December 7, 2015
The Ministry of Community Safety and Correctional Services (the “Employer”) terminated the employment of a correctional officer (the “Employee”) with approximately seven years of service after it was discovered that she failed to immediately disclose that she had been charged under the Criminal Code with impaired driving while off-duty. The Employer took the position that the Employee’s disclosure of the charge two years after the fact violated the Employer’s policies and her standing orders. The Employee’s union, OPSEU (the “Union”), took the position that although the failure to report the charges in a timely manner was a serious breach of policy worthy of some discipline, termination of employment was too severe in the circumstances.
During the arbitration hearing, the Union called evidence establishing that the charge (and accompanying license suspension) did not negatively impact on the Employee’s ability to actually perform her job. The Union explained that the charge coincided with a tumultuous time in the Employee’s life. She had just transferred to a new correctional facility after being off work on stress leave attributed to unsubstantiated claims of harassment by a supervisor. She was ashamed and embarrassed about the charge and was afraid of everyone in her new workplace finding out. Given the supervisor she complained about had also just been transferred to her new workplace, the Union explained that the Employee was justifiably skeptical of who to trust. She was also hesitant to immediately disclose the charge because she had been told by her lawyer that the charge might be reduced to careless driving. Although the Union did not take the positon that the Employee suffered from an alcohol dependency, it did lead evidence to establish that the criminal charge was an immediate wake-up call for the Employee that resulted in her quitting drinking and smoking and becoming more active in her Church.
The Employer took the position that honesty and trust were fundamental to the employment of a “peace officer” that is responsible for enforcing rules of the criminal justice system and that correctional officers are properly held to a high standard of ethical conduct. The Employer then argued that the Employee’s initial and continued failure to make timely disclosure of the charge was so incompatible with her employment that termination was the only reasonable disciplinary response. The Union, on the other hand, argued that termination was disproportionately harsh in the circumstances given the Employee’s genuine apology, remorse and positive rehabilitation prior to any discipline ever being imposed.
In coming to his conclusions, the arbitrator noted that any decision required a balancing of competing interests – those being the Employer’s legitimate business interests and the Employee’s economic well-being and emotional self-worth which were inextricably tied to her employment. Following the Supreme Court of Canada’s decision in Mckinley v. BC Tel, which requires a trier of fact to assess whether something short of termination can reasonably address instances of workplace dishonesty, the arbitrator concluded that termination was inappropriate. Instead, the arbitrator concluded that the dishonesty was worthy of a twenty day suspension. In reaching this conclusion, the arbitrator reinstated the correctional officer’s employment without any loss of seniority and awarded back pay retroactive to the first day of hearing in the arbitration, which amounted to just over one years’ worth of wages.
This decision is a further reminder to all employers that they should always give very serious consideration to disciplinary responses short of termination when attempting to address instances of workplace dishonesty because failing to do so can prove costly.
OPSEU (Lunario) v. Ministry of Community Safety and Correctional Services, 2015 CanLII 60425 (ON GSB)