Ontario Div. Ct. Overturns Whacky Arbitration Decision: No Return to Work for Exhibitionist

The Ontario Divisional Court has overturned a controversial arbitration decision.  In January 2013, an arbitrator ordered an exhibitionist Transportation Enforcement Officer back to work after he had been criminally convicted of committing indecent acts in public.  The grievor had been conditionally discharged of his criminal counts.  We wrote about the decision here.

The officer had been arrested for masturbating in public near a girls’ school.  He was discharged by his employer for just cause.  The case went to arbitration and the arbitrator, Loretta Mikus, somehow concluded that the officer would not be impeded from performing his duties, despite that fact that he had been convicted and conditionally discharged of these counts of public indecency.   The grievor had only been with the MTO at the time for approximately two years.

Not surprisingly, the Crown brought an application for judicial review.  In a decision released on December 10, 2013 in Ontario (Transportation) v. OPSEU (2013 ONSC 7227), a three judge panel of the Ontario Divisional Court unanimously overturned the arbitrator’s decision.

The Divisional Court disagreed with a number of the key findings of the arbitrator and quashed the decision for several reasons:

1.  The arbitrator had incorrectly misstated the likelihood of the grievor re-offending.  The Divisional Court cited the evidence of Dr. Dickey (actual name) that the long term prognosis was “at least a moderate risk of re-offence.”  The arbitrator had downplayed this risk;

2.  The Divisional Court held that the grievor’s conduct would clearly damage the employer’s reputation and the arbitrator had diminished this factor;

3.  It was unreasonable for the arbitrator to conclude that the grievor could perform his duties satisfactorily as he would be required to give credible evidence in court.  His ability to do this would be significantly compromised.

4.  There was evidence that other employees would be reluctant or unwilling to work with the grievor if he was reinstated.  The Divisional Court noted that it would be perfectly understandable that female employees would be reluctant to work with this grievor.

5.  The arbitrator improperly diminished the seriousness of the criminal charges that the grievor had faced and the conduct for which he had been charged.

6.  The arbitrator understated the effect on workplace morale and the knowledge of the other employees of the events in question.

In a scathing attack on the arbitrator’s decision, the Divisional Court had this to say in summary:

“…the Board unreasonably diminished the Millhaven criteria, erroneously interpreted or ignored relevant evidence, and understated the importance of the grievor’s conduct in the context of his work as a TEO.  This led the Board to unreasonably conclude that termination was not appropriate.”

Accordingly, the Divisional Court overturned the arbitrator’s decision and upheld the MTO decision to discharge the grievor for just cause.

While it is generally quite difficult to review an arbitrator’s decision successfully in the labour context, this case demonstrates that whacky decisions can be overturned.  As the Divisional Court concluded, it would be unreasonable for the Ontario Ministry of Transportation to be expected to continue to employ an inspection officer who might, at any time, hand out something other than tickets and fines.

It would now be up to the union to decide whether to try and have this case appealed to the Ontario Court of Appeal.  It seems that the likelihood of success would be quite minimal, given the cogent and detailed reasons of the Divisional Court.







Crown Employee Performing Indecent Acts: Ordered Back to Work

When is off-duty conduct considered “just cause” for termination of employment?  This was the question that an arbitrator of the Ontario Grievance Settlement Board recently answered.  The case, Ontario Public Service Employees Union (Richard) and The Crown in right of Ontario (Ministry of Transportation) (GSB#2010-2164), illustrates the high level of misconduct that unionized employers must demonstrate in order to uphold the dismissal of an employee.

In this case, a Transportation Enforcement Officer was convicted of two counts of Performing Indecent Acts.  The employee was dismissed for just cause.  The dismissed two-year employee was caught masturbating in public, on an outdoor trail in the Welland area, near a girls’ school.  Two young girls witnessed the incidents and were “traumatized.”  The grievor was not on duty at the time and was not in uniform…in fact, apparently, he was not actually wearing anything.

At the time of his arrest, and at the hearing of this matter, the grievor maintained that he harboured some animosity towards women and towards his ex-girlfriend in particular.  He was not able to provide any genuine reassurance that this conduct would not continue.  He admitted to ten previous incidents of performing indecent acts, but he had only be charged with four counts and was only convicted on two of these charges.  The grievor, of course, would be regularly required to work with women in his job, including co-employees, police officers and members of the public.  He argued that he should be reinstated and that the employer’s decision to fire for just cause should be overturned.

Arbitrator Loretta Mikus noted that the grievor chose an area that was near a girls’ school and would likely encounter young girls.  However, she found that there was no evidence that he actually assaulted anyone or that he was in possession of any kind of child pornography.  Apparently, he was acting alone at the time he was caught in the act, red-handed.  Moreover, neither the public, nor the employee’s co-workers knew about the case, which was not publicized widely.

At his criminal trial, the grievor was given a conditional discharge of his criminal convictions with a three year probation, including a condition that he stay off of any recreational waterway trails.  The arbitrator held that these acts were at the “lesser” end of acts attracting criminal sanction and that the probationary restrictions would not impede the grievor from being able to perform the duties of his job.

Ultimately, the arbitrator ordered that the grievor be returned to work without back pay.  The grievor had been first suspended in 2008 and had been on a paid leave of absence until the time of his criminal trial in 2010.  After pleading guilty, he was placed on a leave without pay by his employer for almost three years.  As a result of the arbitrator’s award, he has now been ordered back to work without any of the three years’ back pay.

Counsel for the Ministry argued that this kind of case might be quite distasteful for most members of the public who would have thought that this kind of off-duty conduct would be incompatible with the duties and responsibilities of an Enforcement Officer who is required to enforce and uphold the law.  However, the arbitrator felt that the grievor deserved a “second chance” even though he had only been with the Ministry for approximately two years.  This conduct was not “just cause.”

It remains to be seen whether the Ministry will seek judicial review of the decision.  To date, it is probably fortunate for the grievor that the case has not had nearly as much public exposure as his private parts.




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