A single conviction for domestic violence merits the employer’s attention, but it does not permanently destroy the employee’s ability to perform his work effectively. Nor does the employer’s zero-tolerance policy mean it must fire him.
A correctional services officer was fired after being convicted of a domestic assault.
The employer said the termination was necessary because the worker’s conduct made it impossible for him to reflect and uphold the standards and responsibilities that are expected of Correctional Officers.
The union acknowledged that discipline was warranted but argued that discharge was too severe a penalty in view of all the circumstances.
The facts were not in dispute.
M.C. was a full-time Correctional Officer and a relief youth officer at a young offenders facility. He started as a Correctional Officer in 2003 and had a clean disciplinary record when he was arrested and charged on March 9, 2009 with assaulting his wife.
April 28, 2009, M.C. pleaded guilty to a single count of assault for punching his wife in the back of the head several times. It was established that M.C. was drunk at the time and that the alcohol he had consumed may have interacted with prescription medicine he was taking for insomnia. He received a conditional discharge and 12 months’ probation. He was directed to undergo counselling and to abstain from alcohol.
Recommendation for dismissal
A recommendation for his dismissal was delivered to M.C. on April 30. M.C. was invited to respond to the recommendation and suspended pending a final determination.
M.C. was fired on June 6. Adding to concerns about his character and trustworthiness outlined in the earlier recommendation for termination, the final letter also referenced concerns over his ability to properly exercise his responsibilities over offenders. The letter also noted concerns about the potential negative effect his continued employment could have on the reputation of the employer and the justice system.
Both the union and the employer agreed that Millhaven Fibres was the appropriate test to assess whether or not discipline was warranted for off-duty conduct.
According to Millhaven, discipline is warranted if any of the following five criteria are satisfied:
• the conduct of the grievor harms the Company’s reputation or product;
• the grievor’s behaviour renders the employee unable to perform his/her duties satisfactorily;
• the grievor’s behaviour leads to refusal, reluctance or inability of other employees to work with him/her;
• the grievor has been guilty of a serious breach of the Criminal Code thus rendering his/her conduct injurious to the general reputation of the Company and its employees; and,
• the conduct of the grievor places difficulty in the way of the Company carrying out its function of efficiently managing its Works and efficiently directing its working forces.
The union conceded that discipline was warranted but argued that termination was too harsh in view of the isolated nature of the incident and the efforts at rehabilitation undertaken by M.C.
The Arbitrator agreed.
Good reasons to terminate, but discharge too harsh
There were good reasons to terminate M.C., the Arbitrator said. However, there were also factors that supported a finding that discharge was too harsh.
The assault was an isolated event. M.C. had no criminal record and there was no suggestion that he had engaged in this type of behaviour before.
M.C. had pleaded guilty and accepted responsibility for his actions. He had also taken action to address family issues and his substance abuse problems through counselling and by living up to the terms of his probation.
Reports were that there was only minimal resistance from other correctional officers to his reinstatement and no solid evidence to indicate that his return would lead to particular difficulties with inmates.
While the employer’s “zero tolerance” campaign against family violence figured in the decision to terminate M.C., “zero tolerance” did not add up to automatic dismissal, the Arbitrator said. “I recognize the importance of the government’s campaign to prevent family violence — without question, spousal abuse is abhorrent and everything that can be done to reduce its incidence ought to be supported. At the same time, there was no evidence that this zero tolerance policy was formally announced to employees along with the likely consequences for violating the policy.”
The employer’s Code of Ethics provided a range of possible sanctions for major transgressions, including oral and written reprimands. Certain kinds of one-time conduct — armed robbery or manslaughter, for example — could warrant immediate dismissal, the Arbitrator said, but the employer had not made a compelling case to put M.C. in that category.
Not all positions of trust equal
It was true that as a Correctional Officer, M.C. was considered a “peace officer” and was therefore accountable for upholding a high standard of conduct. However, “not all positions of trust are created equal,” the Arbitrator said.
“Correctional officers do not hold the same degree of trust expected of judicial officers and justices of peace … Conduct that may properly cost the holder of a judicial office her job may not necessarily have the same consequences for a correctional officer.”
Other mitigating factors also counted in M.C.’s favour. He had six years of discipline-free service with his employer. He was also an Inuktitut speaker who was pursuing a criminal justice degree in university.
In all, the Arbitrator said, “the balance tips in favour of reinstatement. It is my conclusion that the penalty of discharge is too severe in all the circumstances.”
The discharge was set aside and substituted with a six-month suspension.
