Canadian HR Reporter

CANADIAN HR REPORTER October 19, 2015 EMPLOYMENT LAW 5 Jeff rey Smith Legal VieW Correction offi cer fi red, reinstated after hiding impaired driving charge Woman breached policy requiring disclosure of criminal charges for two years An Ontario correctional offi cer who was fi red for not telling her employer about a drunk-driving charge has been reinstated with a suspension by the Ontario Griev- ance Settlement Board. Camila Lunario, 32, was a cor- rectional offi cer for the province of Ontario. Hired in 2006, she worked at a few diff erent facili- ties in the Greater Toronto Area including the Toronto Jail, ending up at the Toronto South Deten- tion Centre in December 2013. Lunario and all other correc- tional offi cers were made aware of the Ministry of Community Safety and Correctional Aff airs policies, including standing orders that they must immediately report any criminal charges against them so the ministry could determine whether the charges put the of- fi cer in a potential confl ict of in- terest. In addition, correctional offi cers were also peace offi cers with powers of arrest, so it was important for the employer to be aware of any potential issues that could arise from charges. e ministry's policy and pro- cedures manual also clearly indi- cated "employees are expected to conduct themselves in a responsi- ble and law-abiding manner, both in the performance of their duties and in their personal lives." e manual stipulated an employee must notify the superintendent in writing "without delay" — ac- cepted as within 24 to 48 hours — about criminal charges against the employee. Once notifi ed, the su- perintendent could decide on dis- ciplinary 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 fi rst 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 po- lice. A breath sample revealed her blood-alcohol level to be signifi - cantly over the legal limit, so po- lice suspended her driver's licence for three months and impounded her vehicle for seven days. She was also charged with impaired driv- ing — a criminal off ence. Employee too ashamed to reveal charges Lunario had been transferred to the Toronto Jail only 10 days be- fore the incident, so she didn't feel she knew anyone at the facility. She also felt "shamed and embar- rassed" 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 crimi- nal charge — since it was her fi rst off ence. She also stopped drink- ing alcohol and coff ee 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 To- ronto 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 appear- ance on Jan. 10, 2014. She also de- cided 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 ex- pected 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 ar- rangement, she asked the deputy superintendent if she could be ac- commodated 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 fi ve days with pay while the minis- try 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 confi rmed her pri- vacy concerns. After pleading guilty on Jan. 10, 2014, Lunario was convicted and sentenced to a $1,200 fi ne, as well as banned from driving for 12 months. Lunario agreed to partic- ipate in an education and counsel- ling program for fi rst-time off end- ers, which reduced the driving ban to six months. She also had to equip her vehicle with a breatha- lyzer device that prevented its operation if the driver exceeded blood-alcohol limits. Employee fi red after pleading guilty e director determined Lunar- io's employment should be ter- minated for knowingly breach- ing the ministry's requirement to report her criminal charges and, therefore, its trust. e 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 re- garding 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 em- ployment relationship," it didn't necessarily mean dismissal should be automatic. e key consider- ation was whether the dishonesty "gave rise to a breakdown of the employment relationship," said the board. e board pointed to previous decisions that outlined an analysis to determine if employee dishon- esty was worthy of dismissal. e fi rst step was whether the nature and extent of the employee's mis- conduct was incompatible with the "core of the employment re- lationship." 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 perfor- mance of her duties. Lunario made an error in judg- ment that was based on her pri- vacy 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 ru- mours about her suspension. In addition, the misconduct was iso- lated and arose out of her shame and embarrassment. The board found Lunario's breach of the policy wasn't in- compatible with her duties and she could be "worthy of continu- ing trust to perform her essential employment duties as a correc- tional offi cer." e 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 eff orts 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. e board found the employ- ment relationship was not irrepa- rably damaged and Lunario could be trusted to do her job going for- ward. e 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.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. The direct supervision living unit at the Toronto South Detention Centre. A correctional officer was fired recently after admitting to criminal charges, but was subsequently reinstated with a 20-day suspension by the Ontario Grievance Settlement Board. Credit: Fred Thornhill (Reuters) e board noted that while employee honesty was an important element in an employment relationship, it didn't mean dismissal should be automatic. COMPENSATION (416) 498-7800 ext. 1 www.resourcecorporation.com Compensation Surveys Incentive Programs Job Descriptions Job Evaluation Pay Equity Performance Appraisal Salary Administration Sales Compensation CONSULTING

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