a case of the grievor being sorry he was caught rather than being sorry for his actions.

126        If the grievor had any concern for SHI’s safety, he would have come forward right away, but his primary motivation was self-preservation. By lying, he compounded his offence and aggravated the security breach (see Marshall, at paras. 128 to 130; Lavallee, at paras. 182 and 186; and Horan, at para. 78). His initial dishonest conduct was compounded by his dishonesty throughout the investigation, which justifies his termination (see Thomson v. Treasury Board (Revenue Canada - Customs & Excise), PSSRB File No. 166-02-27846 (19980402) ). Honesty is the cornerstone of the employment relationship (see McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26 at paras. 80 and 81).

127        It does not matter that nothing happened on the ETA (see Management and Training Corp. of Canada v. Ontario Public Services Employees Union, 2006 CanLII 8875 (ON LA);(2006), 148 L.A.C. (4^th ) 126 (cited to L.A.C.) at paras. 100, 101, and 113; and Buchanan v. Treasury Board (Solicitor General Canada - Correctional Service, 2002 PSSRB 91). The grievor’s failure to search the vehicle and the washroom and allowing IMS to go to the washroom unescorted justifies his dismissal. The grievor was aware of what he was supposed to do on an escort and failed to act accordingly. He held a high position of trust with both the employer and the public. His conduct of the ETA was a grave error, which warranted a severe penalty (see Hazlett v. Treasury Board (Solicitor General - Correctional Service Canada), PSSRB File Nos. 166-02-19656 and 19657 (19901120)). A breach of security compounded by lying about it is a breach of the duty a correctional officer owes the public interest (see Government of British Columbia v. British Columbia Government and Service Employees’ Union (1997), 69 L.A.C. (4^th) 71).

128        Colluding with an inmate, which compromises a correctional officer’s ability to work with inmates, is worse than colluding with a co-worker. If colluding with a co-worker justifies termination, then surely colluding with an inmate does as well (see Legere v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 65 at paras. 249 and 250). If an officer colludes with an inmate, that officer can no longer control the inmate, and the power balance shifts (see Laliberté v. Treasury Board (Solicitor General), PSSRB File No. 166-02-13788 (19830711)).

129        When determining the appropriate penalty, the employer considered aggravating and mitigating factors. It considered the grievor’s repeated lying and dishonesty. Correctional officers are to be held to a higher standard of conduct than other employees (see Stead v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 87 at para. 67; and McKenzie). Trust is an essential element between the employer and a correctional officer, which, given the grievor’s absence of judgement and repeated lying, has been broken, thus warranting his discharge (see Roberts v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 28). The grievor did not admit his wrongdoing until he was caught, and then he downplayed his role by blaming PO Kirby.

130        In the employer’s opinion, no mitigating factors justified substituting a lesser penalty. The grievor was not a long-term employee. Little weight should be put on character witnesses, such as Ms. Wood. The fact that the disciplinary penalty changed over time is not relevant; the appropriateness of the termination is before the Board. The employer is entitled to change its mind. The early communication of the penalty should not play a role in assessing the amount of discipline. In the event that the Board determines that the termination was not justified, the employer asked that damages be awarded in lieu of reinstatement, pursuant to the principles in Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107. The grievor is not suited to be a correctional officer. He lacks the required instincts and basic honesty.

B. For the grievor

131        Discipline is supposed to be corrective and not punitive. The grievor made a series of mistakes related to one event. Mr. Earle and Ms. Amos considered him redeemable, even though he made those mistakes. Ms. Amos testified that the grievor admitted his errors and that one does not “throw the baby out with the bathwater”.

132        The grievor admitted he lied to Mr. Polchies about IMS being within his sight or sound at all times. The investigator’s notes show that Mr. Polchies said that IMS was with the grievor when he directed the grievor to return IMS to his unit. Had Mr. Polchies followed the CD and ensured that IMS was strip-searched, which is clearly the duty correctional manager’s responsibility, the contraband would have been discovered. Mr. Polchies was negligent in the performance of his duties, yet there is no evidence that he was disciplined.

133        Ms. Chaplin’s investigation was flawed. She did not have Mr. Polchies, Ms. Austin, or Ms. McLeod confirm the accuracy of her notes, yet the grievor and PO Kirby were both required to review and sign the notes of their interviews. Rather than interviewing Ms. Amos, she relied on her notes of the meeting with the grievor. When transcribing the notes into her report, she made several errors with dates, attributed comments to the wrong person, and incorrectly attributed comments to the grievor that he did not make. Nowhere in the notes or any other document does it appear that the grievor told IMS that he would be allowed to meet his son, yet she states this as a matter of fact. In the handwritten notes of her conversation with Mr. Earle before the investigation started, she states that he told her that IMS was bragging about being bought a steak and beer while on the escort. Mr. Earle admitted that it was only a rumour. He also admitted that he mentioned to Ms. Chaplin that the grievor had a checkered past based on a rumour he had heard, and without anything based on fact, asked her to consider it in her report, which was biased. And Mr. Earle’s decision, based on the report, was flawed.

134        Mr. Earle initially had no intention of terminating the grievor. He told the labour relations advisor that she could pass that on to Mr. Grabowsky, which she did. He also told Mr. Harrison that he could tell the grievor that termination was off the table. He was looking at his options and thought he would come up with something workable. That was until he returned from vacation. In the interim period, no new information arose that would have changed the decision, other than feedback from Labour Relations at Headquarters. When he returned, Mr. Earle was met with a termination letter written by the Regional Labour Relations Office for his signature. Apparently, while he was on vacation, Director General, Labour Relations, Mr. Houle, at CSC National Headquarters reviewed the file and determined that the grievor could no longer be trusted and should be terminated, which was not consistent with Mr. Earle’s and Ms. Amos’ testimonies that the grievor was redeemable.

135        Throughout the summer of 2014, Mr. Harrison met with Mr. Earle many times, and at no time did Mr. Earle indicate that he was seeking to terminate the grievor. Everyone Mr. Earle consulted, with the exception of Mr. Houle, agreed that the grievor was redeemable. The grievor’s coworkers demonstrated their support for him on an information line and at a fund-raising event. The uncontradicted evidence of his co-worker was that she had no qualms about working with the grievor should he be returned. His correctional manager, Mr. Boss, testified that the grievor was a good CX-02.

136        The grievor received no additional formal training for his CX-02 duties. He had no OMS training and had never reviewed an entire inmate file as a CX-02. The practice was that a CX-02 would review the entries made in the record up to 45 days forward from the last casework record on file. The CTP contained no specific training on conducting or planning an unsecure ETA. In this case, PO Kirby planned the escort, and the grievor was merely consulted on his availability. He had no involvement with the planning. On the day of the escort, he reported to the duty correctional manager to pick up the escort package and receive his escort briefing. No briefing was provided. It is the duty correctional manager’s responsibility to ensure that all escorts are briefed before removing an inmate from SHI.

137        IMS’s non-security escort to the Truro halfway house was the grievor’s first non-security escort and was the first time he was the officer in charge. He was given a sealed envelope containing the gate pass and other related escort documents and was sent on his way. He did a cursory search of the interior of the vehicle, following which it was thoroughly searched in the sally port by the principal entrance officer both on entering and on leaving SHI. He put his faith in PO Kirby, who was a senior officer.

138        When IMS got up to go to the washroom at the pub, his action startled the grievor. He knew it was wrong, and he panicked, which caused him to lie to Mr. Polchies. He told Ms. Amos the truth. He recognized the seriousness of his actions and could not live with the lies he had told. He has apologized for his actions and has shown remorse. He took steps to mitigate his losses once his health allowed him to work. While unable to work, he received employment insurance sick-leave benefits.

139        In Ontario (College of Pharmacists) v. Phull, 2013 ONCPDC 7, a pharmacist was accused of misconduct, including falsifying prescriptions, falsifying pharmacy records, dispensing drugs for an improper purpose, and submitting accounts and charges for services he knew were false or misleading. He admitted to falsifying documents eventually, although initially, he claimed he was the victim of fraud (see paragraph 38). It was determined that the pharmacist fully understood and appreciated that what he did was wrong and took full responsibility for his actions. He recognized and appreciated that he had made significant errors in judgement, which had risked his patients’ health and safety. He regretted his behaviour. Consequently, the College of Pharmacists determined that a suspension was appropriate, based on the facts of the case.

140        In BFI Canada v. Teamsters Local Union No. 419, 2007 CanLII 37668 (CA LA), the grievor in that case failed to perform a proper pre-trip circle check of his vehicle and falsified vehicle check records. While such a failure by a junior and unapologetic employee with a disciplinary record would be a prima facie case to justify termination, the problem was that the supervisor did not treat the offence as seriously as the employer sought to make it at the hearing. The supervisor was not disciplined for his role in the events despite having had the authority and opportunity to stop the grievor and avoid the negative consequences to the employer. In this case, the duty correctional manager did not give a proper briefing and did not follow the CDs and ensure that IMS was strip-searched, despite the grievor’s lie. That lie did not negate the duty correctional manager’s duty to ensure that all inmates entering SHI are strip-searched.

141        In College of Nurses of Ontario v. Fellows-Smith, 2006 CanLII 81752 (ON CNO), a nurse was alleged to have committed an act of professional misconduct by misappropriating property from the workplace and by submitting falsified documents about her claim for sick leave and the status of her return to work. The nurse did not have a prior disciplinary record with the college, although she had been dismissed from one hospital for submitting false medical reports and for claiming sick leave benefits while she worked at another hospital. She was given a letter of discipline from the second hospital for claiming sick leave benefits while working as a casual in the diagnostic imaging department at the hospital. The nurse initially denied the allegations.

142        The college’s disciplinary committee concluded that the nurse engaged in conduct that was disgraceful, dishonourable, or unprofessional by submitting falsified documents to her employer. Her nursing license was suspended for 60 days.

143        In Telus Communications Inc. v. Telecommunication Workers Union, (2012) 112 C.L.A.S. 239, the grievor testified as to how embarrassed he was by child abuse charges that had been brought against him and by the reaction of those who learned he was facing such charges. However, it was not a measure of the risk to the employer’s reputation. The grievor hoped to avoid the embarrassment of his employer knowing he had been charged with child abuse. The adjudicator applied the “Globe and Mail” test and concluded that by denying the charges, the grievor denied the employer the opportunity to manage and protect against the risk. The employer’s interest is in managing the risk of disclosure by proactive steps, not in managing any aftermath. The potential for harm and not the actual harm is at issue.

144        The potential for harm is of primary concern to the employer. There is always the possibility that the grievor may make the same error if he is reinstated. But if he were given a sufficient penalty, which would allow him to reflect on his errors, it would be unlikely that he would repeat his errors. The penalty must be corrective and not punitive.

145        The cases cited by the employer can be distinguished. In Collin, the officer only admitted his wrongdoing before the Board. In Marshall and Horan, the officers lied before the Board as well. The grievor in this case admitted his wrongdoing to Ms. Amos. Unlike the grievor in Lavallee, this grievor has no disciplinary record. He did not lie during the investigation, as was the case in Thomson.

146        The employer can change its mind with respect to discipline. Mr. Earle had the authority to make the decision on the amount of discipline to impose, but it is strange to think he would have taken time from his annual leave to change his decision.

147        The grievor has shown true remorse for his actions. The issue should be considered as one event and not as a series of disciplinable offences. It is appropriate to reinstate him. It is preferable that he be reinstated to an institution within the employer’s Atlantic Region.

C. Employer’s reply

148        Mr. Earle signed the termination letter. He owned the decision, according to his testimony. It is not unusual for the Labour Relations department to write such letters and present them to him to sign. The grievor tried to deflect responsibility throughout his argument. While the baby and the bathwater comment might have been made to the grievor, it has been taken out of context.

149        This case is about one massive event composed of a series of smaller events, which together justify termination. No other penalty would be corrective, given the complete absence of judgement demonstrated by the grievor. Mr. Earle’s early assurances are irrelevant. Any allegations of bias raised by the grievor were cured by this hearing de novo.

150        The case law cited by the grievor’s representative is unhelpful.

IV. Reasons

151        This case on its face is quite simple. It is one of the appropriateness of the amount of discipline imposed. However, this is not a case of if “this” happened then “that” is the appropriate penalty, as there are flaws and weaknesses in the cases put forward by both sides. The employer would have me believe that it has investigated the matter thoroughly and that it properly deliberated about the penalty after the grievor was given the right to address the allegations made against him. The employer would also have me believe that the employer-employee relationship is irreparably damaged despite all the evidence that the warden, whose authority it was to discipline the grievor, had indicated that it was not. The grievor would have me believe that the investigation and disciplinary processes were flawed and that he does not bear sole responsibility for the events on the day of IMS’s non-security escort to the Truro halfway house.

152        There is no doubt in my mind that the grievor was negligent in his conduct of IMS’s non-security escort. However, contrary to the arguments of counsel for the employer, I do not take the approach that each and every action, or inaction, by the grievor that day should be considered in isolation. This is not a situation in which each and every component should be examined in minute detail, but rather, the events of that day should be considered in the aggregate or, as was described in Canadian Union of Public Employees v. Canada (Transport), 2016 FC 120, as an “organic whole”. The sum total of each of the grievor’s failures that day constitutes negligence in the performance of his duties. However, the different elements of the events of that day constitute aggravating and mitigating factors that must be taken into account.

153        That negligence must be evaluated in light of the failures of others, which compounded the severity of the events. Mr. Polchies’ failure to have IMS strip-searched is ultimately the true reason that IMS was able to smuggle contraband into SHI as it was the final check before he was returned to the institution’s population. His was the last bastion of protection, and it was clearly his responsibility under CD 566-7 to ensure that the returning inmate was strip-searched. It was also the duty correctional manager’s responsibility to provide the escort officer with a proper briefing and to explain the levels and conditions of supervision and contact requirements under CD 566-5. The evidence is uncontradicted that this did not happen.

154        The employer made much of the grievor not searching the vehicle properly. However, in my assessment, any such failure was mitigated by the searches performed at the principal entrance. That is not to say that a correctional officer can ignore his or her responsibilities, knowing that someone elsewhere in the chain is also responsible for the same duty. While the curative effect of the principal entrance searches may mitigate the disciplinary penalty somewhat, the failure to search the washroom before IMS entered it is an aggravating factor, in my assessment. The grievor knew from the time of his CTP that inmates are not allowed to enter washroom facilities during an escort unless and until the premises have been searched. The grievor could very well have told IMS to sit down and wait until he searched the facilities, but he did not and “freezing”, as he described it, is no excuse.

155        Lying to one’s employer is worthy of discipline, particularly when as a result of the lies, the safety and security of others is put at risk. The multitude and nature of the grievor’s lies had one purpose and one purpose only: to hide his negligence in carrying out his escort duties. Again, I view his lies in the aggregate rather than as individual events. However, I do take into account the number of opportunities the grievor was given to admit his negligence, of which he did not avail himself, which is an aggravating factor, in my assessment.

156        The fact that the grievor did eventually admit to his failures and did so again before me is of some importance. In my assessment, he truly understands his failures and has true remorse for his actions. His regret and apology are sincere. I believe this is not a case of the grievor being sorry for having been caught instead of being sorry for what he did, as argued by the counsel for the employer. Faced with the recognition of the magnitude of his error and the impact that the events of that day had on the institution and his health, career, and family, I have no doubt that given the opportunity to do it over, the grievor would not repeat his mistakes. This must be weighed against the employer’s interests and the public interest in maintaining SHI’s security.

157        Counsel for the employer argued that the grievor, as officer in charge of the escort, was solely responsible for the events of that day, yet the evidence before me does not support that conclusion. There are serious flaws in Ms. Chaplin’s investigation and in her report. She made numerous errors relating the information she received in the course of her investigation such as that the escort required that the inmate be within the grievor’s sight and sound at all times when it was sight or sound. She also attributed comments to the grievor that were inaccurate or wrongly attributed such as IMS’s comment when he was told that the grievor did not agree with the choice of lunch venue. Her conclusions, such as that the grievor agreed to allow IMS to see his son, are suspect. She put an unreasonable amount of significance on the fact that the grievor paid for all three meals at the pub because he could claim only two on his expense form and in all likelihood had been given cash to pay for IMS’s meal.

158        She accepted PO Kirby’s version of events without explaining why it was preferable to the grievor’s version. In her investigation report (Exhibit 5, tab 3) Ms. Chaplin repeatedly preferred PO Kirby’s version of the events of that day over those of the grievor. Given her role in the events of that day, PO Kirby’s version is in my opinion no more reliable than the testimony of an unindicted co-conspirator. PO Kirby had much to gain by deflecting blame for the events of that day onto the grievor. As PO Kirby did not testify before me, I am not able to assess her credibility. The grievor on the other hand did testify and where their versions differ, I must rely on what was presented to me and that was the grievor’s evidence which was uncontradicted.

159        In my opinion, Ms. Chaplin was influenced by Mr. Earle’s comments about the grievor and his past. Her conclusions about the grievor may have been unconscious, but they cannot be ignored. In my opinion, it was inappropriate for Mr. Earle to ask Ms. Chaplin to look into the rumours he had heard about the grievor’s past in the community. They were unrelated to his conduct of the non-security escort that day and served no purpose other than to colour her opinion of the grievor.

160        PO Kirby’s version of the events of that day and of how it was that they ended up going to the pub for lunch are not available. All I have is the grievor’s uncontradicted evidence. I also find it suspect that SIO Austin specifically remembered instructing the grievor not to let IMS choose the lunch location. The reason I find it suspect is that it was provided without context or background and seemed intended to support the grounds for termination and not necessarily to accurately reflect her conversation with the grievor. In other words, it was made with the purpose of supporting the grounds for termination. For those reasons, I find prefer the grievor’s version of their conversation.

161        The employer had the opportunity to provide an alternate version of the facts other than that of Ms. Chaplin, whose report is flawed and one-sided. I accept the grievor’s version of the facts that PO Kirby was responsible for agreeing with IMS that he could meet up with his son at the pub that day. No doubt the grievor could have put an end to it before it happened, which is why he was negligent.

162        The agreement between the grievor, PO Kirby, and IMS to lie about their lunch location is particularly difficult to deal with from a disciplinary perspective. I do not agree that it was a separate isolated incident; rather, it was part of the aggregate of the events of that day. As such, it is an aggravating factor, in my assessment. Unlike the lies that followed the return from Truro, this one was intended to hide from the employer the true events of that day. The grievor was deceitful and failed in his duty of honesty and forthrightness, which goes directly to his integrity and suitability to be a peace officer.

163        Looking at the organic whole of this case, it is clear that a very serious penalty was called for. Those best able to assess the events of that day and the threat they posed to SHI, Mr. Earle, Ms. Amos, and Ms. Chaplin, all agreed that the grievor was redeemable. This is of particular significance to me since the employer’s counsel argued at the hearing that the employer-employee trust relationship has been irreparably damaged and that termination was the only suitable remedy. If so, why then did Mr. Earle relay the message to the grievor through Mr. Harrison that termination was not being considered? Why did Ms. Paquette relay the same message to Mr. Grabowsky, in conformance with the agreement between the employer and the bargaining agent that the national president of the bargaining agent would be advised in advance of the imposition of any serious disciplinary penalty?

164        Mr. Earle provided no explanation for the change in direction. The grievor would have me accept that the change was made at the direction of Mr. Houle, the director general, labour relations, at Headquarters in Ottawa, Ontario. Counsel for the employer argued that the grievor had been flipped and that termination was the only option. However, Mr. Earle’s testimony did not support counsel for the employer’s statement. While he was concerned that the grievor might have been “turned” by his collusion with IMS, Mr. Earle did not testify that he believed that the grievor had in fact been turned.

165        Mr. Earle described reconsidering his decision while on leave in late July. He also testified that upon his return, he found that Labour Relations had drafted the termination letter. When asked at whose direction the grievor was terminated, he responded that he owned the decision and that he would not have signed it had he not agreed with it. That was a rather obtuse response to a direct question and in my opinion amounts to obfuscation. I have no sense of who determined that the grievor should be terminated. Mr. Earle’s version makes me question his credibility as far as his testimony on this subject goes.

166        In assessing Mr. Earle’s credibility on this point, I have taken direction from Faryna v. Chorny, [1952] 2 D.L.R. 353 at para. 233, as follows:

233. To assess a witness’ credibility, the person hearing the evidence must not solely rely on the impression left by the witness but must base the assessment on an examination of how the testimony given fits into the evidence as a whole, taking into account other testimony, the facts established, a reasonable probability of events and the assessor’s experience in human relations….

167        Mr. Earle’s description of how he arrived at an entirely different opinion is completely without explanation. He did not describe a “walk in the snow moment” during which he came upon this epiphany. He acknowledged that he had no further information to consider. He had concerns about the grievor having been flipped as early or as late as at the disciplinary meeting and described his concerns with the trust relationship even before he left on vacation, yet he advised the grievor’s representatives that he was not seeking termination. Clearly, he was of the opinion that the grievor was redeemable.

168        Other employer witnesses also opined that the grievor was redeemable, which was consistent with the bulk of Mr. Earle’s testimony but was completely inconsistent with the result. Also inconsistent with the result was the uncontradicted evidence of Mr. Harrison and Mr. Grabowsky, who were both advised that terminating the grievor was not being considered. When the evidence is weighed in its totality, including that of key employer witnesses, it does not support the employer’s conclusion that the trust relationship was irreparably damaged. Therefore, the employer-employee relationship was not destroyed, and terminating the grievor was not justified.

169        Both parties provided me with numerous cases that deal with the appropriateness of discipline. While they are informative, they are not terribly instructive as each is based on a very particular set of facts. When determining discipline, the fact situation drives the decision on the appropriate penalty, subject to principles that have been developed over time. As was stated in Cooper, a disciplinary penalty should not be overturned unless it is clearly unreasonable or wrong. Based on the facts of this case, including the seriousness of the grievor’s violations of the employer’s codes of conduct and discipline, the shared responsibility for the failure to strip-search IMS on his return, the curative effect of the vehicle search at the principal entrance, the bias introduced into the investigative process by Mr. Earle when he asked Ms. Chaplin to look into rumours about the grievor’s past, the role of PO Kirby, and the testimonies of many witnesses that the grievor was redeemable, termination was an unreasonable penalty.

170        What then would a suitable penalty be? The employer’s counsel argued that should I conclude that the grievor’s termination was unjustified that reinstatement not be considered. The grievor has little service time with the employer, particularly at SHI. Until the event at issue, he had a clean disciplinary record and good performance reviews and had recently been promoted to the CX-02 level. Length of service can be both a mitigating and an aggravating factor. The fact that he had few years of service with the employer does not necessarily stand as a point against the grievor. When considering termination, its long-standing impact on the grievor has to be considered, and given his age (35 at the hearing), it will have a great impact. He expressed remorse, albeit late in the process, and did come forward with the truth. He cooperated throughout the disciplinary process, including at the meeting with Mr. Earle and Ms. Amos.

171        I believe that reinstatement is appropriate in this case, based on the comments of Mr. Earle, Ms. Amos, and Ms. Chaplin. They all indicated that the grievor was redeemable, and I rely on their assessments, except as otherwise stated. The grievor’s representative sought a 30-day suspension, as Mr. Earle initially promised. However, that would be insufficient to drive home the seriousness of the grievor’s actions and the threat that he posed to the safety of SHI and the community. Rather, I think that a lengthy suspension and permanent demotion to the CX-01 level is appropriate in this case.

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

V. Order

173        The grievance is allowed.

174        The grievor shall be suspended without pay for the period from May 8, 2014, to the date of this decision.

175        The grievor is to be demoted to the CX-01 level effective the date of this decision.

176        The grievor shall be reinstated to SHI or to such other institution as the parties may mutually agree at the CX-01 level, effective the date of this decision.

177        I will retain jurisdiction over the implementation of this order for a period of 90 days.

May 4, 2016.

Margaret T.A. Shannon,
a panel of the Public Service Labour Relations and Employment Board