FPSLREB Decisions

Heard at Calgary, Alberta,
July 12 to 15 and December 6 to 8, 2016.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1         The grievor and applicant, Claude Yayé (“the grievor”), grieved the termination of his employment as a correctional officer (CX) by the employer, the Correctional Service of Canada (CSC).

2        The employer filed an objection to the jurisdiction of the Public Service Labour Relations and Employment Board (“the Board”), alleging that the grievance’s referral to adjudication was not done within the statutory time limit set out in s. 90 of the Public Service Labour Relations Board Regulations (SOR/2005-79; “the Regulations”). That is, a reference to adjudication may be made no later than 40 days after the day on which the grievor received the decision at the final level of the grievance process or, if no decision was made at the final level, as in this case, no later than 40 days after the period set out for a response at the final level.

3        After the employer filed its objection, and on the grievor’s behalf, Andrea Tait, of the grievor’s bargaining agent, made an application for an extension of time to refer the grievance to adjudication pursuant to s. 61 of the Regulations. I reserved my decision on the application as it required much of the same evidence as did the decision on the grievance. The hearing on both matters proceeded simultaneously.

4        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 Board to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. The Board heard this grievance and application under the authority of the related implementing statutory instruments.

II. Summary of the evidence

A. For the application for an extension of time

5        Ms. Tait is an advisor with the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN; “the union”) for its Prairie Region. She provides legal and administrative support to union locals within the Prairie region, including the local at the CSC’s Drumheller Institution (“the institution”) in Drumheller, Alberta. The union office provides training and collective agreement interpretation, and it offers advice on the union’s constitution and advises elected representatives at the local level. Over the past three years, the regional union office has provided support people who have assisted Ms. Tait with representing members before the Board at adjudication and before other administrative tribunals.

6        Ms. Tait became responsible for disciplinary investigations involving union members in the summer of 2014. Before then, one of her coworkers, whose employment ended in January 2014, had been responsible for it. Between January 2014 and January 2015, Ms. Tait worked alone. The union had approximately 5000 grievances outstanding at the adjudication level at the time.

7        Ms. Tait became involved with a grievance only once it was transmitted to the third level of the grievance process. The local representative sends the complete file to the regional office along with a signed copy of Form 20 or 21 to refer a matter to adjudication. Each local is responsible for grievances at the first and second levels of the grievance process. Ideally, each local will have a grievance officer; if not, the local president assumes this role. The regional office gives the local the essential paperwork, following which it is the local representative’s role to meet with the grievor and complete as much of that paperwork as possible. The grievance officer is responsible for moving the grievance to the different levels of the grievance process and for tracking the dates for the next movement through the levels.

8        In this case, the grievance was filed at the third level of the grievance process on May 9, 2014 (see the transmittal form, Exhibit 2, tab 2). It was not referred to adjudication until September 19, 2014. The union referred the matter to adjudication knowing it was late because it dealt with a termination. The file had been discussed at regional labour-management meetings and at bilateral meetings between union local vice presidents and the institution’s management.

9        Ms. Tait emailed the president of the institution’s local on September 11, 2014, asking for the whereabouts of the grievance. She knew that a disciplinary investigation had been launched into the allegations against the grievor as she had received the disciplinary report. She eventually received the file on September 17, 2014, and referred it to adjudication two days later (see the notice of referral, Exhibit 2, tab 3).

10        During 2013, 2014, and 2015, the local at the institution had specific issues. Its president left and was replaced by an interim president, who became very ill, which interfered with his ability to handle union business. That person eventually succumbed to the illness. He was replaced by another member, who did not involve himself with the local’s activities, despite being its president. His replacement had no union experience and resigned shortly after being elected, due to personal issues. Finally, Jacob Suelzle was elected in February 2015.

11        Mr. Suelzle is a CX-02 at the institution. He described the local as having been in complete disarray since the death of its president. No one at the institution knew what to do with grievances. According to Mr. Suelzle, by summer 2014, union members in need of a representative or advice had no one on-site to consult.

12        Despite being a shop steward at the time of the events and the filing of this grievance, Mr. Suelzle had nothing to do with it. He was aware of the incident that had occurred, but that was the extent of his knowledge of the file. Representatives from the union’s national office advised him only in 2016 that the grievance was late with respect to being referred to adjudication. This was the first either he or the grievor had heard of it. Both presumed that the matter had been moved along according to the required timelines, but it became apparent that union representatives were waiting for a response at the final level before referring it to adjudication.

B. For the grievance

13        The grievor worked the overnight shift between 23:00 on February 14, 2014, and 07:00 on February 15, 2014, at the institution. During this shift, he was responsible for verifying the existence of a living, breathing body in each cell on Unit 8, F Range. During the shift, while he was responsible for ensuring the safety of each inmate on that range, an inmate committed suicide in his cell. The inmate’s death went undetected until the morning of February 15 by the CXs who relieved the grievor from his night shift.

14        While conducting his rounds, the grievor was responsible for looking into each and every cell, for verifying the condition of the inmate occupying each cell, and to ensure that the inmate was not involved in any illegal or prohibited activity. The grievor’s rounds were recorded by cameras located at each end of the range. On the videotape, he is seen hurriedly walking up and down the range without taking the time to look into each cell. The cells are equipped with nightlights operated from outside to help CXs see the occupants. The grievor does not use the nightlights to look into any cell on the range. He carries a flashlight and flashes it at the range walls but does not use it to examine the interiors of the cells. On the video, he does not look through the windows in the cell doors; nor does he stoop to look.

15        On December 6, 2016, I took a view of Unit 8, Range F, at counsel for the employer’s request. I was accompanied by the grievor, the employer’s labour relations representative, a correctional manager assigned to conduct the tour, and the grievor’s and the employer’s counsel. It was explained to all present that what was seen during the course of the viewing would be considered as evidence.

16        Range F is approximately 50 feet long. It is lined on both sides with cells approximately 12 feet long and 8 feet wide. There are 19 cells in total. A window located approximately five feet off the floor allows CXs doing their rounds to look into a cell. Each cell contains a desk, chair, closet rod, bed, and toilet. There is approximately two feet of space between the edge of the desk and the edge of the bed. Only the toilet is not easily seen through the window. Located directly over the closet rod is the nightlight. This was the configuration of the cell in which the inmate committed suicide.

17        Chester Eatmon was one of two CXs who relieved the grievor on the morning of February 15, 2014. He started his shift at 06:30 hours and conducted the first inmate count at 06:45 hours. During his count, Mr. Eatmon was alerted by his partner that an inmate was in medical distress and was non-responsive. Mr. Eatmon alerted the command post on the unit and identified that medical assistance was required. He returned to the cell in question, which was examined on the viewing, and entered it with his partner.

18        The CXs discovered the inmate with a ligature tied around his neck and ankles, which suspended him from the closet rod in the cell. The inmate could be seen hanging through the cell door window; he was in a hammock-type posture with his body completely suspended approximately six inches off the ground. He was positioned facing out of the cell. The CXs cut the ligature, moved the inmate to the bed, and attempted to perform cardiopulmonary resuscitation (CPR) and to apply a defibrillator. The inmate’s body was stiff and difficult to move. Mr. Eatmon found it difficult to open the inmate’s airway as it was rigid.

19        Dr. Gregory Van Wyk has been in private practice in Alberta for more than 20 years and had been the only primary-care practitioner at the institution for 21 years as of the hearing. He has dealt with many unresponsive inmates over the years and has twice pronounced inmates dead. He is familiar with the science of death and the effects of the passage of time on a dead body, which are well known to physicians, according to his evidence.

20        Dr. Van Wyk testified how time of death is determined when a body is found. Within 20 to 30 minutes of death, blood begins to pool; this is known as lividity, which is a sure sign of death as the blood pools when the heart fails to function. The blood follows gravity, and depending on the body’s position, the skin in the area where the blood pools turns blue. This may take six to eight hours and can be used to determine time of death. As the temperature of the body drops, muscular rigidity sets in, known as rigor mortis. It starts with the smaller muscles, and over time, generalized rigidity sets into the body. It takes between eight and ten hours for full rigor to set in all joints, and the temperature of the environment may speed it up or slow it down. Decomposition resolves rigor mortis in approximately 30 hours after death.

21        If the legs and arms of the deceased are stiff, allowing for variabilities, the body has been dead for at least a minimum of three hours, according to the doctor. Given the description of the inmate’s body, the doctor testified that he would conclude that since the inmate’s arms and legs were rigid but the CXs were able to break the stiffness, he had been dead for approximately three hours. Given that the inmate was found at 07:00 in a hammock shape and that the CXs had to break the rigidity to place the inmate on his back to apply CPR, there is a clear indication that the inmate died at least three hours before being discovered.

22        The inmate’s body was transported to the ambulance on a stretcher. Getting the inmate onto the stretcher was very difficult. The CXs could not manipulate the inmate’s stiff body in a way to have it lie flat. While the body was being transported, CPR continued. Mr. Eatmon reported all this in his officer’s statement and observation report (OSOR), which was filed immediately after the incident (Exhibit 2, tab 5).

23        Bradley Dow is a correctional manager at the institution. As part of his job, he reviews rounds and counts conducted by CXs. He described what is expected of a CX properly conducting rounds. To properly inspect the interiors of the cells, a CX must look inside the cell via the window in the cell door to see whether it contains a live, breathing body and what is happening inside the cell. As part of his rounds review, Mr. Dow examines the timeliness of a given round, whether it was done too slowly or too quickly, and whether it done as the schedule required. Properly conducting a round of a full range takes a minimum of 60 seconds. This differs from day to night; on day shifts, there is natural light, and the inmates are awake. On night shifts, the ranges are dark. There is no natural light, so it takes longer to conduct a round.

24        On night shifts, if the nightlight is not used, a CX is to shine a flashlight onto the back wall or ceiling of the cell. The white walls of the cells reflect the light and illuminate the cell sufficiently to see the bed. The CX is expected to watch and see if the inmate in the bed is breathing. It is possible to see the rise and fall of the blankets. If the inmate is not in his bed, the CX is expected to verify if the inmate is on the toilet in the right-hand corner closest to the cell door. The desk, bed, chair, and closet rail can all be seen at the same time. Properly evaluating an inmate’s status takes five to seven seconds per cell.

25        A part of Mr. Dow’s correctional manager duties is reviewing rounds and counts. A rounds review is done monthly via a video recording review or by watching the rounds being conducted live from the control centre. When doing the review, Mr. Dow watches a CX’s movement up and down a range and the recording of the time of the round (known as the punch) at the end of the range. The date, time, range, CX, and action taken, if required, are all recorded in a report.

26        CXs are taught to do rounds at the start of their careers. They are provided with mentoring, in which the CX is shown how to conduct the round by a more senior officer. This is done when the CX starts at an institution, during the initial 40 hours of on-the-job training. According to Mr. Dow, properly conducting rounds does not take a lot of training. Any mentoring is recorded in an on-line database available to correctional managers. Mr. Dow mentored the grievor on the segregation unit. He did not remember any concerns with the quality of the grievor’s rounds at the time.

27        Darcy Emann was the institution’s warden when the suicide occurred. He explained to the hearing that the responsibilities and duties of a CX on Unit 8 are described in the unit’s post order (Exhibit 2, tab 16), which states that between 23:00 and 06:30, rounds are to be completed every 60 minutes. When conducting one, a CX is to go to each cell and ensure that there is a live, breathing body there and that the inmate in not in distress or involved in any illicit activities.

28        Since rounds done between 23:00 and 06:30 are not “stand-to” counts, in which inmates are to stand up in their cells when the count is being conducted, it is more important that the CX conducting the round verify that the inmate in each cell is alive and breathing. This requires that the CX take the time to look through the window in each cell door and to use the cell’s nightlight or the flashlight that the CX carries to examine the cell’s interior. The nightlight switch is located outside the cell door.

29        On February 15, 2014, Mr. Emann testified that he received a call at his home at approximately 07:00 hours. He was told that there had been an attempted suicide at the institution. He spoke to the correctional manager on duty and was told that the ambulance was en route. Mr. Emann immediately left for the institution, arriving at approximately 07:30 hours. He was updated on the institution’s response to the incident, and he reported the events to his superiors.

30        The next day, Mr. Emann reviewed the OSORs filed by the CXs involved that were written the morning on which the deceased inmate was discovered. According to Mr. Emann, he was concerned about the information in the reports. In particular, he was concerned about how long the inmate had been hanging in his cell without any response by the CXs. The employer had brought significant attention to the requirement of rounds and their proper conduct by CXs, particularly since the 2007 death of Ashley Smith while in custody. The top priority for CXs is to ensure the safety of inmates in the employer’s custody.

31        Between 23:00 hours and 07:00 hours, there is no inmate movement at the institution. So, according to Mr. Emann, the primary function of a CX during those hours is properly conducting hourly rounds, which is fundamental to the discharge of a CX’s duties. The grievor was assigned to supervise the unit where the death occurred, according to that evening’s roll call (Exhibit 2, tab 4). He was alone on the unit between 23:00 and approximately 06:30, when he was relieved. He did not report any concerns or significant events during his shift.

32        The CXs who discovered the inmate’s body reported that they had received no information from the grievor of any concerns when they relieved him at approximately 06:30. They discovered the inmate at approximately 07:00. The CXs reported that the body was stiff, which caused Mr. Emann considerable concern according to his evidence, since the last reported round was recorded as having taken place at 06:02. He testified that since the body was discovered within an hour of the last reported sighting of the inmate, it should not have been stiff.

33        Mr. Emann reviewed the quality of the grievor’s rounds by reviewing the video recording of them after the Assistant Warden, Operations, and the Deputy Warden had reviewed them. The record of the rounds indicated that all the counts had been done, but Mr. Emann had significant concerns with the quality of the rounds based on his review of the video recordings. He followed this up with a site visit and discovered that when a flashlight is shone into a window on the range in question, there is significant reflection. To see through the window using a flashlight, Mr. Emann discovered that the flashlight has to touch it.

34        With this information, Mr. Emann again reviewed the video recordings of the grievor conducting his rounds on the night in question. Mr. Emann concluded that the grievor demonstrated significant negligence in performing his rounds. Mr. Emann concluded that the grievor would not have known if an inmate was in distress or even if an inmate had escaped. Each round he conducted was concluded within 30 seconds of his arrival on the range. He did not look in the cell windows. According to Mr. Emann, on the last round, which was conducted at 06:01 on February 15, 2014, the grievor did not even look in cell 7, where the inmate was found. The last time the inmate was known to be alive was at the stand-to count on February 14, 2014, at 22:30 hours. When the inmate was discovered, his arms and legs were stiff, which indicated to Mr. Emann that the inmate had been dead for at least three hours before being discovered.

35        After repeatedly watching the video recordings of the grievor’s rounds on the February 14 to 15, 2014, night shift and after discussing them with his management team, which had also watched them, Mr. Emann testified that he concluded that the grievor could not have verified the safety of every inmate in every cell. A proper round takes time, and the grievor’s rounds lasted 30 to 50 seconds. He walked straight down the hall, registered the round, and walked straight back up the range. He was focused ahead at all times and not on the inmates in the cells.

36        In his OSOR, the grievor stated that on each and every round, he looked into cell 7 on F Range, and that each time, he saw a live, breathing body inside. Within 50 minutes of the grievor apparently seeing a live, breathing body in cell 7, the body was discovered. The inmate was pronounced dead by 07:30 hours. Mr. Emann concluded that the grievor had not fulfilled his obligation to ensure that the cell contained a live, breathing body. According to Mr. Emann, the grievor made no efforts to assist the inmate and paid no attention to what was occurring in the cell. Clearly, the inmate was not in his bed, which the grievor should have noted. Seasoned staff who had seen the body raised issues with Mr. Emann about its condition when it was discovered, which contradicted the grievor’s statement that the inmate was last seen alive and breathing at 06:05 on February 15, 2014.

37        Mr. Emann testified that from the beginning, he felt that something was wrong with the scenario described by the grievor. He testified that a reasonable person would not conclude that the grievor had verified the existence of a live, breathing body in each cell as he claimed he had. Based on this, Mr. Emann determined that a disciplinary process should be initiated. On February 18, 2014, he directed the Assistant Warden, Operations, and the Deputy Warden that the grievor was to be put in a non-inmate contact post until further notice (Exhibit 2, tab 9).

38        The grievor was provided with notice that a disciplinary hearing would be held on March 11, 2014 (Exhibit 2, tab 10). At that hearing, accompanied by his union representative, he was shown the video recordings of his rounds. The quality of his rounds was discussed. Mr. Emann testified that he expected the grievor to express serious concern about the incident and its impact on everyone involved. According to Mr. Emann, the best the grievor did was comment that there was room for improvement in his rounds and that he did not understand how he missed an inmate hanging in his cell. Mr. Emann testified that the grievor was given every opportunity to provide him with any relevant information that might have mitigated his failure that night, but none was forthcoming.

39        Mr. Emann testified that he did not get the sense that the grievor understood the importance of properly conducting rounds even though the employer continually stressed the importance of rounds and counts to all CXs. The grievor did not understand the significance of protecting those in his care. During the disciplinary hearing, he was unemotional, according to Mr. Emann, and had no sense of the significant impact of the events. The grievor did tell Mr. Emann that it would not happen again and that he could see that he did not spend enough time checking into the cells.

40        Mr. Emann considered all the information he received at the disciplinary hearing, reviewed the video recordings again, read the OSORs, and consulted with the Assistant Deputy Commissioner, Institutional Operations, for his region. Based on this, Mr. Emann concluded that he could no longer trust the grievor to properly conduct rounds on the night shift when he was alone. He concluded that the grievor had been negligent in the performance of his duties and that the grievor was “ignorant” to the significance and consequences of his actions.

41        As Mr. Emann saw it, the issue was that the grievor had failed to verify that each and every inmate was safe in his cell. The issue was not solely that an inmate died that night but that the grievor failed to intervene when that inmate was in distress, as he was obligated to. The grievor should have noticed that the inmate was not in his bed. The grievor was paid to prevent what happened. He made a significant error in judgement, and as a result, an inmate died.

42        Mr. Emann considered how and if his bond of trust with the grievor could be repaired. He concluded that the grievor’s conduct had destroyed it irreparably. According to Mr. Emann, the appropriate penalty was terminating the grievor’s employment. When making that determination, Mr. Emann testified that he considered that the grievor had five years of employment with the employer, that he had no previous disciplinary record, that he had had good performance reviews, that he was not a problem employee, and that he had performed his job well. They were all mitigating factors that were outweighed by the degree of negligence the grievor demonstrated and by the impact on the public trust in the employer.

43        According to Mr. Emann, the grievor received extensive training throughout his career on the proper conduct of rounds and counts. Both were stressed at shift briefings, unit meetings, and in emails and communiqués from the employer’s headquarters, and despite this, the grievor failed in his duty to conduct rounds properly. Mr. Emann testified that he had an enormous doubt that the grievor would be able to perform his duties to the best of his ability and to the standard expected.

44        Mr. Emann met with the grievor on April 14, 2014, and advised him that his employment was terminated as a result of his gross negligence in performing his duties. This was confirmed in the termination letter he was provided (Exhibit 2, tab 13). Regardless of the nature of the death and whether the inmate could have been revived, each and every round the grievor conducted that night was of concern to Mr. Emann.

45        The grievor was terminated for breaching the CSC’s CD 566-4: Inmate Counts and Security Patrols and CD 060: Code of Discipline. The particular paragraphs breached in the second directive were 6(f), failing to take action or otherwise neglecting his duty as a peace officer; 6(g), failing to conform to or apply a commissioner’s directive, standing order, or other directive as it related to his duties; 6(j), wilfully or through negligence making or signing a false statement in relation to the performance of his duties; 6(m), performing his duties in a careless fashion so as to risk or cause bodily harm or death to any other employee or other person directly or indirectly; and 6(p), neglecting to take appropriate action when an offender engaged in an action likely to endanger life or property (see the letter of dismissal, Exhibit 2, tab 13).

46        Jason Hope was the assistant deputy commissioner at the time of the inmate’s death. He signed the revised termination letter rather than Mr. Emann because Mr. Emann did not have human resources delegation under s. 34 of the Financial Administration Act (R.S.C., 1985, c. F-11) to sign the original at the time of the grievor’s termination. This delegation is required to effect such a change in employment status. For this reason, a second letter of termination was issued to the grievor, signed this time by Mr. Hope (Exhibit 2, tab 14). He had been involved in the process conducted by Mr. Emann and was well aware of the circumstances and the information that the Warden had considered.

47        Before signing the letter, Mr. Hope asked his director of operations to review all the rounds the grievor had carried out. Mr. Hope reviewed the videotape of the rounds the night of the death, which caused him to be “appalled and disappointed” by what he saw, according to his evidence. He testified that he could not understand how the grievor, with five years of experience, had reached the point that he had failed the most basic tenet of his role as a correctional officer.

48        Mr. Hope agreed with Mr. Emann that the grievor’s breach of trust rendered a continued employment relationship impossible. CXs are in institutions 24 hours a day, 7 days a week. The employer trusts that they will discharge their duties effectively and efficiently. Those CXs who work the overnight shift bear a greater burden of responsibility to be watchful, since they work alone.

49        The grievor did not meet that expectation. He was negligent in the conduct of his duties and did not follow the CSC’s directive in CD 566-4: Counts and Security Patrols. It was clear from the video recording that Mr. Hope viewed that the grievor did not verify the presence of a live, breathing body in each cell despite what he wrote in his OSOR, which was completely false. The crew that relieved him discovered the dead inmate and reported that the inmate was stiff when found, which nurses confirmed. Had the inmate been seen alive at 06:02, as the grievor had claimed, then the body would not have been in that condition when the relief crew that came at 06:30 discovered it.

50        The grievor left his colleagues a mess to deal with, and Mr. Hope was no longer able to trust him to follow the employer’s policies or mission statement.

51        Mr. Hope did not know how the employer-employee relationship could be repaired since the grievor had failed so fundamentally as a CX. The fact that he had five years’ experience aggravated the situation since he should have known better. Regardless of his performance reviews, this one severe failure to meet performance expectations and its outcome justified the termination.

52        Mr. Suelzle testified as to his experience discovering an inmate who had committed suicide. As the primary responder, he looked into the cell through the window. When he was unable to locate the inmate, he called for the cell door to be opened. Along with three other CXs, he entered the cell. Had he been alone, as the grievor had been, he would not have been able to enter the cell until help arrived. Entering a cell in such circumstances requires having at least two CXs present. On a midnight shift, this causes delays in response times, since CXs who patrol alone must wait until another CX arrives before entering a cell.

53        The grievor denied that management had ever assessed the quality of his rounds during his time at the institution. He assumed that that quality had met the standard required and stated that not until he saw the video recording of his rounds from the night in question did he realize that he needed to improve how he conducted them.

54        The grievor testified as to his understanding of how rounds were to be conducted. He was to walk down the range after recording the start of the round. He was to proceed down every range and look in every cell that was occupied, to establish that each one contained a live, breathing body and that no illegal activity was occurring. If an inmate were in need of medical assistance on a night shift, he was to call and wait for backup before entering a cell. Depending on where his backup was, it could take 10 to 15 minutes to respond. Conducting rounds and counts was part of his core training program (CTP) and the on-the-job training he received when he started at the institution.

55        According to the grievor’s evidence, normally, before the start of a night shift, he was briefed by the day crew finishing its shift, which involved identifying any inmate requiring closer scrutiny. On the night in question, he was not provided with a briefing; he was not informed of any risk that the inmate in question might try to hurt himself. He and another CX conducted the 22:30 count, which was the last count of the day on February 14, 2014. The grievor and another CX saw the inmate alive at that count. After that, the grievor was alone for the rest of the shift.

56        When working alone, the grievor used a timer to remind him to do a round, following which he would record it in the logbook. His last round of that night shift started on the A Range at approximately 06:00. His round on F Range began at approximately 06:02. At approximately 06:40, he was relieved, and he went to the correctional manager’s office to turn in his pepper spray and to check out at the end of his shift at 07:00. He drove home, slept for approximately five hours, and then headed back to the institution to begin his next night shift.

57        When he returned on the night of February 15, 2014, he went into the correctional manager’s office to check in. The Correctional Manager on duty told him that an inmate was found dead on Unit 8, F Range, by the crew that had relieved him from his night shift earlier that day. According to the grievor, the Correctional Manager told him that the dyster wand used to record the start and the end of a round had been checked and that his rounds had all been on time.

58        According to the grievor’s evidence, the Correctional Manager told him not to worry about it and to write a brief OSOR on the events of the night before, which he did (Exhibit 2, tab 7). He wrote what he truly believed had happened; he had no reason to be deceitful. He knew that cell F7 was occupied that night and remembered looking into it. However, as he testified, with 19 cells per range and 6 ranges to check, it was impossible to recall whether he had checked on the inmate in cell F7.

59        The period leading up to the night shift of February 14, 2014, had been a difficult time in the grievor’s personal life, according to his testimony. He wife needed surgery and was to be off work for four weeks. They had no family to help with their children. Not knowing when exactly the surgery would occur made it difficult for the grievor to make plans. He was worried about his home situation, but he never told the employer anything about it. The first time he mentioned it was at the hearing.

60        According to the grievor, he was never told that after the inmate’s suicide, he was not to be posted to living units. In fact, he did work units on February 15, 16, 17, 18, March 27, and April 1, 2, and 3 (see the schedule at Exhibit 19, tab 3). He had no performance issues on any of these shifts. His performance reviews had been good overall, and the one for the period ending March 31, 2014, was very good (Exhibit 15).

61        At the disciplinary hearing, the grievor claimed that he acknowledged that he did not spend enough time doing the rounds on the night at issue. He told the employer that he was very disappointed in the quality of his rounds because he held himself to a higher standard. He stated that he did not know how he missed the inmate in cell F7 but admitted it was possible that he did. The grievor testified that he felt sympathy and compassion because an inmate died and his colleagues had had to deal with it, but he did not feel responsible for the inmate’s death. No one could say that had the rounds been properly done, it would have prevented the inmate’s death. He told the Warden that if he were given a second chance, it would never happen again.

62        The grievor was shown the video recording of his rounds on the night of February 14, 2014. He testified that he saw himself looking properly into some cells and looking briefly into others. He admitted that it was possible that he missed some cells that night but stated that it was inaccurate to say that he did not look into the vast majority of them. According to him, it was possible he did not look into cell F7, but according to his evidence, it is not accurate to say he did not look into the cells. He challenged the employer’s conclusion that he had not looked into cell F7. According to him, the video recording of his rounds was of poor quality and was not clear, so it was impossible to see if he missed a cell.

63        The day on which his employment was terminated, the Warden told the grievor that if he did not agree with the employer’s decision, he should grieve it. The grievor consulted two union representatives, Randy Bunse and Paul Leclair, and told them that he wanted to grieve. They filed his grievance on April 20, 2014, and told him that they would take it from there.

64        According to his evidence, the grievor was in regular communication with Mr. Bunse, who told him to be patient and that everything moved slowly. When he asked Mr. Bunse why things were taking so long, he was told that that was the way it was. The grievor never checked his collective agreement, the collective agreement between the Treasury Board and the Correctional Service Canada (CSC) and the Union of Canadian Correctional Officers -  Syndicat des Agents Correctionnels du Canada  Confédération des Syndicats Nationaux – CSN (UCCO-SACC-CSN) (the collective agreement) to determine the steps of the grievance process. It was Mr. Bunse’s fault that the deadlines were missed. He told the grievor that the union was taking care of it, which is what the grievor testified he believed.

65        The grievor admitted that before his termination, he was aware of his obligations under the CSC’s “Code of Conduct” and “Standards of Professional Conduct”. He signed a declaration to that effect 11 days before he was sworn in as a CX.

III. Summary of the arguments

A. For the extension of time application

1. For the employer

66        The grievor has not provided any clear, cogent, or compelling reason for the delay referring his grievance to adjudication, so no extension of time should be granted. Under s. 90(1) of the Regulations, the Board is without jurisdiction unless the grievor referred the matter to adjudication with 40 days of receiving the response at the final level of the grievance process or, if no response was given, within 40 days of the date on which it was due. The employer never issued such a response, even though the collective agreement specifies that it is due within 30 days of receiving the grievance at the final level. It never intended to issue a decision at the final level of the grievance process, although that was not communicated to the grievor or the union.

67        The case of Chow v. Treasury Board (Public Health Agency of Canada), 2015 PSLREB 81, clearly states that if there is no response at any level of the grievance process, it is to be considered denied. That being so, grievors have recourse at s. 90(2) of the Regulations. A response to a grievance is not a criterion to be considered when calculating timelines. In this case, the final-level response was due on May 9, 2014. That means that the grievor had until July 12, 2014, to refer the matter to adjudication. He did not until more than 50 days later, on September 19, 2014.

68        The untimeliness of the referral to adjudication is not in dispute. Under s. 61(b), a grievor may apply for an extension of the time limit for referring a matter to adjudication. Such applications are granted sparingly so as not to destabilize the labour relations scheme in the public service (see Lagacé v. Treasury Board (Immigration and Refugee Board), 2011 PSLRB 68). The timelines under the regulations are prescriptive and should be extended only by exception (see Martin v. Treasury Board (Department of Human Resources and Skills Development), 2015 PSLREB 39 at para. 57).

69        The test for granting an extension is found at paragraph 14 of Cloutier v. Treasury Board (Department of Citizenship and Immigration), 2008 PSLRB 31 (which relied on Mark v. Canadian Food Inspection Agency, 2007 PSLRB 34; and Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1). To be considered are whether there is a clear, cogent, and compelling reason for the delay; the length of the delay; the due diligence of the applicant; balancing the injustice to the applicant against the prejudice to the employer in granting an extension; and the chance of success of the grievance.

70        A grievor is responsible for referring his or her grievance to adjudication in a timely manner. If that is not done, the onus is on the grievor to convince the adjudicator why relief should be granted (see Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92 at para. 46).

71        In this case, there is no clear, cogent, or compelling reason to explain the delay. Neither the union nor the grievor was prevented from referring the grievance to adjudication. Waiting for the final-level grievance response from the employer was not required. The true reason for the failure to refer the matter to adjudication in a timely fashion was the oversight caused by the disorganization of the union local.

72        The Board has established in a line of cases that each of the Schenkman criteria is not of equal importance. Each criterion must undergo a cautious and rigorous assessment against the factual context of each case. A solid reason must be provided for the delay; the union’s disorganization is not one.

73        The Regulations were drafted with the intention of bringing matters to an end (see Copp v. Treasury Board (Department of Foreign Affairs and International Trade), 2013 PSLRB 33; Brassard v. Treasury Board (Department of Public Works and Government Services), 2013 PSLRB 102; Lagacé; and Callegaro v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 110).

74        The mistakes of the union are those of the grievor as the two are not considered separate entities (see Copp, at para. 29). The grievor was not diligent; he relied on the union to refer his grievance to adjudication. The union is a very sophisticated and active organization that knows the rules and time limits for referring a grievance to adjudication. The union knew that it did not have to wait for the final-level response to refer a matter to adjudication if that response was not received in a timely fashion. It is clear that the employer never intended to respond at the final level, so why did the union wait for a response?

75        The employer should not bear the consequences of the union’s failure to represent the grievor effectively. The grievor is also at fault for not pursuing his grievance diligently (see Grouchy, at para. 51; and Lawrence v. Canada Revenue Agency, 2007 PSLRB 65 at para. 44).

76        Since there is no clear, cogent, and compelling reason for the delay, the other Schenkman criteria need not be considered, and the extension of time should not be granted.

2. For the grievor

77        The employer should not rely on its failure to respond at the final level of the grievance process and to comply with the terms of the collective agreement in its objection to the Board’s jurisdiction. In clause 20.14 of the collective agreement, the employer agreed to respond at the final level within an abridged time frame, shorter than the Regulations provide for. That clause states that the employer shall normally reply to the grievance at the final level within 30 days of the grievance being presented at that level. This means that the obligation to reply at this level is mandatory, in the normal course of events. The employer did not identify any exceptional circumstances that would render that clause inapplicable.

78        It cannot be that the intent of s. 90(2) of the Regulations is to allow an employer that does not meet its collective agreement obligations to hold a grievor to a higher standard of meeting his or hers. The grievor acknowledged that his grievance was referred to adjudication approximately 50 days after the time limit to make that referral had expired. Paragraph 61(b) of the Regulations provides relief in such circumstances, when it is in the interests of justice to allow the grievance to proceed (see Schenkman).

79        The grievor’s delay was not inordinately long. It was 50 days, which can be compared to the delays in the case law, which are in excess of 7 months. The delay was caused in part by the union’s disorganization. There are clear, cogent, and compelling reasons to justify the extension of time out of fairness. The grievor exercised due diligence and filed his grievance quickly. The management of his union local advised him that it was in its hands, and he relied on it to pursue his grievance in a timely fashion. The union was waiting for the employer to issue its final-level response. He followed up with his representative many times and was told each time not to worry because grievances take time. It was reasonable for him to trust his union representatives to proceed with the grievance.

80        To determine the chances of success if the grievance were allowed to proceed, the question to ask is whether there is an arguable case, which there most certainly is in this case. There would be a grave injustice to the grievor were he not allowed to contest his termination and to seek reinstatement as this is the only forum in which he can, by legislation. There is no evidence or argument about what prejudice would occur to the employer if this grievance were allowed to proceed.

81        In Trenholm v. Staff of the Non-Public Funds, Canadian Forces, 2005 PSLRB 65, the adjudicator granted an extension of time and determined that 5.5 months was not an inordinate delay even when there was no evidence of a clear, cogent, and compelling reason for it or of any due diligence on the part of the grievor. Despite this, the adjudicator granted the extension of time because there was no other remedy to address the loss of employment status other than through the grievance process.

82        Grievance adjudication is the only timely method through which a bargaining agent has the possibility of persuading an adjudicator to reinstate a grievor. When there is no tangible harm to the employer by the delay but the grievor loses his or her right to present an arguable case for reinstatement, fairness demands that the grievor be given that opportunity (see Prior v. Canada Revenue Agency, 2014 PSLRB 96 at paras. 59, 60, 141, and 144; and International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board, 2013 PSLRB 144 at para. 62).

B. For the grievance

1. For the employer

83        In the event that the extension of time is granted, the grievance should be dismissed. The employer had reason to impose discipline, and the penalty was appropriate, particularly given the employer’s mandate to exercise safe control of inmates in its custody (see the CSC’s mission statement, Exhibit 4). The employer has identified the values and responsibilities of the CSC and its employees, including CXs. They are to carry out their duties in the best possible manner.

84        A CX’s main responsibilities are set out in post orders (Exhibit 2, tab 16) and include the duty to ensure that inmates are safe. This goes directly to the core of the employer’s mandate. CXs are expected to fully and properly discharge their duties at all times. They are held to a very high standard of conduct, given their role in public safety (see Stead v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 87 at para. 67; McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26 at para. 80; and British Columbia v. British Columbia Government Employees’ Union, [1993] B.C.C.A.A.A. No. 44 at para. 27 (QL)).

85        As a CX-01, the grievor was assigned to the overnight shift. After 22:30, he was responsible for conducting his rounds alone. His principal duty was to perform a minimum number of rounds as set out in the post order. If he had any doubt about his duties, the post order was readily available to him on the unit for his reference. His job was to ensure the safety and well-being of the inmates in his care that night. On each round, he was to ensure that each cell contained a live, breathing body.

86        Everyone in the institution relied on the grievor and other CXs to properly discharge their duties. Rounds play a large part in the safety of the inmates, staff, and the entire institution. CXs receive training during their CTP on the proper conduct of rounds, which is reinforced during on-the-job training they receive at the start of their careers. The grievor successfully completed all that training and had been conducting rounds for at least five years at the time of the incident. Rounds are done repetitively on each shift. They are a basic function of a CX’s duties, which is not easily forgotten.

87        On the night at issue, the grievor was assigned to supervise Unit 8. He did not properly complete his rounds as required. He did not look into each and every cell to ensure that each one contained a live, breathing body. This was not a one-time spur-of-the-moment event. The grievor was negligent on all nine rounds he completed that night. He took less than 1 minute for every round; he walked the 50-foot range containing 19 cells in that time. It is impossible that he took the time to look into every cell and assess the state of the inmate in that little time. The grievor is 6 feet 4 inches tall, and given his height, he would have had to bend over to look in each cell door’s window. It is clear in the video that at no time does he stoop to look through the windows. In fact, he does not stop at any cell door.

88        By failing to perform his duties properly, the grievor prevented an early response and intervention that might have prevented the inmate’s death. The grievor was obligated to intervene in a timely fashion, which required that he be vigilant. The inmate’s death was not discovered for at least three hours after his death. Had the grievor taken the time to look into the cell as required, he would have noticed the inmate in medical distress.

89        The cells at the institution are very small, and had the grievor fulfilled his duties as required, he would have seen the inmate suspended above the floor facing the door, suspended from the closet rod. Instead, others were left to deal with the traumatic situation. The grievor knew what he was expected to do and failed to do it. Mr. Emann had serious concerns with what he saw on the video recording of the grievor’s rounds. He concluded that the grievor had been negligent in discharging his primary duty as a CX.

90        In the OSOR that the grievor completed on his return to the institution on the night of February 15, 2014, he claimed to have completed 10 rounds (in fact, he did 9) and to have seen a live, breathing body in cell F7 each time. The video recording does not corroborate this; the grievor never looked into cell F7 that night. The employer’s Code of Discipline clearly states that making a false statement wilfully or through negligence is an infraction. The grievor knew that he had not seen a live, breathing body in cell F7 or in any cell for the matter on each of his rounds that night.

91        The grievor was given the opportunity to view the video recording of his rounds. His only comment was that “they could have been done better”. He did not recognize his negligence then or at the hearing. In his testimony, he did not accept responsibility for his actions. He did not understand the gravity of his negligence, the importance of rounds, and his role as the sole CX on the unit on the overnight shift.

92        Only at the hearing did he raise that he had family issues in February 2014. Never before did he tell his employer or any of his colleagues about the problems or that they might have had an impact on his actions that night. Since this defence was not raised throughout the grievance process, the grievor was precluded from raising it at the hearing (see Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.)).

93        The grievor testified that he was not briefed or warned that night about the inmate in cell F7. What difference would it have made had he been? He would have looked into the cell for a live, breathing body, which is exactly what he was expected to do. Gross negligence by a CX cannot be tolerated. It is offensive to the core of the CSC’s mandate and of the CX position.

94        The grievor is guilty of contravening paragraphs 6(f), (g), (m), and (p) of the employer’s Code of Discipline. He was aware and understood that he was bound by this code; he signed a declaration to that effect. These breaches have destroyed the bond of trust between him and the employer. It cannot trust a CX who does not take proper care of the inmates in his or her control. This trust is fundamental to the employment relationship, particularly when the safety of others is at risk (see McKenzie, at para. 80).

95        The employer considered the mitigating and aggravating factors before concluding that terminating the grievor’s employment was appropriate. He had a discipline-free record and good performance reviews. The March 31, 2014, performance review, issued after the incident, was a good review despite this incident because the reviewing Correctional Manager was not involved in the discipline process. Since the discipline process was confidential, the reviewing Correctional Manager was unaware of the issues surrounding the grievor’s performance on the night of February 14 to 15, 2014.

96        The circumstances and the extent of the grievor’s negligence in performing his duties were aggravating factors. It amounted to gross negligence, not mere negligence. Due to his gross negligence, no life-saving interventions were possible. A death in custody occurred as a result. This negligence was not isolated or inadvertent. The grievor did not do any rounds properly that night. He has no comprehension of the gravity of his negligence.

97        The grievor’s years of service were also an aggravating factor. He knew the employer’s expectations about rounds and the importance of doing them properly. Added to this was the false OSOR he filed, claiming that he had done all the rounds and that on each round, he had seen a live, breathing body in cell F7. It was a deliberate attempt to cover up his negligence. There is no way that he did not know that he failed to do his rounds properly that night.

98        When weighed against the aggravating factors, the mitigating factors do not surpass the gravity of the violation and the loss of the employer’s trust in the grievor. Termination cases are fact driven. The reasonableness of the penalty imposed must be weighed against the facts. In Management and Training Corp. of Canada (c.o.b. Central North Correctional Centre) v. Ontario Public Service Employees Union (2006), 148 L.A.C. (4^th)) 126, gross negligence by officers in the discharge of their duties justified their terminations. Like in Stead, the grievor’s negligence created a situation of an increased risk of injury to inmates. Furthermore, like in Stead, the grievor’s false OSOR increased the seriousness of his misconduct.

99        An adjudicator should intervene in a disciplinary penalty only when it is wrong or unreasonable (see Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119; and Ranu v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 89). The grievor’s termination in this case was not unreasonable or wrong. It reflected the gravity of the failure, which might have prevented saving an inmate’s life.

2. For the grievor

100        The only issue to be determined is the appropriate penalty. The grievor is guilty of one night of careless behaviour, not negligence. How could it have irrevocably destroyed the bond of trust between him and his employer? There was no intentional act to undermine his employer. There was no dishonesty or deceit; there was merely one night of inattentive work while the grievor was suffering from significant family stress. He does not dispute that he did not share his family situation with anyone before the hearing, but that does not mean it was not a factor.

101        The grievor never denied his inadequacy once he was shown the video recording of his rounds. He never blamed anyone else for his failure to conduct the rounds properly. He took full responsibility once he became aware of his failings. How can one night of careless work, which the grievor acknowledged and promised to correct if given a second chance, warrant dismissal? How did this one night irreparably destroy the employment relationship and five years of excellent work?

102        The evidence does not show that the inmate’s death resulted from the grievor’s inaction. The key issue is whether making inadequate rounds justifies dismissal. The focus must be on the culpable mindset and not on the tragedy. The culpable mindset was carelessness, not negligence. Complacency and carelessness are far less culpable than negligence. The grievor did not deny at any stage of this process that his conduct that night was improper. In his opinion, the employment relationship is still viable.

103        The grievor’s performance reviews do not indicate that there was an ongoing problem with the quality of his rounds. There is no evidence that he ought to have been present when the hanging occurred, so the employer has not made out the elements required for a violation of professional standard 6(p), which is a failure to take action when an offender engages in any action likely to endanger life or property. If the employer’s intent was to rely on the grievor’s failure to discover the inmate, then it had to lead evidence on it.

104        Dr. Van Wyk did not give expert evidence of the inmate’s time of death. For full rigor mortis to have set in, the inmate must have been dead for 8 to 10 hours, and CPR would not have been possible. The evidence of the CX who discovered the inmate was that CPR was performed after the inmate was moved from a sitting to a lying position. Only one OSOR mentions rigidity. Therefore, it is likely that the grievor would never have seen the inmate. The employer did not satisfy its burden of proving that the inmate took his life before the grievor’s last round.

105        In normal circumstances, this should have been a teaching moment. It was escalated to the level it was only because of the death in custody and the employer’s sensitivity to such events because of recent events. The grievor admitted that he was complacent with respect to the institution’s routine and with simple duties. The evidence is clear that he was not deceitful or dishonest in his OSOR. When he saw the video recording, he acknowledged that his rounds had been done terribly wrong. He was upset by what he saw, and his actions and words were consistent with someone who had done a poor job. His wife’s medical situation was a contributing factor to his complacency and should be considered a mitigating factor. When a grievor’s misconduct was triggered or in some way affected by domestic problems, arbitrators and adjudicators have modified the discipline imposed (see Brown and Beatty, Canadian Labour Arbitration, 4th edition, at para. 7:4424).

106        The employer did not establish that an irrevocable breach of trust occurred. The grievor made no deliberate act to undermine the employer. Complacency does not establish such a breach. His performance reviews suggest that the relationship is tenable. The employer’s description of the trust relationship must be taken with a grain of salt. It intended to terminate the grievor before he was even spoken to as is clear from the notice of the disciplinary hearing (Exhibit 2, tab 10) and the minutes of that meeting (Exhibit 19, tab 2).

107        The culpable mindset of the grievor in Matthews v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 38, was far worse than that of this grievor. Unlike Mr. Matthews, Mr. Yayé did not intend to deliberately undermine the employer. The evidence must be weighed in its totality to determine if the employment relationship was destroyed.

108        Other cases involving far worse conduct by CXs have not warranted terminations. In Buchanan v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 91, a correctional supervisor received a 20-day suspension for negligently performing his duties on a segregation unit. In Bridgen v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 92, correctional staff did not follow the employer’s policies on medical emergencies. Pursuant to a correctional manager’s order, the CXs on duty were slow to respond when an inmate committed suicide. The correctional manager’s directions contributed to confusion among the CXs on how to address medical emergencies with an inmate. Ms. Bridgen received a 20-day suspension, which was reduced to 10 days because she was not the only manager giving directions to the CXs that violated policy. Of note in that case is that Ms. Bridgen never acknowledged any wrongdoing on her part. In Maas v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 123, the CXs received two-day suspensions, which were reduced to one day for failing to apply CPR to a dead inmate, which breached several employer policies.

109        This case is about whether a CX with 5.5 years of good performance could be terminated for 1 night of careless work. He acknowledged his failings and accepted responsibility for the inadequacy of his rounds. He is committed to addressing issues with his rounds if given a second chance. The jurisprudence and the facts do not establish that his inadequate rounds constituted an irrevocable breach of trust that warranted termination.

IV. Reasons

A. For the extension of time

110        There is a plethora of jurisprudence on whether an adjudicator should exercise his or her discretion to extend the time limits to refer a grievance to adjudication under s. 61 of the Regulations. Section 90 states that a grievance may be referred to adjudication no later than 40 days after the day on which the person who presented the grievance received a decision at the final level of the grievance process. If no such decision is received, then the referral must be made within 40 days of the expiry of the period for a final-level response.

111        In clause 20.14 of the collective agreement, the employer bound itself to respond to grievances filed at the final level within 30 days of receiving the grievance at that level. This employer refused to abide by that obligation and sought at the hearing to rely on its breach to argue that the Board is without jurisdiction because the grievor did not refer his grievance to adjudication within the time limits prescribed by the Regulations. In fact, counsel for the employer stated in argument that the employer at no time intended to respond to the grievance at the final level. If it had no intention of abiding by its obligations to respond, then what is the relevance of the clause?

112        That clause does have a purpose, which is to give an employee the benefit of the employer reconsidering its decision before a matter is referred to a third-party decision maker to review. The union explained to me that it was waiting for that reconsideration before referring the matter to adjudication.

113        It was also explained to me that the union local at the institution was in disarray and that it had been for some time, and that those who were left after the president’s death and the elections and resignations that followed it had to pick up the pieces. They were inexperienced with the grievance process as few were filed at the institution.

114        In my opinion, it was reasonable for the union to rely on the employer to fulfill its obligations under the collective agreement. In my opinion, it was not reasonable for the employer to rely on its disrespect of the collective agreement and the union’s reliance on the collective agreement to create a bar to a referral to adjudication. Allowing such a contrivance would not be in the interests of justice, particularly since the grievor would have no remedy elsewhere that would provide him with the possibility of reinstatement to his position.

115        The grievor established a clear, cogent, and compelling reason for the delay referring the matter to adjudication. He communicated with his union representatives and was assured that things took time and that he should not worry. The delay was minimal and caused no prejudice to the employer’s case. The greatest prejudice is to the grievor, who has an arguable case for reinstatement. That does not mean that it is a case for which success is guaranteed but rather that it should be considered.

116        Like the adjudicator in Trenholm, I put more weight on the prejudice to the grievor than on the other Schenkman factors given that this is a termination case. There is no alternative remedy against the union for a failure to represent that offers the grievor the opportunity to be reinstated to his position. Adjudication is the only opportunity the union will have, particularly since the employer refused to issue a final-level response, of convincing someone that the discipline imposed on the grievor was inappropriate. It is not only in the grievor’s best interests to deal with this matter on the merits, but it is also in the employer’s best interests to show that its actions were proper and just in the circumstances.

117        For these reasons, I grant the extension of time and seize jurisdiction of this matter, so that it may be considered on the merits.

B. For the grievance

118        I have taken into consideration all of the factors and arguments put to me by the parties in support of their stand on the question of the discipline imposed. The employer has cited Cooper in support of their argument that the adjudicator should not interfere with the disciplinary penalty imposed unless it is unreasonable or wrong (Cooper at para 13).  In other decisions it is stated that the penalty should only be overturned if it is excessive (Iammarrone v. Canada Revenue Agency, 2016 PSLREB 20 and Rahim v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 121). Still in others the adjudicator determined that it should not be overturned if it was justified (McNulty v. Canada Revenue Agency, 2016 PSLREB 105).

119        Essentially in my opinion these cases all stand for the same principle that any disciplinary penalty imposed by the employer against an employee must be warranted in the circumstances, must take into consideration all of the aggravating and mitigating factors, and must be reasonable. A reasonable penalty is not excessive. In light of the evidence before me, I find that the termination of the grievor’s employment was not excessive and was reasonable in the circumstances.

120        The grievor admitted that he was inattentive to his duties as a CX on the night shift of February 14 to 15, 2014. He admitted that his rounds were not what are expected of a CX. His counsel pointed to that admission as the grievor’s acknowledgement that he has done wrong and stated that he deserved much less discipline than the employer imposed. The grievor’s counsel also argued that stress related to the grievor’s home situation caused the inattentiveness to duty that he demonstrated that night and that inattentiveness is not egregious enough to constitute negligence.

121        I do not accept any of these arguments. What I saw on the video recording of the rounds clearly demonstrated to me that the grievor had no interest in properly conducting his rounds that night. He did not stop at any cell door long enough to look in to determine if the occupant was safe or whether the occupant was engaged in some sort of activity that was a threat to his safety or to that of the institution. It is my finding that the grievor knew what was expected of him when conducting his rounds that night and that he made no effort to meet these expectations.

122        This utter disregard for the importance of properly conducting rounds in a correctional institution was gross negligence and warranted a severe penalty. Whether or not the inmate could have survived his suicide attempt will never be known because the grievor’s negligence prevented any intervention. I accept Dr. Van Wyk’s evidence that the time of the inmate’s death, based on the condition of the body at the time it was found, was most likely three hours before the end of the grievor’s shift, which means that on at least two of the rounds he conducted, on which he certified that all the inmates for whom he was responsible were alive and breathing, there was a dead inmate in one of the cells who went undiscovered.

123        In his evidence, the grievor testified that when he reviewed the video recordings of his rounds that night, he saw himself looking intently into some cells and briefly into others. He admitted that it was possible that he missed some cells that night but that it was inaccurate to say that he did not look into the vast majority of them. It was possible that he did not look into cell F7 according to the grievor, but according to his evidence, it is not accurate to say that he did not look into the other cells. He challenged the employer’s conclusion that he had not looked into cell F7. Clearly, the grievor questions whether he looked into that cell.

124        According to the grievor, the video recording of his rounds was of poor quality and was not clear, so it was impossible to see if he missed a cell. I disagree. The recording was grainy but it clearly showed him walking to the end of the range and returning without once stopping to look in a cell door window. Given that the grievor testified that he is 6 feet 4 inches tall and that the window in the cell door is approximately 5 feet above floor level, to look into the window and see inside the cell, he would have to stoop. At no time on the recording is he seen doing that. Walking the length of the range swinging his flashlight from side to side accomplished nothing more than lighting the floor in front of him. The grievor not only failed to conduct his rounds properly; I believe that he also failed that night to conduct them at all. Any OSOR that purported to say otherwise was knowingly false.

125        The grievor testified that at the disciplinary hearing, he acknowledged not having spent enough time doing the rounds on the night at issue. He testified that he told the employer that he was very disappointed in the quality of his rounds because he held himself to a higher standard. The grievor did not know how he missed the inmate hanging in his cell but admitted it was possible that he did. The grievor testified that he felt sympathy and compassion because an inmate died but that he did not feel responsible for the inmate’s death. No one could say that had the rounds been properly done, it would have prevented the inmate’s death. He told the Warden that if he were given a second chance, it would never happen again.

126        The grievor repeated that to me as an expression of remorse. Remorse is a deep regret or guilt for a wrong committed. It requires that a person understand the nature of the wrong and its impact on others. What the grievor expressed did not contain any element of self-awareness or insight. It sounded rather like a pro forma statement known to be required for reinstatement. Likewise, his description of his wife’s medical situation was primarily a description of how it would have impacted impact his ability to report to work rather than a concern for her health.

127        In my assessment, the grievor has not demonstrated a true understanding of the potential consequences of his actions and would no doubt resort to these behaviours in the future, which would put the institution, the inmates, and his fellow coworkers at risk.

128        The employer has established on the balance of probabilities that the grievor violated CD 566-4: Inmate Counts and Security Patrols and CD 060: Code of Discipline. In particular, he violated the following parts of the second directive, paragraphs 6(f), failure to take action or otherwise neglecting his duty as a peace officer; 6(g), failing to conform to or apply a commissioner’s directive, standing order, or other directive as it related to his duties; 6(j), wilfully or through negligence making or signing a false statement in relation to the performance of his duties; 6(m), performing his duties in a careless fashion so as to risk or cause bodily harm or death to any other employee or other person directly or indirectly; and 6(p), neglecting to take appropriate action when an offender engaged in an action likely to endanger life or property.

129        Despite training in the proper methods of conducting rounds in the initial CTP provided to CXs, which was reinforced through on-the-job training and rounds reviews, the grievor chose to conduct his rounds in such a way as to provide an inmate the opportunity to commit suicide. The employer is justified in its concern about the grievor repeating this behaviour should he continue to be employed with the CSC.

130        CXs, particularly those who work alone on a unit overnight, must be held to higher standards (see McKenzie and Stead). When it comes to the safety of the inmates and the institution, there is no margin of error. CXs are trained to carry out their duties and to ensure the safety of those in their care, which the grievor failed to demonstrate in the conduct of his rounds that night.

131        Counsel for the grievor argued that 5.5 years of service cannot be destroyed by a momentary lapse in judgement. Unlike the situation in Matthews, no one representing the employer was of the opinion that this employment relationship could be saved. Other risks must be considered when determining the appropriateness of returning a CX to an institution following a disciplinary investigation. Liability and lack of trust are also factors. When trust in the CX has been destroyed and is not capable of restoration, regardless of the existence of mitigating circumstances, the employment relationship must end (see Wedell, at para. 28). Consequently, I do not believe that the employer was unreasonable or wrong in its determination that termination was appropriate in the circumstances.

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

V. Order

133        The application for an extension of time is granted.

134        The grievance is dismissed.

May 9, 2017.