Date:  20190717

File:  566-02-14376

 Citation:  2019 FPSLREB 75

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

William Dekort

Grievor

and

DEPUTY HEAD

(Correctional Service of Canada)

Respondent

Indexed as

Dekort v. Deputy Head (Correctional Service of Canada)

In the matter of an individual grievance referred to adjudication

Before:  David Orfald, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor:  Corinne Blanchette, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN

For the Respondent:  Julie Chung, counsel

Heard at Abbotsford, British Columbia,

June 4 to 7, 2019.

REASONS FOR DECISION

I. Introduction

[1]   William Dekort was a correctional officer at Mission Medium Security Institution (“Mission Medium”) in British Columbia from April 2008 until his employment was terminated in May of 2017 for misconduct.

[2]  On the morning of February 24, 2017, Mr. Dekort accepted an overtime shift starting at 7:00 a.m. and was assigned to a mobile patrol post. This job involves patrolling the outside perimeter of the institution in a vehicle. The post is described as the “last line of defence” in the case of an escape and the “first line of defence” in the case of an intrusion into the institution. As such, it is an essential component of a strategy to prevent contraband from entering the institution via different types of “throw-overs” and, increasingly, via the use of drones. The mobile patrol officer is armed.

[3]  At approximately 8:30 a.m. that morning, three correctional managers found Mr. Dekort in his parked mobile. He was in a reclined position with his head back, his boots off, and his protective vest removed. One of the managers knocked on the window to get his attention. To the correctional managers (“the CMs”), Mr. Dekort appeared disoriented, dazed, and confused. They concluded that he had fallen asleep.

[4]  Following a disciplinary meeting, but without an investigation, Acting Warden Brooke Kassen made the decision to terminate Mr. Dekort’s employment.

[5]  The parties agreed that the adjudicator’s role in a case like this must follow the analysis set out in William Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 Canadian LRBR 1 (“Wm. Scott”), and Basra v. Canada (Attorney General), 2010 FCA 24. This test requires that I answer these three questions:

1. Has the employee given reasonable cause for some sort of discipline by the employer (i.e., was there misconduct by the employee)?
2. If so, was the discipline the employer imposed an excessive penalty in the circumstances?
3. If it was excessive, what alternate measure should be substituted that is just and equitable in the circumstances?

[6]  There is no doubt in this case that misconduct deserving of discipline took place. The grievor does not dispute it. He neglected his duty as a peace officer and failed to follow a number of directives and orders. Furthermore, he did not do so inadvertently. By removing his boots and his protective vest, he demonstrated his intent.

[7]  The key question in this case is whether Mr. Dekort’s misconduct was so egregious as to justify the termination of his employment, taking into account all the aggravating and mitigating circumstances.

[8]  While I find that Mr. Dekort’s misconduct was extremely serious and deserving of a severe penalty, I conclude that his termination was not justified. I find that the employer reached a quick assessment that he had fallen asleep for an extended period and that it did not waver in that conclusion despite evidence to the contrary. I also find that it did not fully and accurately weigh the aggravating and mitigating factors that it should have. In addition to other process problems, it gave some consideration to previous discipline that should no longer have been on Mr. Dekort’s record.

[9]  In its decision to terminate the grievor’s employment, the employer also concluded that he failed to acknowledge the seriousness of his actions and that he did not show remorse for his misconduct. I disagree. The evidence from conversations that took place before the termination demonstrates otherwise. His statements immediately following the termination and his testimony at the hearing were those of someone who clearly acknowledged his errors on that morning and who is ready to prove that he could learn from his mistake.

[10]  I absolutely agree with the employer that correctional officers must be held to a higher standard of conduct and that the penalty imposed for that conduct must send a strong message of deterrence. As such, a severe penalty is required in place of the termination.

[11]  For that reason and those that follow, I replace the termination with a suspension without pay that runs from the date of the termination to the date of this decision.

II. Background and preliminary matters

[12]  Mr. Dekort’s employment was terminated on May 4, 2017, via a letter that was read and provided to him at a meeting held that day. He filed a grievance that same day, which, as filed, sought full reinstatement. However, at the hearing, he proposed that the termination be replaced with a lengthy suspension without pay of between 12 and 24 months.

[13]  The grievance was referred to adjudication on July 14, 2017.

[14]  I will note up front that the employer did not respond to Mr. Dekort’s grievance at the final level before the referral to adjudication. The Board directed the employer to file a final-level reply to the grievance during the pre-hearing phase. It was dated May 10, 2019, and it reiterated the reasons for the termination in the original letter.

[15]  Throughout the disciplinary process and at the hearing, the grievor was represented by his bargaining agent, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada – CSN (“UCCO” or “the union”).

[16]  In the pre-hearing stage, the Board ruled on several requests for the production of documents. For some of the documents requested, the employer claimed labour-relations privilege. It explained that they were emails providing labour-relations input into drafting the briefing note on the discipline to be administered and into drafting the termination letter. On that basis, I was satisfied that the requested documents were subject to labour-relations privilege. The grievor’s representative did not argue the issue further at the hearing. I do not find it necessary to provide more detailed reasons in this decision.

[17]  Some of the documents submitted as evidence contained the names of third parties, including staff not involved in the incidents, along with inmates. The employer requested a sealing order and a confidentiality order on those exhibits. However, the parties cooperated in redacting all that information from the exhibits, and on that basis, the employer withdrew its request.

[18]  The employer called these four witnesses to testify:

• Dal Sagoo and Aaron Fitzgerald, both correctional managers at Mission Medium, who witnessed Mr. Dekort in his vehicle while on the mobile patrol.
• Roger Sehra was for many years responsible for the 13-week Correctional Training Program (CTP) that takes place before CX recruits are first posted and is currently the acting assistant warden of operations at a minimum security facility.
• Brooke Kassen was the acting warden of Mission Medium at the time of the events at issue and is currently the warden at Fraser Valley Institution.

[19]  The grievor’s representative requested the exclusion of witnesses before they testified, which I granted. This became an issue during the hearing when the employer asked to recall Mr. Sagoo for a second time. The grievor objected because Mr. Sagoo had observed part of the testimonies of Mr. Fitzgerald and Mr. Kassen. I allowed the recall and said that I would take his presence during the hearing into account when assessing the weight to place on the additional testimony.

[20]  The employer tabled an exhibit book with 46 tabs plus 3 additional exhibits. Included in its exhibits are two CDs, one with a video recording of the mobile patrol, and the other with some audio recordings of radio communications.

[21]  Only the grievor testified on his behalf.

[22]  The grievor tabled an exhibit book with 15 tabs plus 5 additional exhibits. Included in his exhibits are duplicate copies of the video and audio recordings supplied by the employer, along with a CD of audio recordings of the disciplinary meetings held with him.

III. Summary of the evidence

[23]  I will start by providing a brief summary of the evidence in three parts, from before, on, and after February 24, 2017.

A. Background to the events of February 24, 2017

[24]  Mr. Dekort began his career with the Correctional Service of Canada (CSC or “the Service”) in April 2008. He underwent the standard 13-week CTP. He was then appointed to Mission Medium as a CX-1, where he also received on-the-job training. The training he received is important to the story because it demonstrates that he knew the CSC’s expectations of him.

[25]  The CTP is designed to ensure that correctional officers understand the roles, responsibilities, rules, and procedures involved in carrying out their duties. Mr. Sehra testified at length about the CTP, demonstrating how its different modules ensure that recruits understand their role as peace officers under the Criminal Code (R.S.C., 1985, c. C-46). It includes use-of-force training and certification in caring for, maintaining, and storing firearms. It includes modules on perimeter security, including the role of mobile patrols and the concept of “dynamic security”. It includes training on the CSC’s Code of Discipline as well as its Standards of Professional Conduct.

[26]  Mr. Dekort acknowledged receiving all aspects of the CTP and receiving and signing for those two policies.

[27]  The CTP is followed by on-the-job training at the institution to which the new recruit is assigned. The purpose of that training is to ensure that new recruits can apply the CTP’s training in the workplace as well as learn in detail the procedures of the institutions to which they are assigned.

[28]  Mission Medium is co-located with the Mission Minimum Security Institution (“Mission Minimum”) on a tract of land to the east of Mission, B.C, on the north side of the Fraser River.

[29]  Mission Medium is laid out in a large square surrounded by double perimeter fences approximately 12 feet high that are topped by razor or barbed wire. Inside the fence are 6 residential units, an administration building containing the kitchen and dining facilities, an exercise yard, and a large number of other buildings. Access is controlled through a sally-port gate system on the west fence.

[30]  Around the outside of the fence system is a perimeter road used by the mobile patrols. Security towers are placed at each of the four corners. Several security cameras are placed around the perimeter, as well as thermal energy cameras.

[31]  The grounds outside the perimeter road vary. To the west is a parking lot, to the south is some open area and Mission Minimum, and to the east and north are what was described as a mixture of scrubland and treed lands that extend out to public roads. While the public is not supposed to trespass on those lands, they can gain access and approach the institution, which leads to the role of the mobile patrol.

[32]  The mobile patrol officer’s role is to patrol the perimeter road in a vehicle. As noted earlier, the post is described as the last line of defence in the case of an escape. However, this does not appear to be its main function, given that the fence system is alarmed. More significantly, it is the first line of defence in the case of an intrusion into the institution by outsiders or things, in particular when someone approaches the fence to throw-over contraband. A third essential role is to keep an eye on inmate activity inside the fence. As such, the mobile patrol provides backup security to correctional officers assigned to inside posts.

[33]  Watching what is happening inside the fence is particularly important during the mass movement of inmates from their residences to the dining hall or from the dining hall to daily activities and when inmates are engaged in outside activities.

[34]  The officer in the vehicle is equipped with a radio for communication and is armed with both a rifle and a handgun.

[35]  There were some discrepancies in the testimonies of several witnesses with respect to the normal expected movement of the mobile patrol around the perimeter. I will return to this subject later in this decision when analyzing the extent to which Mr. Dekort failed to properly carry out his duties.

[36]  Undisputed is that the role is part of a dynamic security strategy that involves being on the lookout for problems, and in the case of the mobile unit, being regularly on the move. This strategy involves varying positions and routines, to not be predictable to inmates.

[37]  One additional piece of background is required at this stage, which is that in the months leading up to the events in question, Mission Medium experienced increased problems with contraband coming inside. Examples included illegal drugs, tobacco, cell phones, and weapons. Each form of contraband poses security risks for inmates as well as staff. One way of getting contraband into the prison is via throw-overs — i.e., physically throwing material over the perimeter fence or launching it over using techniques such as a tennis racket and ball or a “potato gun”.

[38]  However, the advent of drone technology posed a new challenge for the CSC, particularly at the Mission institutions, where the topography of the surrounding area (particularly the treed lands to the north and east) facilitates using drones as a means of dropping contraband inside the perimeter fence or onto the roofs of buildings.

[39]  Mobile patrols are an important part of the strategy for keeping contraband out of the institution, including via drones. In addition to watching out for anyone approaching the fence for a throw-over or for drones flying over, they are supposed to watch out for inmates going out into the yard to retrieve contraband, particularly when they are not supposed to be in the yard.

[40]  In 2017, the use of drones to deliver contraband into Mission Medium had been a regular subject of the briefings that the correctional officers received at the start of each shift. The meetings are supplemented by a written briefing note made available each morning summarizing key events from the previous day, including significant events, such as drone sightings. The officers receive the briefings only if they report for a shift, but the briefing notes are accessible electronically. As part of their duties, officers are expected to read them and to share information about briefings with each other.

[41]  There were some discrepancies in the testimony about the scope of the drone problem, to which I will return later. Nevertheless, I accept that drone activity was a serious problem affecting Mission Medium, and that management regularly communicated about that problem to correctional officers and directed staff to increase their vigilance. Mr. Dekort would have been aware of this when he reported to work on February 24.

B. The events of February 24, 2017

[42]  Mr. Dekort received a call at 5 a.m. on the morning of February 24, 2017, asking if he wanted to work overtime that day. He had not worked the previous two days, and he knew that he could have turned the shift down. However, he accepted it and reported to work.

[43]  Like other correctional officers at the CX-1 level, Mr. Dekort could be assigned to different posts during his 12.75-hour shifts. That morning, he was given the patrol assignment called “Mobile 1”, one of two such patrol units on the day shift. The other one is called “Mobile 2”.

[44]  As noted, one of the roles given to mobile patrol officers is to view inmates during times of mass movement. Mr. Kassen testified that in the morning, one occurs from approximately 7:25 a.m. to 8:05 a.m. as inmates leave their residences for breakfast. A second one is at 8:30 a.m. for approximately 10 minutes as they report to school or work within the institution.

[45]  As demonstrated through testimony and the video footage, at 7:16 a.m., the Mobile 1 vehicle drives along the perimeter road and comes to a stop near Tower 3, at the northeast corner of the institution. The vehicle remains running but does not move until at least 8:34 a.m., which is when the video stops running. The vehicle is facing west. If Mr. Dekort was looking into the institution, he would have had a view of the exercise yards and the rear of the living units and the segregation unit. If looking away from the institution, he would have had a view of the vacant lands to the north of the institution.

[46]  At 8:18 a.m., the Main Communications and Control Post (MCCP) made a radio call informing the mobiles that three correctional staff would walk the perimeter. Both mobiles responded. Mobile 1 responded, “Mobile 1 copy”, and Mobile 2 responded, “2 copies”.

[47]  Less than one minute later, a second call was made, informing the mobiles that the three staff would be correctional managers. Neither mobile responded.

[48]  The three CMs who did the walkabout were Mr. Sagoo, Mr. Fitzgerald, and Brad Anderson. Mr. Sagoo and Mr. Fitzgerald both testified that there had been reports of a drug drop the night before. The purpose of their walk around the perimeter was to see if any packages or materials were outside the fences. They exited the main gate and proceeded in a counterclockwise direction around the perimeter.

[49]  Just past Tower 3, they found Mobile 1 parked. This location was slightly over halfway around their perimeter tour, and Mr. Sagoo testified that the walk took about 10 minutes. All three officers reported the incident as occurring at 8:30 a.m.

[50]  As they approached the parked vehicle, the officers observed Mr. Dekort lying back in a reclined position, with his mouth open and head tipped back. They waited a short time before Mr. Sagoo knocked on the driver’s-side window. Mr. Anderson was beside Mr. Sagoo. Mr. Fitzgerald continued to explore the road for contraband.

[51]  The exact amount of time Mr. Sagoo waited before knocking on the window is the subject of some conflicting testimony. He testified that he waited 30 seconds to 1 minute before knocking, but his written report of the incident states that he “... tapped on the glass, after a few seconds of processing the situation ...”. Mr. Anderson’s written report states that he and Mr. Sagoo stood outside the mobile for approximately 15 seconds before knocking.

[52]  What is clear is that the knock on the window startled Mr. Dekort. Mr. Sagoo testified that Mr. Dekort appeared to have just woken up. He based this testimony on the position the grievor was in, his unawareness of the CMs standing outside his vehicle, their need to knock on the window to get his attention, and his watery eyes and appearance of being disoriented.

[53]  Once they had his attention, it became clear to both Mr. Sagoo and Mr. Anderson that Mr. Dekort was not wearing his boots or his protective vest.

[54]  Mr. Dekort testified that he did not believe he had fallen asleep, but he admitted that he was lying back in his seat and that he had removed his boots and protective vest. He claimed that he was listening to a sports radio show. He admitted being startled and being aware that he was in a very compromising situation, and he recalled Mr. Sagoo saying in a loud voice, “What are you doing?”

[55]  Mr. Fitzgerald testified that he also saw Mr. Dekort in a reclined position but that he was not directly involved in the discussion at the window. His view of Mr. Dekort was from a greater distance and through the rear passenger window, which he acknowledged was tinted.

[56]  In his written report, Mr. Anderson stated that after the knock on the window, Mr. Dekort stated that he “must have ... drifted off.” Mr. Dekort testified that he did not say that.

[57]  For the record, Mr. Anderson did not testify and so could not be cross-examined on the content of his report. I do not place a lot of weight on this, although it does make it harder to assess the discrepancies in the reports as to how long Mr. Sagoo waited before knocking and between Mr. Anderson’s report and Mr. Dekort’s testimony.

[58]  However, far more problematic in assessing the discrepancies in the testimony is the fact that the video footage of the incident ends at 8:34 a.m. and that at no time do the three CMs enter the video. I will return to this point during the analysis portion of this decision.

[59]  Following the discussion at the vehicle, Mr. Sagoo told Mr. Dekort that he was being relieved of his post for the day and that he was being sent inside.

[60]  Once back inside, Mr. Sagoo held an initial meeting about the incident with Mr. Dekort, in the presence of a union representative, to discuss what had taken place, the importance of the armed mobile patrol to the institution’s security, and the gravity of Mr. Dekort’s misconduct. Mr. Dekort described the meeting as a lecture on his behaviour and decisions and that his state of mind was one of knowing that he had made a big mistake and of having to accept the lecture and the punishment that would come. This discussion appears to have taken approximately 20 minutes.

C. Follow-up to the events of February 24, 2017

[61]  When I referred to the CMs’ written reports earlier, I referenced their “Officer Statement/Observation” (OSOR) reports. These reports are used to record a wide range of security-related incidents. The Commissioner’s Directive - Recording and Reporting of Security Incidents directs that such reports are to be completed on the same day as the event. It also states that when a report cannot be filed on the same day, it should be discussed with a senior officer, and the report should state why it was filed late.

[62]  All three managers completed their OSORs on the morning of March 1, 2017, which was the Wednesday following the February 24 incident. The grievor’s representative questioned the employer’s witnesses at length about why the reports were filed late, why none of the three reports explains why they were filed late, and whether there were any consequences for filing them late. None of the employer’s witnesses could fully explain why the reports were filed late or why the reports did not explain why they were filed late. That being said, although the Commissioner’s directive was not followed in the filing of the three reports, the fact is that they were, in effect, filed only about two business days late. I do not view this delay as significant and place little weight on it.

[63]  Between February 27 and March 9, Mr. Dekort was assigned correctional officer duties but not mobile patrols. He was given two shifts at the principal entrance and some shifts as a multifunction officer in the yard. He engaged in two regularly scheduled firearms training sessions, one on handguns, and one on rifles.

[64]  On March 9, Acting Warden Kassen convened a disciplinary meeting with Mr. Dekort and his union representative that lasted precisely 10 minutes. Mr. Kassen outlined the scope of the misconduct and asked Mr. Dekort to explain his actions. This meeting will be analyzed in more detail later in this decision.

[65]  On March 10, Mr. Dekort was informed that pending a decision on his discipline, he was being removed from his correctional officer duties and that effective March 17, he was to report for an eight-hour day shift at Mission Minimum in a non-uniform capacity.

[66]  Mr. Dekort worked at Mission Minimum for a little under seven weeks. He was called to the disciplinary decision meeting on May 4, 2017, at which he learned that his employment was being terminated.

IV. Issue 1 - Did Mr. Dekort engage in misconduct warranting discipline?

[67]  The answer to this is a clear “yes”. However, the question still needs to be answered in some detail because understanding the nature of the misconduct is also essential to answering the second issue that arises in this case, which is whether the termination was warranted. When assessing the details of the misconduct, a number of questions of fact must be weighed.

[68]  The analysis must start with the misconduct as described in the termination letter, which Mr. Kassen signed. It states that Mr. Dekort abandoned an armed post, failed to wear approved and authorized security equipment, slept while on duty, and disregarded established safety practices. As such, the employer concluded that he had contravened the Commissioner’s Code of Discipline and Standards of Professional Conduct, specifically as follows:

...

Standard One Responsible Discharge of Duties

• Fails to take action or otherwise neglects his/her duties as a peace officer;

• Fails to confirm to, or to apply, any relevant legislation, Commissioner’s Directive, Standing Order, or other directive as it relates to his/her duty; and

Standard Two Conduct and Appearance

• Acts, while on or off duty, in a manner likely to discredit the Service.

...

[69]  The letter goes on to explain that by his actions, Mr. Dekort failed to maintain adequate supervision of his security equipment, including his loaded firearm. He was responsible for an armed post in an open perimeter environment that is accessible to inmates from Mission Minimum. His actions “... essentially resulted in [him] abandoning the armed post and putting the safety of the offender and staff population and the public at risk as a result of [his] negligence.”

[70]  The letter states that Mr. Kassen reached his conclusions after carefully considering information from the three CMs, the video evidence of the vehicle “... remaining stationary for approximately an hour and a half ...”, and Mr. Dekort’s presentation during the disciplinary hearing.

[71]  Significantly, the letter also tells Mr. Dekort the following: “You did not take any responsibility or accountability for your actions, nor did you understand the seriousness of your actions.”

[72]  The theory behind the employer’s decision to terminate the grievor and its arguments at the hearing are as follows. Mr. Dekort intended to fall asleep and did so for a considerable period of time. His actions violated his responsibilities as a peace officer. He never owned up to the truth. His actions, plus the subsequent dishonesty, mean that he broke the bond of trust that the employer places in correctional officers, who must be able to perform their duties in accordance with its rules, regulations, and policies with a minimum of supervision.

[73]  If one focuses only on the information that Mr. Kassen had on hand when he walked into the March 9, 2017, disciplinary meeting, this theory, and the decision to terminate the grievor, would have been reasonable.

[74]  In front of him at that meeting were the three CMs’ reports stating that Mr. Dekort had fallen asleep, along with evidence that doing so had been his intent (by removing his boots and vest). In addition to the three OSORs, Mr. Kassen had an additional email from Mr. Sagoo, initially sent on March 1 and then forwarded on March 8, the day before the meeting. That email explains that Mr. Sagoo had secured the video footage and that the mobile “... arrived near tower 3 at approximately 0715 and parked. The mobile did not move up until the time we approached and witnessed him sleeping.” The email also stated as a fact that the “MCCP radioed mobiles to advise 3 staff are walking on perimeter. Then another radio transmission to clarity [sic], it is 3 CMs walking the perimeter. No response from either mobiles [sic].”

[75]  Based on the facts before him, it was entirely appropriate for Mr. Kassen to conclude as he walked into the March 9 meeting that Mr. Dekort had been sleeping and that he had been stationary and unresponsive for more than an hour. Therefore, it would have been reasonable for him to view all of Mr. Dekort’s statements at that meeting as a failure to accept responsibility.

[76]  At the start of the March 9 meeting, Mr. Kassen did not know that in fact Mr. Dekort did respond to the first of the MCCP radio calls that took place between 8:18 and 8:19 a.m. After Mr. Dekort said that he had responded to a call, Mr. Kassen promised to review the audio communications after the meeting.

[77]  However, the evidence shows the audio calls were not reviewed before the preparation of the labour relations briefing note dated March 21, 2017, which contained a disciplinary recommendation for Mr. Kassen and the Director General of Labour Relations. That briefing note contains the following statement of fact: “Of note, prior to the disciplinary hearing, it was also apparent that during the time in question, CX Dekort had failed to respond to a radio transmission regarding the three Correctional Managers who were walking the perimeter.”

[78]  In cross-examination, Mr. Kassen reported that he did review the calls, and he agreed that Mr. Dekort responded to one call and not the other one. He then acknowledged that the briefing note is partially incorrect. When he was asked how long he thought Mr. Dekort was sleeping, Mr. Kassen testified, “The car does not move for an hour and 15 minutes,” but that he “cannot determine how long he [the grievor] was awake and how long he slept for.”

[79]  I believe that the employer’s view of the misconduct was well formed before the March 9 meeting. Because of this, it did not and perhaps could not hear any of his statements at the meeting as accepting responsibility and expressing remorse. Nothing in the briefing note suggests that a serious consideration was made of the full facts, particularly the radio calls. The note also does not report Mr. Dekort’s statements of regret at the March 9 meeting. These errors are compounded by procedural problems with the decision-making process, in particular the lack of a more fulsome investigation and further discussions between Mr. Dekort and the employer.

[80]  The coming sections will explore these matters more closely.

A. To what extent did the grievor abandon his post?

[81]  I will start with a more detailed analysis of the events on the morning of February 24 and include a critical assessment of Mr. Dekort’s account of the day’s events.

[82]  At the March 9 disciplinary meeting, Mr. Dekort denied falling asleep. He admitted to removing his boots and vest and to reclining in his seat. He stated that he was listening to a sports radio show. He denied being startled when Mr. Sagoo knocked on the window and explained that his reaction was one of being “guilt ridden” and that when he looked at the CMs, he thought, “Oh my God; what am I doing?”

[83]  In his testimony before the Board, Mr. Dekort further explained that he had been suffering from a sore back and that he had wanted to stretch out. He acknowledged closing his eyes. He repeated his testimony about listening to the radio, explaining that it was a sports radio talk show, not music. He denied stating that he “must have ... drifted off” as reported in Mr. Anderson’s OSOR. He explained that his eyes were watery due to allergies. He acknowledged that he did not report any health problems when reporting for duty and that he should have done so if he was not able to fully perform his duties.

[84]  With respect to the MCCO radio call, he stated at the March 9 meeting that he did respond to a call. This is clearly borne out by the audio evidence, which shows that radio transmissions were made to the mobiles at 8:18 a.m., which they acknowledged immediately. The second call occurred less than 30 seconds after that. Neither mobile responded. Mr. Dekort explained that he heard the second call as a minor correction on the first call and that his response was not needed. I find this far more plausible than the alternative conclusion, which is that somehow between 8:18 a.m. and 8:19 a.m., Mr. Dekort fell into a deep sleep. During the hearing, the employer presented the recordings as two separate calls. I am convinced that the more contextual analysis leads to the reasonable conclusion that the second call was a brief follow-up to the first one.

[85]  It is possible that Mr. Dekort was asleep before the 8:18 a.m. call, but I have no evidence of it, and I must assess his actions before 8:18 a.m. solely on the basis of his patrol not being mobile, which I will do shortly.

[86]  Clearly, it is also possible that Mr. Dekort feel asleep sometime between 8:18 a.m. and the three CMs encountering his vehicle parked near Tower 3. Given their reports that they encountered the car at around 8:30 a.m., which the video confirmed was no earlier than 8:34 a.m., Mr. Dekort could have been asleep for up to 16 minutes.

[87]  Given the differing evidence about how long the CMs waited at the vehicle’s window before Mr. Sagoo knocked on it, I watched the video footage with interest, expecting it would help confirm exactly what took place there. But the video ends at 8:34 a.m. without the three CMs coming into view.

[88]  The grievor cited King v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 84, as authority for the proposition that incomplete video footage cannot be relied upon. In King, the grievor was alleged to have used excessive force when dealing with an uncooperative inmate. Some video footage was secured, but it did not align with some of the direct testimony. Other footage that could have been secured was not submitted. The adjudicator found that the investigator relied on incomplete facts in reaching her conclusion about misconduct deserving of discipline. The adjudicator reversed the financial penalty.

[89]  The grievor submitted that the employer’s case demonstrates similar faults. The video footage ends before the three CMs encounter Mr. Dekort’s mobile patrol, despite the fact that footage of the interaction would have had significant corroborative value.

[90]  It is impossible for me to conclude with certainty to what extent Mr. Dekort was alert, whether he had drifted off, or whether he had fallen into a deep sleep. This could have been made much clearer had CM Sagoo obtained the video for the interaction at the car.

[91]  On balance, I do find it plausible to conclude that Mr. Dekort at least drifted off sometime between 8:18 a.m. and 8:34 a.m. However, on the basis of the short time involved, the conflicting testimony on the time the CMs spent at the window, the incomplete video evidence, and Mr. Dekort’s evidence, I am not convinced that he had fallen deeply asleep. Therefore, he did retain some capacity to respond to situations.

[92]  That said, I also have to conclude that he occupied his post with a significantly reduced level of awareness and attentiveness. If he was simply stretching his back and listening to the radio, then why did he not put his boots and vest back on after being notified that three managers were walking the perimeter? This was more than a mere lapse of judgement — it is proof that his capacity to respond to situations around him had become impaired.

[93]  When it comes to assessing the finding that Mr. Dekort abandoned his position, I am mindful that the employer’s termination letter states that he had “essentially” abandoned it. That implies that there is a spectrum of what it might mean to abandon one’s post, ranging from a short lapse in terms of ability to respond to full-out abandonment (e.g., by driving entirely away from a mobile post). Given this analysis and the employer’s qualification of the term, I find that Mr. Dekort’s actions were somewhere in the middle. The remainder of the case needs to be assessed on that basis.

B. How serious were the risks caused by Mr. Dekort’s actions?

[94]  In his testimony, Mr. Dekort commented further on the potential dangers created by his actions. While stating that he did not want to defend himself too much because he knew what he did was wrong, he stated that he had not been “incapacitated”. In the event of an actual escape or physical incursion, the fences are alarmed. He could have still slipped on and zipped up his boots. He could have still driven. With respect to his weapons, the rifle is locked in a stanchion that is bolted to the vehicle, and it must be released to be used. His pistol is on a 3-point locked restraint, and the vehicle is locked. To suggest that someone could have easily gained control over his firearms is implausible, he argued. That person would have to get through a locked vehicle and past a 6-foot-tall 200-pound professional and then would still have to figure out how to release the restraints.

[95]  The employer argued that these points do not diminish the fact that the patrol is armed precisely because the mobile officer must be able to respond to sudden emergencies. The absence of any alarms, escapes, or contraband incidents on that day did not condone or mitigate his behaviour.

[96]  I agree with both the employer and the grievor on this point. Mr. Dekort’s level of abandonment did increase the risk to the institution on that day. His actions cannot be condoned. On the other hand, when assessing later whether the termination of his employment was excessive, the fact that he was operating in a system with several other protections must also be considered.

C. How significant is the drone problem in assessing Mr. Dekort’s misconduct?

[97]  In its arguments before the Board, the employer placed a high degree of importance on the level of drone activity in and around Mission Medium in the months and weeks leading up to February 2017. The incidence of drone activity and the problems with contraband entering the institution were cited as significant aggravating factors in assessing the misconduct. This was noted in Labour Relations’ March 21 briefing note, which mentioned that the “UCCO had requested that management develop strategies to assist in the prevention of drone activity, as well as responding to drone activity out of concerns for their own personal safety.”

[98]  The memo goes on to state that Mr. Dekort’s act of sleeping at his post had to be considered in light of the union’s expectations that management would be proactive with respect to drone activity.

[99]  Mr. Sagoo testified that before February 24, 2017, there was drone activity “every day”. He and Mr. Kassen emphasized how the drone problems entered the shift briefings and written briefing notes. Mr. Kassen testified that the issue was the subject of labour-management discussions and that several strategies were put into place. Some included fencing off the exercise yard, briefing staff on how to identify aircraft, adding digital camera technology to Tower 3, and reducing inmate access to the roofs of the residences (as material had been dropped there).

[100]  In reviewing the documents introduced into evidence, I am convinced that while drones were a serious problem at Mission, it would not be correct to say that they were a daily occurrence. A February 2017 memo summarizing the problem lists 10 drone sightings over the course of 12 months, suggesting on average a monthly rate of occurrence. The daily briefing notes introduced into evidence cover approximately 14 days over the course of 8 weeks, and 5 drone sightings are mentioned, suggesting on average a weekly rate of occurrence. It was a significant but not a daily problem.

[101]  Furthermore, while mobile patrols clearly can play a key role in the drone interdiction strategy, their role is limited to what they can see or hear from the inside of a running (and mostly moving) vehicle. The mobile post officers are trained and instructed not to leave their vehicle unless they are required to draw their weapon.

[102]  That limited ability to observe everything from a vehicle may explain why the mobile patrol officers were not asked to conduct a visual search of the perimeter road for evidence of drug drops on the morning of February 24; instead, that role was assigned to CMs Sagoo, Fitzgerald, and Anderson.

[103]  I accept that the level of drone activity is an aggravating factor in considering Mr. Dekort’s behaviour, but there are some limits on the importance of the mobile patrol in stopping the problem.

[104]  Furthermore, the explicit link in the briefing note between the union’s concerns about drones and contraband and Mr. Dekort’s actions suggest that management felt pressured to take strong action to respond to the union’s concerns. While this is understandable, it is not fair to Mr. Dekort, whose individual actions require a full and fair assessment independent of union-management conflict over how to respond to the contraband problem.

D. Even if Mr. Dekort was not deeply asleep, did the lack of movement of his mobile not indicate a serious problem?

[105]  In a word, the answer to the question in the heading is “yes”, but once again, the evidence needs to be weighed to understand the extent of the grievor’s misconduct in remaining stationary for such a long period.

[106]  The employer’s witnesses gave contradictory testimony as to the expected movement of the mobile posts at Mission Medium.

[107]  Initially, the testimony focused on the expectation of constant movement on a rotating basis. The first time he was called, Mr. Sagoo testified that the mobiles are supposed to be in constant movement and that if they stop, they are to communicate with the other mobile unit, which should keep moving.

[108]  Mr. Sehra testified that the mobiles are expected to keep moving and that the principle of dynamic security, as applied to the mobile units, requires that they act unpredictably. He also brought me to the content of the mobile patrols training module, which states, “Should there be two (2) mobiles patrolling at the same time, both vehicles should patrol in the same direction and inform each other if and when they are stopping their patrol.” Mobiles should stop only for a few minutes at a time and radio in when doing so, he said. When he was asked in cross-examination if he was aware of instructions at Mission Medium for one mobile to be stationed, he said, “No.”

[109]  Mr. Kassen also testified about the expected movement of the mobiles, indicating that generally, they are supposed to rotate the institution, approximately once every minute, which would mean that they would pass by any given location once every 30 seconds. In cross-examination, he amended that testimony, acknowledging that it could take 2 minutes to drive around, meaning that one mobile would pass a point every minute. He was also asked in cross-examination if officers on mobile patrol would operate their own zone system. He stated that “even if that was the practice, zones are not stationary.”

[110]  The testimonies of Mr. Sehra and Mr. Kassen are reinforced by the Mobile Patrol Post Order (“the post order”), which states the expectation that when there are two patrols, one shall remain in constant motion, while the second shall position itself according to the location of leisure activities or supervision requirements. As noted earlier, the testimony indicated that the mobiles should observe the yard during periods of mass movement, which on the morning of February 24 would have been from 7:25 a.m. to 8:05 a.m. as the inmates moved from their residences to breakfast.

[111]  According to the testimonies of Mr. Sehra and Mr. Kassen and the wording of the post order, if Mobile 1 was parked, Mobile 2 should have passed by once every 2 minutes, or approximately 35 times.

[112]  Despite all this testimony, not once in the entire 75 minutes of the video footage does Mobile 2 appear.

[113]  After the video footage was played before the Board (during Mr. Kassen’s testimony), the employer called Mr. Sagoo back to testify a second time. Portions of the video were replayed, and he was asked why Mobile 2 was not seen.

[114]  The grievor’s representative objected to recalling Mr. Sagoo because he had been in the room for part of Mr. Fitzgerald’s and Mr. Kassen’s testimonies. I decided to allow the testimony because I felt it was essential to understand why the second mobile did not appear.

[115]  When he was recalled, Mr. Sagoo testified that the mobiles at Mission Medium often use a diagonal zone system, in which one takes the northern and western sides and the other takes the eastern and southern sides. In cross-examination, he admitted that this is not in the post order and that it is part of the strategy to “try and make it unpredictable.”

[116]  In other words, Mr. Sagoo’s subsequent testimony made it clear that the mobile post order is not followed to the letter.

[117]  In light of all this, Mr. Dekort’s decision to park looks somewhat different from how it initially did, both at the time the discipline was rendered and during the initial stages of the hearing. It is clear that there is a practice of coverage by zone and that parking in a zone during times of mass movement makes sense.

[118]  Furthermore, as Mr. Dekort testified, the place where he parked is near what is called “the north troubled field”. He stated that it is the most common approach for throw-overs. This statement is corroborated by the evidence on drone activity. In the briefing notes, approximately half the reported drone sightings are in the vicinity of Tower 3, where Mr. Dekort was found. He testified that the mobile patrols often stop there.

[119]  An email sent to all correctional officers on July 6, 2016, emphasized that mobiles are a key part of the drone and drug interdiction strategy and quotes from the post order as follows: “One Mobile Patrol shall remain in constant motion. The second Mobile shall position themselves [sic] according to the location of leisure activities and/or supervision requirements.”

[120]  Once again, while this provides some official rationale as to why Mr. Dekort might have parked where he did, it still suggests that Mobile 2 should have passed by Mobile 1 at some point during the 75-minute period.

[121]  Mr. Dekort’s decision to remain stationary for 75 minutes was the wrong decision. It was not in accordance with his training or the mobile post order. Combined with the decision to remove his boots and vest, recline his seat, and close his eyes to at least the point of drifting off, it was a career-altering bad decision. He was not alert, not attentive, and not engaged in dynamic security.

[122]  However, within the practices in place at Mission Medium, remaining within a single zone without engagement and the passing-by of the second mobile does appear to be an acceptable practice. It has some logical connection to the goal of observing inmates and to being near the area where drones appear on a regular basis, albeit not for as long as 75 minutes.

E. Were Mr. Dekort’s actions likely to discredit the Service?

[123]  Going back to the termination letter, the grievor accepts that he violated “Standard One, Responsible Discharge of Duties”, of the Code of Discipline, namely, by neglecting his peace officer duties and by failing to follow relevant legislation, the Commissioner’s directive, and standing orders (particularly by removing his boots, his vest, and remaining stationary for the time he did).

[124]  However, the grievor disputed the finding that he violated “Standard Two, Conduct and Appearance” by acting “... in a manner likely to discredit the Service ...”. He complained that this was never put to him at the disciplinary meeting and that he first learned of this allegation only when he was being dismissed. He argued that this omission cannot be cured by a hearing de novo (i.e., a hearing that deals with a matter anew) and that I should overturn this finding of the employer. He argued that proving misconduct on only two out of three allegations requires the adjudicator to reassess the appropriateness of the discipline. He cited Lloyd v. Attorney General of Canada, 2016 FCA 115 at para. 23.

[125]  Additionally, he argued that proving discredit to the Service requires a high level of proof, citing Tobin v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 76 (“Tobin 2011”). That case involved the rehearing of a grievance following appeals of an earlier decision on it to the Federal Court and Federal Court of Appeal. The case concerned a grievor dismissed following his arrest for the criminal harassment of a female casual employee. The grievor pled guilty to 1 of 6 charges and was given an 18-month probation. The case attracted significant media attention in Kingston, Ontario. The employer subsequently terminated his employment.

[126]  In Tobin 2011, the adjudicator reassessed the evidence following the Federal Court of Appeal’s instructions and still found that the employer did not meet its burden of proving that the grievor had brought discredit to the Service.

[127]  In this case, the employer countered that the termination letter did not state that Mr. Dekort’s actions had discredited the Service, only that his actions were “likely to discredit” it. The CSC’s mission is to protect the public, and were it to become known that he was allowed to sleep on the job, it would likely discredit the Service.

[128]  I have no reason to doubt that the first time the grievor heard about the “likely to discredit the Service” charge was at the time of his termination, which made it difficult for him to respond to that charge before the termination decision was made. I also find that the employer in this case provided no direct evidence as to how his actions had been likely to discredit it.

[129]  At the same time, a close reading of Tobin 2011 indicates that in that case, the employer did not rely on the same wording used in Mr. Dekort’s case. In Tobin, the employer set the threshold higher, stating at paragraph 115 that the grievor had “... brought the Correctional Service of Canada into disrepute ...”. The adjudicator rejected that claim for lack of evidence, although in the end, he upheld the termination.

[130]  In this case, the employer claimed only that Mr. Dekort’s actions were “likely to discredit the Service.” In its closing arguments, it linked the “likely to discredit” statement to an outcome if the grievance were upheld, stating essentially that reinstating him would negatively impact the institution in the public eye if his actions were sanctioned.

[131]  I agree with the employer that Mr. Dekort’s actions were likely to discredit the Service. While events at an institution are not likely to generate public attention, it remains possible that they could come to light, and the public would be right to view the Service poorly if it condoned abandoning one’s post in the manner Mr. Dekort did.

[132]  That being said, the charge of “likely to discredit to the Service” has merit only to the extent that the other two charges are upheld. It is not really an independent charge. As I have determined that Mr. Dekort contravened the other standards in the Code of Discipline, finding that he engaged in actions “likely to discredit the Service” adds little to the analysis of the case. The allegations he conceded to are of such significant magnitude that I believe I could have determined that Mr. Dekort engaged in misconduct warranting discipline in light of them alone.

V. Issue 2 - Did Mr. Dekort’s misconduct warrant terminating his employment?

[133]  To summarize, I have found that Mr. Dekort engaged in serious misconduct on the morning of February 24, 2017. He deliberately removed some of his safety equipment and placed himself in a position such that he could not effectively carry out the duties of his post. However, I have found that the extent to which he abandoned his post is not as significant as suggested in the employer’s briefing note and termination letter. I have found that the dangers created by his actions were serious but that they were mitigated by other safety systems. I have found discrepancies between the mobile post orders and normal behaviour, which place Mr. Dekort’s lack of movement in a less serious light. I also have found that the role of mobile patrols in combating the drone problem is limited by the nature of the post.

[134]  These findings, combined with an analysis of the employer’s and grievor’s arguments, lead me to the conclusion that the termination of Mr. Dekort’s employment was an excessive penalty. The employer’s arguments followed six main themes, and the grievor’s countered with five main themes. I will analyze each theme one by one, starting with the first three provided by the employer.

A. An adjudicator should intervene in a disciplinary penalty only when it is wrong or unreasonable

[135]  The employer argued that an adjudicator should not intervene in a disciplinary decision unless it is clearly unreasonable. Given the level of Mr. Dekort’s misconduct, the importance of the mobile post generally, and specifically the drone problems, termination was a reasonable proposition.

[136]  In support of this principle, the employer cited the case of Cooper v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 119 at para. 13, in which the adjudicator adopted the principle that “an adjudicator should not intervene [to reduce a penalty] ... just because he feels that a slightly less severe penalty might have been sufficient. It is obvious that the determination of an appropriate disciplinary measure is an art, not a science...”. That conclusion was reinforced in Ranu v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 89, in particular at paragraphs 45 and 49.

[137]  It should be noted that Cooper involved a grievor who was found to have engaged in abusive behaviour towards a manager, who was given a financial penalty of $160, and who did not appear at the hearing. Despite the principle being applied, the adjudicator also considered whether a lesser penalty was appropriate and concluded that one was not.

[138]  Ranu involved a correctional officer who failed to conduct two security rounds in a segregation unit because he fell asleep. He then recorded those rounds in the duty log as if he had completed them and finally denied falsifying the logs until he was provided with video proof. For that alleged misconduct, he was given a 30-day suspension without pay, which the adjudicator upheld. Of note, the day the grievor in Ranu committed his misconduct, he had learned that a previous 10-day suspension had been converted to a 3-day suspension.

[139]  However, the adjudicator in Ranu did not stop at asking whether the employer’s decision was reasonable. She also put an onus on the grievor as follows: “... to persuade me that it is just and reasonable for me to substitute a lesser penalty” and then found that he had failed to.

[140]  With this argument, the employer is essentially asking me to adopt a reasonableness standard of review for disciplinary decisions. If that indeed was proposed, I do not accept the argument. I note that s. 230 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2) explicitly prescribes this type of standard in cases involving terminations for unsatisfactory performance, to determine if such an assessment of the employee is reasonable. The Act does not do that for terminations for misconduct.

[141]  Following Wm. Scott and Basra, the question for an adjudicator in a case of termination for misconduct is, “Was the discipline the employer imposed an excessive penalty in the circumstances?” This is different than assessing reasonableness.

B. Correctional officers must be held to a higher standard of conduct

[142]  This principle is well established in Board jurisprudence, as was noted in Bridgen v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 92 at para. 106. In fact, the grievor did not challenge this line of argument. As peace officers, correctional officers are charged with upholding the law. Their designation under the Criminal Code and the fact that they are armed and authorized to use force to protect the safety and security of inmates, other staff, and the public, places upon them a very high standard of behaviour. Thus, a deliberate effort to abandon one’s position or to significantly reduce one’s capacity to respond to a sudden emergency is far more serious in a correctional environment than it would be in most federal public service ositions.

[143]  That said, the cases the employer cited about this principle do not consistently support the decision to terminate Mr. Dekort. For example, in Desjarlais v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 88, the grievor was given a one-day financial penalty for propping open the door to the MCCP room in a medium-security institution. The employer believed that she had lied about not propping open the door; however, video evidence conclusively showed that she did not close it securely. The adjudicator concluded that she did not intentionally lie, and despite accepting the principle that correctional officers are subject to a higher standard, the adjudicator substituted a written reprimand.

[144]  In McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26, a correctional officer was terminated for forging her physician’s signature on nine different medical certificates in the context of chronic absences from work due to sick leave. The adjudicator upheld her termination, but the decision was significantly influenced by the sustained denial of her forgery, her short employment history (4.5 years), and the fact that 1 year earlier, she had received a 5-day financial penalty for developing a relationship with an inmate. These are very different factors than those at issue in the present case.

[145]  The termination in Richer v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 10 was upheld, but this was an employee with three years’ service who was dismissed after experiencing an off-duty drug overdose that led to unconsciousness and was later indicted for possession of cocaine, crack, and cannabis for the purpose of trafficking.

[146]  Termination was also the result in Yayé v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 51, in which a correctional officer had been assigned to check every cell once per hour to ensure that each one contained a living, breathing human being. During the night, an inmate committed suicide. Video evidence demonstrated that the officer had consistently failed to check any cell when conducting each round and instead that he had simply walked the hallway, swinging his flashlight from side to side.

[147]  In both cases, the adjudicators hold correctional officers to a higher standard, but they also carefully weigh the entire body of the evidence. Termination was not automatic. The adjudicator in Yayé, at paragraph 119, commenting on her decisions in Cooper and in other similar decisions, states that

[119] ... 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....

[148]  In this case, I accept that a correctional officer must be held to a higher standard, but that does not lead me to uphold the termination.

C. Honesty is the cornerstone of the employment relationship

[149]  In arguing that honesty is the cornerstone of the employment relationship, the employer sought to justify imposing a termination in a case in which an employee was found to have lied. Thus, the employee damaged the employment relationship to the point that the employer is justified bringing it to an end.

[150]  With this principle, the employer based its arguments on its conclusion that Mr. Dekort lied about sleeping in the mobile patrol for a long period. As noted, I find that there is not consistent evidence demonstrating that in fact, he slept for an extended period. I concluded earlier that there was conflicting testimony from the employer’s witnesses and the grievor. I reached that conclusion after finding that the employer had given insufficient weight to the 8:18 a.m. radio call and on the basis that it did not capture the meeting at the vehicle window when it secured video footage. Furthermore, from the moment he met Mr. Sagoo back in the institution, Mr. Dekort acknowledged his wrongdoing. He never lied about parking the vehicle, removing his boots and vest, reclining in the seat, and closing his eyes.

[151]  This situation is much different from the cases cited by the employer for this principle, which include several of the cases already cited, including McKenzie, Richer, and Yayé, in which ongoing dishonesty was a factor. To that analysis, the employer added Roberts v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 28, in which the adjudicator upheld the termination of a correctional officer who had used excessive force in dealing with an inmate and was adamant to the end that he had done nothing wrong.

[152]  The employer also argued the honesty principle by citing Matthews v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 38. The grievor in that case was a CX-2 responsible for the non-security escort of an inmate to visit a halfway house in Nova Scotia. He allowed an unauthorized lunch stop at a pub to meet the inmate’s son. The grievor then collaborated with the inmate and his parole officer to hide the pub lunch from his superiors. He withheld information about the pub stop from his OSOR and admitted to it only much later, during an investigation conducted by the institution because it suspected the inmate had smuggled drugs into the institution.

[153]  Although the grievor in Matthews actively collaborated with an inmate to lie about the events of the day, the adjudicator concluded that the termination had been too harsh a penalty, considering that the grievor had demonstrated remorse and an ability to be redeemed. In place of the termination, the adjudicator ordered a suspension up to the date of the decision (approximately two years) and a demotion to CX-1.

D. The grievor did take responsibility for his actions

[154]  Building from that, I will now turn to one of the grievor’s key arguments.

[155]  A key factor in the employer’s decision to terminate Mr. Dekort’s employment was its assessment that he had failed to take responsibility and accountability for his actions. In other words, as egregious as his actions were on the morning of February 24, his perceived lack of remorse convinced the employer that he could not learn from his mistakes. It concluded that he had been was dishonest about what took place that morning. The perceived dishonesty, lack of responsibility, and accountability contributed to breaking the bond of trust.

[156]  Thus, key issues for me to assess are whether Mr. Dekort did show remorse and whether he demonstrated that he could learn from the mistakes he made that morning. In other words, following the logic of Matthews (particularly at paragraph 156), has Mr. Dekort demonstrated that he is redeemable?

[157]  I believe that Mr. Dekort has demonstrated a very high degree of remorse and that he has accepted far more accountability for his actions than the employer gave him credit for. He communicated it to the employer more than it acknowledged in its termination letter. That said, the extent and degree of his remorse might not have come across to the employer before the decision was made to terminate him; his clearest and strongest statements accepting responsibility for his actions were made only during the disciplinary action meeting on May 4, 2017, and at the hearing before the Board.

[158]  I will begin with the conversation between Mr. Sagoo and Mr. Dekort on the morning of February 24. The contrasting testimonies of the two witnesses are instructive. Recall that this meeting took place in the institution, after Mr. Dekort had been relieved of his duties for the day. Mr. Sagoo recalled it lasting about 20 to 30 minutes. He recalled speaking to Mr. Dekort about the safety and security of the institution, the safety of the public, the armed nature of the post, and the increased importance of the mobile post, given the drone problems. However, during his testimony, he could not recall any details of what Mr. Dekort said to him.

[159]  Mr. Dekort remembered about that conversation that Mr. Sagoo was “upset and disappointed with me and I felt the same way.” He had started to explain his version of what had taken place and remembered that Mr. Sagoo had said, “I will not put up with anyone lying to me.” Mr. Dekort decided not to give much of an explanation for what had taken place and so did not talk about his back problems or allergies. “At that point I decided I would fall on my sword ... and would accept punishment,” he testified.

[160]  In short, Mr. Dekort knew immediately that he had done something seriously wrong, and his response at the time was to accept Mr. Sagoo’s lecture.

[161]  The remorse Mr. Dekort felt is also evident in the accounts and transcript from the March 9 disciplinary meeting. While he did not acknowledge sleeping, he did acknowledge taking off his boots and vest and making bad decisions. When he was asked at the meeting about what he needs to do to change his behaviour, his response was, “Internally being accountable and progressing forward with continued better decision making.” When he was asked if he understood the significance of the risk he created, he stated as follows: “Yes I do and it’s tearing me inside at the moment. I can’t express how guilty and sorry I feel.”

[162]  Despite this, the March 21 briefing note developed by Labour Relations stated that Mr. Dekort’s “... inability to accept responsibility for his behavior [sic] and lack of mitigating factors garnered from the hearing created an additional concern in relation to the risk he poses.” The termination letter delivered on May 4 states as a conclusion, “You did not take any responsibility or accountability for your actions, nor did you understand the seriousness of your actions.”

[163]  I have no doubt that the employer did not hear what it might have wanted or needed to hear: an actual admission that he had been sleeping and had intended to sleep. But clearly, it did not fully absorb what Mr. Dekort actually said at the March 9 meeting. This was exacerbated by the fact that the entire disciplinary meeting lasted only 10 minutes and was not followed by a further investigation or discussion.

[164]  Only after the termination letter had been delivered, at the very end of the May 4 meeting, did Mr. Dekort elaborate on his remorse, after his union representative asked him if he had anything else to add. He spoke for several minutes, although knowing it was too late, about the huge regret he felt. He described himself as truly repentant. He acknowledged that he made bad decisions and explained that the stresses of the job contributed to them. He expressed a desire to learn and indicated that he was working to improve. He stated that he was terribly sorry, but he also talked about the aspects of the work that he feels he did well. He asked to be given another chance to prove that he could learn from his mistakes.

[165]  As his grievance was not actually presented at the final level, the next chance Mr. Dekort had to speak about the incident was at the hearing. What he said under oath was entirely consistent with the statements he made in May 2017. He deeply regretted what he called “a life-changing moment that is based on a very small point in time.” He talked again about the good work he did over the course of nine years: protecting Canadians, doing his job, backing up other officers, helping save lives, trying to revive dead inmates, and providing advice to offenders.

[166]  His willingness to accept responsibility is further indicated by the proposal to replace the termination with a lengthy suspension of between 12 and 24 months.

E. Prior discipline appears to have inappropriately influenced the decision to terminate the grievor

[167]  The grievor argued that the employer discussed prior discipline before rendering its decision to terminate him, in violation of the collective agreement.

[168]  The collective agreement between the parties includes the following clause:

17.09 Any document or written statement related to disciplinary action, which may have been placed on the personnel file of an employee, shall be destroyed after two (2) years have elapsed since the disciplinary action was taken, provided that no further disciplinary action has been recorded during this period.

[169]  In his March 1 email to Mr. Kassen, CM Sagoo wrote that “LR was consulted and Nancy has informed me of the following of CX Dekort’s discipline history: Two disciplines in 2014 (one I believe for a cell phone inside the institution) ... One discipline in 2009 (sleeping on duty)”.

[170]  He then stated: “These are longer than two years, so we cannot use [them] to incorporate into our discipline. However, I feel that it should be recognized, especially the sleeping in 2009.”

[171]  Despite that caution, this information made it into the March 9 disciplinary meeting. Mr. Kassen mentioned the cell phone, the sleeping in 2009, and an issue in which his handcuffs went missing. He asked Mr. Dekort if those incidents were accurate. The grievor’s union representative, Brian Kersey, intervened and stated that those incidents were all over 2 years old. The discussion took up almost 2 of the 10 minutes of the meeting. Mr. Kassen eventually reformulated the question as one of character, asking, “... what in your opinion needs to occur for there to be sustained change with respect to the incident?”

[172]  During his testimony, Mr. Kassen stated that he did not consider the previous discipline in his decision to terminate the grievor and that the events on February 24 were so egregious that they settled the decision to terminate him. In cross-examination, he also testified that he had worked with personal knowledge and that he had wanted to ask questions, to understand the grievor’s behaviour. However, under cross-examination, he also admitted that he did not start at Mission Medium until December of 2010, long after the events of 2009 took place.

[173]  The termination letter states that the decision to terminate was made after Mr. Kassen “... reviewed [the grievor’s] service record and [his] performance files.” Under cross-examination, he testified that he did not personally consult Mr. Dekort’s file but instead that he consulted with Labour Relations.

[174]  No performance information, positive or negative, was entered into evidence, other than Mr. Dekort’s testimony about wanting to have his “good work” recognized.

[175]  The evidence is quite clear. Labour Relations had access to information about prior discipline that it passed to Mr. Sagoo. He simultaneously said the employer “cannot use” the information but that it “should be recognized”. Mr. Kassen then brought it up at the disciplinary meeting.

[176]  Both Mr. Sagoo and Mr. Kassen acknowledged that Labour Relations should not have had prior discipline on file. I am not convinced that either Mr. Sagoo or Mr. Kassen had personal knowledge of the prior events.

[177]  On a balance of probabilities, I find that the information provided by Labour Relations did at least indirectly influence the decision to terminate the grievor. It should not have.

[178]  The record in place as of the termination should have been that Mr. Dekort had been discipline-free for two years, period. The disciplinary process should have proceeded entirely and cleanly on that basis.

F. Adjudicators should correct a breach of fairness

[179]  The grievor argued that several additional aspects of the disciplinary process represented breaches of fairness. In acknowledging that such breaches can be cured by the de novo process of a hearing, the grievor argued that an adjudicator can and should correct such breaches. He cited paragraph 106 of King as follows for this point:

106 It is well established that that an adjudication hearing is a hearing de novo (see Roberts, for example) and that the conclusions reached in a disciplinary investigation report must be proven at adjudication. The value of a disciplinary report is or can be that it often provides an explanation of the basis for the discipline imposed. Nevertheless, an employer who acts on the basis of a flawed investigation runs the risk of having the flaws exposed at adjudication and its conclusions overturned. That is so in this case.

[180]  In analyzing the arguments in this area, I need to first comment on the paucity of the process between the events of February 24 and the termination on May 4 and on the fact that there was no investigation process.

[181]  At the initial discussion that took place in the institution on February 24, the employer, Mr. Dekort, and his union representative spent approximately 20 minutes discussing his actions. Mr. Dekort experienced the discussion as a lecture, one he admitted that he richly deserved and therefore one in which he declined to say very much.

[182]  After that, the employer, Mr. Dekort and his representatives spent exactly 10 minutes talking about what happened at the disciplinary meeting of March 9. A large portion of that time was spent discussing the status of discipline that was more than 2 years old.

[183]  Mr. Dekort testified that he expected that some other process would follow the March 9 meeting — an investigation or further discussion — but it never did.

[184]  The employer pointed out that Mr. Dekort was invited to provide his side of the story at the March 9 disciplinary meeting. This is true. The invitation to the meeting stated, “This will be your opportunity to provide me with any mitigating information you would like me to consider, prior to rendering a decision on discipline.” At the meeting, Mr. Dekort was twice invited to provide additional information.

[185]  The employer also argued that Mr. Dekort could have come forward at any point between March 9 and May 4 to add to what he said at the disciplinary meeting. That is also true.

[186]  Knowing that he had committed significant misconduct and that management was in the process of considering serious discipline, the grievor should have come forward with more information. I understand that he might have hesitated to out of a mixture of fear or acceptance that he had done something wrong. However, he made a big mistake by not coming forward. His bargaining agent would have been wise to encourage him to add additional information and to help him take proactive steps to communicate his remorse before the employer made its decision.

[187]  That being said, there is a higher obligation on the employer to ensure that its decision-making process is fair and accurate. In that vein, I cannot understand why it did not take further steps after March 9, particularly if it listened to the radio calls, as promised.

[188]  There is also no evidence that the employer assessed Mr. Dekort’s on-the-job performance at either Mission Medium or Mission Minimum between February 24 and its decision to terminate.

[189]  According to the grievor, the March 9 meeting did involve several procedural problems that would have been cured by an investigation. He was not provided with the actual OSOR reports or CM Sagoo’s March 1 email, and not all of the allegations were spelled out in the meeting invitation. Those procedural problems were raised in the May 4 meeting after the letter was read out, at which point the employer agreed to hold a caucus, for reconsideration. After a short break, it returned and said that the decision to terminate would stand and that the documents the grievor sought could be obtained through access-to-information procedures.

[190]  The grievor cited Dhaliwal v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 109, for the proposition that an adjudicator may overturn a rush to judgement without all the facts (in that case, it was a rejection on probation). Applying that principle to the case at hand, the grievor’s point is that Mr. Kassen reached his decision to terminate without conducting a full investigation or inquiring further of the grievor about his actions.

[191]  I concur with the grievor on this point and note that the problems with the process before the termination were compounded by the fact there was no final-level hearing. The purpose of the internal grievance process is to provide the grievor and his bargaining agent with a quick opportunity to meet the employer and to attempt to resolve the issues. Instead, there was no discussion, no reconsideration, and no informal conflict resolution. After the grievance was referred to the Board for adjudication, there was no willingness to mediate. There was just a long two-year wait for the case to be heard at adjudication.

[192]  This is perhaps a good point to note that as of his termination, the grievor had more than nine years of service. The employer said that his service should be considered an aggravating factor since an employee with that level of experience should have known better. There is some merit to this. However, as an employee with more than nine years of service, he also deserved more consideration — a more significant investigatory process — and more time to tell his story.

[193]  Also for the principle that adjudication should cure a poor internal process, the grievor cited the case of Kinsey v. Deputy Head (Correctional Service of Canada), 2015 PSLREB 30. It involved an employee who had a very difficult employment relationship; as of his termination, he had been disciplined several times. The grievor’s termination was imposed for his role in allowing a prisoner release without a proper gate pass, for dress code violations, and for bringing a cell phone into an institution. The adjudicator stated at paragraph 108 that “[d]iscipline tainted by a breach of natural justice is inappropriate, and for this reason, the grievor’s termination is overturned ...”.

[194]  The breaches of fairness in this case are not of the magnitude of those in Kinsey, and arguably, Mr. Dekort’s behaviour on the morning of February 24 was a more significant potential threat to the safety and security of the institution than the multitude of wrongs committed by the grievor in Kinsey. At the same time, there is not a single piece of evidence that Mr. Dekort’s employment history comes close to the kind of difficult employment relationship captured in Kinsey. In fact, all three employer witnesses clearly testified that none had had any interpersonal conflict with Mr. Dekort.

G. Terminations should be upheld when the bond of trust is irreparably broken

[195]  The employer’s arguments were that by putting the inmates, his fellow staff, and the public in danger, the employer could no longer trust Mr. Dekort to act as a peace officer.

[196]  This principle is not easy to assess. How does one measure the loss of trust? Surely, a lot of weight must be placed on the testimony of CMs Sagoo and Fitzgerald and Warden Kassen, who are experienced, professional, and knowledgeable about the workplace environment. Each stated that he would have difficulty placing Mr. Dekort back into a situation of trust, in which other staff would have to depend on the wisdom of Mr. Dekort’s decisions and actions for their safety. On the other hand, I have to consider that what they offered were merely their personal opinions.

[197]  For this principle, the employer cited Gangasingh v. Deputy Head (Canadian Dairy Commission), 2012 PSLRB 113, a case in which a senior auditor was found to have actively counselled a private company on how to delay or stall a claim made against that company by the Canadian Dairy Commission. The employer also cited Kelly v. Treasury Board (Correctional Service Canada), 2002 PSSRB 74, in which the grievor was found to have engaged in a money-laundering scheme with an inmate. In both cases, the grievors maintained innocence until they were confronted with uncontestable evidence of wrongdoing. In other words, the bond-of-trust principle is closely tied to the assessment of the grievor’s honesty and accountability, which I have already addressed.

[198]  Beyond that, some further evidence would have been required if the employer wanted to establish this argument. The paucity of its fact-finding process and the lack of a full investigation made that impossible. In the end, I have to weigh what I heard from its witnesses against what Mr. Dekort said about his willingness to learn from his mistakes.

[199]  In this area of argument, I am also influenced by the testimony of Mr. Sehra, who spoke at length about the training provided to CX officers, which includes teaching them the approaches they should use to learn from mistakes. I believe that the grievor took that training to heart. In his statements to the employer more than two years ago, and in his statements before the Board, he stated clearly that he owns the mistake and that he must reflect daily on how to improve. That is exactly what Mr. Sehra said CXs are instructed to do.

[200]  I know that Mr. Dekort will have to prove that the bond of trust required of him can be restored, but I am also convinced that he has learned that lesson well.

H. Terminations should be upheld when the grievor neglected his or her duties

[201]  The employer cited a series of cases in which arbitrators or adjudicators upheld the terminations of employees found sleeping on the job in safety or security situations, most of which come from the private sector. I have read them all and do not find any of them determinative of the decision I must make. In each one, an arbitrator or adjudicator considers a variety of factors, such as years of service, the employee’s disciplinary record, the potential and actual impact of sleeping on the job, and the employee’s level of ownership of his or her actions.

[202]  I will comment specifically on the one additional case upholding a termination, that the employer cited,  which involved a federal correctional environment, Tousignant v. Treasury Board (Solicitor-General of Canada), [1979] C.P.S.S.R.B. No. 26 (QL). In that case, an armed correctional officer was sleeping in a control tower and had to be physically shaken and “kicked ... three times” to be awoken.

[203]  In response, the grievor cited the case of Lagacé v. Treasury Board (Solicitor General Canada - Correctional Service), PSSRB File No. 166-02-16037 (19881007), [1988] C.P.S.S.R.B. No. 275 (QL), as authority for his argument that termination was too heavy a penalty for his misconduct. Like Mr. Dekort, the grievor in Lagacé feel asleep while on a motorized patrol of a medium-security institution. He was armed. He was asleep for as long as seven minutes. The warden found him. The mobile patrol post order was an issue. The institution was on heightened alert because a nearby institution had had reports of a handgun on the premises, and a shotgun had been stolen nearby. The employer had assessed a financial penalty of $500. The adjudicator, considering the lack of premeditation and the fact the grievor had worked several shifts that week, reduced the penalty to $200.

[204]  The employer’s main point of argument against Lagacé was that the case dates from 1988 and is too old to provide much guidance. Yet, Tousignant is almost 10 years older than Lagacé. If the age of a case alone were to determine the authorities that should be followed, both would be tossed out.

[205]  However, the point is that there is no automatic route to a particular assessment of whether termination was the right decision. Yes, unlike in Lagacé, Mr. Dekort had not worked several shifts, and he had accepted the overtime shift voluntarily. However, this was a factor in reducing the penalty in Lagacé from $500 to $200, which does not speak for termination. Yes, there is the aggravating factor of the drone issue in this case, but in Lagacé, there was also a recent security threat — the reports of a handgun on the premise and the nearby theft of a shotgun.

[206]  In Tousignant, the adjudicator upheld a termination for sleeping on the job, but that case also surveys the case law of the time, finding penalties of two days, three days, five days, nine months, and termination.

I. Deterrence can be considered when assessing an appropriate penalty

[207]  The employer correctly argues that deterrence should be considered when assessing an appropriate penalty, but it does not lead me to upholding the termination in the face of all the other challenges listed earlier. I believe that a strong message of deterrence is required but that it can be considered under the third and final issue.

J. Summary of Issue 2

[208]  In analyzing issue 1, I concluded that Mr. Dekort had engaged in serious misconduct but that the level of misconduct was not as significant as concluded by the employer.

[209]  In analyzing issue 2, I have concluded that the termination of Mr. Dekort’s employment was not justified. While accepting the employer’s argument that correctional officers must be held to a higher standard and that a strong message of deterrence should be sent, an adjudicator can still intervene if the penalty is not warranted. In reaching my conclusion, I considered that Mr. Dekort acknowledged his misdeeds, prior discipline appears to have inappropriately influenced the decision to terminate him, and there were several procedural problems with the disciplinary process.

[210]  This third question in the Wm. Scott analysis must now be answered: What penalty should replace the termination?

VI. Issue 3 - What penalty would be appropriate instead of termination?

[211]  At the hearing, the grievor proposed that the termination should be replaced with a significant suspension without pay of between 12 and 24 months, which would recognize the seriousness of his misconduct.

[212]  The employer submitted that if I found that the termination of Mr. Dekort’s employment was an excessive penalty, I should order compensation in lieu of reinstatement, following which I should hear from the parties separately on the scope of damages. The request for damages rather than reinstatement was made because, according to the employer, the grievor lacks the basic instincts to perform the duties of a correctional officer.

[213]  The grievor also reserved the right to make submissions on the scope of damages if I granted the employer’s request. However, he made it clear in his testimony that he does not accept the proposition that he lacks the basic instincts to do the job. Instead, he argued that he knows he made a serious mistake on the morning of February 24, which needs to be weighed against his record of having done a good job over nine years protecting Canadians, backing up other officers, attempting to save lives, and providing advice to offenders.

[214]  I accept that the grievor made extremely serious mistakes in judgement on the morning of February 24, 2017, which were worthy of serious discipline. I do not accept that he lacks the basic instincts to do the job on the basis of a single, one-time event. Other than the events that morning, no evidence was adduced to demonstrate that he lacks the competence to perform the duties of the job.

[215]  The employer cited Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107, as the authority for awarding damages in lieu of compensation. The criteria in Bahniuk are that compensation in lieu of reinstatement is to be considered under exceptional circumstances, where there is evidence that co-workers refuse to work with the grievor and there is a “... refusal of the grievor to accept responsibility for any wrongdoing” (at paragraph 356) or where the relationship between the grievor and the employer has become so “... irreparably damaged and that the employment relationship is no longer viable” (at paragraph 374).

[216]  I do not find that the evidence provided by the employer establishes that these criteria are met in Mr. Dekort’s situation. No evidence of co-workers’ refusal to work with him was tendered. There was clear evidence that he accepts responsibility for his wrongdoing. I have no basis to conclude that there was irreparable damage to the employment relationship.

[217]  The grievor cited Kinsey as an authority for ordering reinstatement rather than damages. Although the adjudicator “... struggled for some time over whether it is in the best interests of the grievor that he be reinstated or whether reinstatement would merely put him in an untenable workplace situation where his every move would be subject to intense scrutiny” (at paragraph 111), in fact reinstatement was ordered, and the termination was replaced by a three-month suspension without pay.

[218]  In deciding what penalty should replace a suspension, I am mindful of the reasoning of the adjudicator in Matthews. Both Matthews and this case involve a serious breach of well-established rules and a dereliction of a peace officer’s duties. Both led the employer to legitimately question whether the grievors could be trusted to carry out a correctional officer’s duties, as part of which good judgements and decisions are matters of life and death. Like Matthews, I am convinced that the grievor in this case demonstrated a deep willingness to redeem himself in the employer’s eyes.

[219]  In Matthews, the adjudicator replaced the termination with a suspension that ran from the date of the termination to the date of the decision, as well as a demotion from CX-2 to CX-1. I note that the grievor in Matthews actively tried to hide his misdeeds from the employer, which Mr. Dekort did not do.

[220]  In this case, I believe that a suspension without pay to the date of the decision is the appropriate penalty.

[221]  I take notice of two other Board decisions that imposed a similar penalty, Andrews v. Deputy Head (Department of Citizenship and Immigration), 2011 PSLRB 100, and Hughes and Titcomb v. Parks Canada Agency, 2015 PSLREB 75. Similar to the reasoning of the adjudicators in those cases, I think that Mr. Dekort must be sent a strong message consistent with the magnitude of his misconduct in the hope that it serves as a very strong reminder of his obligations as a CSC peace officer. For that reason, I make an award that does not result in retroactive pay.

VII. Conclusion

[222]  On the morning of February 24, 2017, Correctional Officer William Dekort deliberately removed his boots and vest, reclined in his seat in the vehicle, and closed his eyes. He at least drifted off for a time. His attentiveness and good judgement were severely diminished. He effectively abandoned his armed mobile post and therefore failed to carry out his peace officer duties, and he did not follow the mobile post order.

[223]  The fact that there were no immediate, urgent threats at that post, along with the notion that he could have responded effectively had one occurred (e.g., had someone tried to get into the car, or had an alarm gone off), are not excuses for his behaviour, although they can be taken into account when considering whether termination was the right disciplinary response.

[224]  However, he clearly did not abandon his post to the extent that the employer concluded he did, and from the first moment he could, Mr. Dekort acknowledged his wrongdoing and expressed a desire to improve. I have considered the fact that discipline that had occurred 2 years earlier might have influenced the Warden’s decision to terminate the grievor. I have considered that the disciplinary process did not engage Mr. Dekort beyond a 10-minute fact-finding meeting and that no investigation took place, despite Mr. Dekort’s 9-plus years of service.

[225]  I have concluded that termination was an excessive disciplinary action in this case and that it should be replaced with a lengthy suspension. I believe that Mr. Dekort has learned his lesson, which will enhance his ability to serve as a correctional officer and will restore the bond of trust. I believe that the lengthy suspension will serve as a strong message of deterrence for the correctional officer community.

[226]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VIII. Order

[227]  The grievance is upheld in part.

[228]  The grievor is to be reinstated to his position effective the date of signing of this decision, without any retroactive pay.

July 17, 2019.

David Orfald,

a panel of the Federal Public Sector Labour Relations and Employment Board