Correction officer fired, reinstated after hiding impaired driving charge (Legal View)

Woman breached policy requiring disclosure of criminal charges for two years
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 10/20/2015

An Ontario correctional officer who was fired for not telling her employer about a drunk-driving charge has been reinstated with a suspension by the Ontario Grievance Settlement Board.


Camila Lunario, 32, was a correctional officer for the province of Ontario. Hired in 2006, she worked at a few different facilities in the Greater Toronto Area including the Toronto Jail, ending up at the Toronto South Detention Centre in December 2013.


Lunario and all other correctional officers were made aware of the Ministry of Community Safety and Correctional Affairs policies, including standing orders that they must immediately report any criminal charges against them so the ministry could determine whether the charges put the officer in a potential conflict of interest. In addition, correctional officers were also peace officers with powers of arrest, so it was important for the employer to be aware of any potential issues that could arise from charges.


The ministry’s policy and procedures manual also clearly indicated “employees are expected to conduct themselves in a responsible and law-abiding manner, both in the performance of their duties and in their personal lives.” The manual stipulated an employee must notify the superintendent in writing “without delay” — accepted as within 24 to 48 hours — about criminal charges against the employee. Once notified, the superintendent could decide on disciplinary action, job reassignment, a leave of absence, or no action, depending on the circumstances.


On Dec. 15, 2011, Lunario was out with friends at a bar. It was the first time she had been out socially since she had broken up with her boyfriend and she hadn’t planned to drink much. However, over the course of the evening, she ended up drinking more than she had expected. She drove home shortly before three o’clock in the morning and was stopped by police. A breath sample revealed her blood-alcohol level to be significantly over the legal limit, so police suspended her driver’s licence for three months and impounded her vehicle for seven days. She was also charged with impaired driving — a criminal offence.


Employee too ashamed to reveal charges

Lunario had been transferred to the Toronto Jail only 10 days before the incident, so she didn’t feel she knew anyone at the facility. She also felt “shamed and embarrassed” and was afraid if she told anyone, the news would spread, violating her privacy. She didn’t tell anyone about the criminal charges — either at work or in her personal life, including her family.


Lunario’s ex-boyfriend drove her to and from work every day while her licence was suspended, so her work was uninterrupted. She held out hope her charge might be reduced to careless driving — which is not a criminal charge — since it was her first offence. She also stopped drinking alcohol and coffee and quit smoking. She participated in an Alcoholics Anonymous treatment program as well as counselling through the ministry’s employee assistance program.


Lunario transferred to the Toronto South Detention Centre on Dec. 9, 2013. Soon after, her lawyer informed her the charges could not be reduced to careless driving, so she decided to plead guilty at her next court appearance on Jan. 10, 2014. She also decided at that point to inform her bosses of the charges.


Lunario met with the deputy superintendent and a co-worker on Dec. 19. Because Lunario expected her driver’s licence to be suspended for up to one year as a result of the conviction, she asked the co-worker to stay at her house so she could drive her to and from work each day. Because of this arrangement, she asked the deputy superintendent if she could be accommodated by scheduling her and the co-worker on the same shifts. Lunario acknowledged  she was wrong in not reporting the charges when they were laid two years earlier and apologized.


The deputy superintendent submitted an occurrence report about Lunario’s disclosure and Lunario herself wrote one of her own, explaining that she was going through a lot of stress at the time of the charges and she thought they might be reduced. She accepted full responsibility and indicated she had stopped drinking and sought treatment.


Lunario was suspended for five days with pay while the ministry investigated. After that, she was on vacation leave over the Christmas and New Year’s period. During this time, one of her co-workers texted her about rumours at work of her suspension, which Lunario felt confirmed her privacy concerns.


After pleading guilty on Jan. 10, 2014, Lunario was convicted and sentenced to a $1,200 fine, as well as banned from driving for 12 months. Lunario agreed to participate in an education and counselling program for first-time offenders, which reduced the driving ban to six months. She also had to equip her vehicle with a breathalyzer device that prevented its operation if the driver exceeded blood-alcohol limits.


Employee fired after pleading guilty

The director determined Lunario’s employment should be terminated for knowingly breaching the ministry’s requirement to report her criminal charges and, therefore, its trust. The length of time that she continued to fail to report — two years — raised the seriousness of the misconduct to warrant dismissal, as far as the ministry was concerned.


The board accepted Lunario was guilty of “an act of dishonesty” by failing to notify her employer about her impaired driving charge in a timely manner and this was compounded by continuing to keep the ministry in the dark regarding the progress of her case through the courts, despite the fact she knew about the policies on the matter.


However, the board noted that while employee honesty was “an important element in a viable employment relationship,” it didn’t necessarily mean dismissal should be automatic. The key consideration was whether the dishonesty “gave rise to a breakdown of the employment relationship,” said the board.


The board pointed to previous decisions that outlined an analysis to determine if employee dishonesty was worthy of dismissal. The first step was whether the nature and extent of the employee’s misconduct was incompatible with the “core of the employment relationship.” In this case, Lunario’s failure to disclose her criminal charge in a timely manner was a violation of employment policies and a standing order, but it wasn’t directly related to the performance of her duties. 


Lunario made an error in judgment that was based on her privacy concerns and uncertainty of whether she could trust people in her new place of employment — concerns that seemed valid when a co-worker informed her of rumours about her suspension. In addition, the misconduct was isolated and arose out of her shame and embarrassment. 


The board found Lunario’s breach of the policy wasn’t incompatible with her duties and she could be “worthy of continuing trust to perform her essential employment duties as a correctional officer.”


The last step of the analysis was to determine whether the misconduct warranted dismissal. Several factors weighed in Lunario’s favour — the motivation for her failing to disclose the charges, her acknowledgment of her misconduct and remorse, her efforts to get her life back on track following the charges, her belief the charges might be reduced, and the fact that even though it was two years later, she still brought it to the ministry’s attention.


The board found the employment relationship was not irreparably damaged and Lunario could be trusted to do her job going forward. The ministry was ordered to reinstate Lunario with a 20-day suspension without pay — the maximum disciplinary penalty permitted. 


For more information see:

• OPSEU (Lunario) and Ontario (Ministry of Community Safety and Correctional Services), Re, 2015 CarswellOnt 13426 (Ont. Grievance Settlement Bd.).


Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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