Canadian Employment Law Today

6 | November 11, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends mine 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 is- sues that could arise from charges. e ministry's policy and procedures manual also clearly indicated that "employ- ees are expected to conduct themselves in a responsible and law-abiding manner, both in the performance of their duties and in their personal lives." e manual stipulated that an employee must notify the superintendent in writing "without delay" — accepted to be within 24 to 48 hours — about criminal charges against the employee. Once noti- fied, the superintendent 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 first time she had been out socially since she had recently end- ed a relationship and she hadn't planned to drink much. However, over the course of the evening, she ended up drinking more than she had expected. However, she still drove home and shortly before 3 a.m., she 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 im- pounded her vehicle for seven days. She was also charged with impaired driving — which was 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 claimed she was skeptical that she could trust anyone, so 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 she was still able to get to work every day. She held out hope her charge might be reduced to careless driving — which was not a criminal charge — since it was her first offence and her lawyer thought it was a possibility. She also stopped drink- ing alcohol and coffee and quit smoking in the wake of her charges. In addition, she participated in an Alcoholics Anonymous treatment program and sought 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 de- cided at that point to inform her employer of the charges. Lunario met with the deputy superinten- dent with 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 ar- rangement, she asked the deputy superin- tendent if she could be accommodated by scheduling her and the co-worker on the same shifts. Lunario acknowledged that she had been wrong in not reporting the charges when they were laid two years earlier and apologized. e deputy superintendent submitted an occurrence report about Lunario's dis- closure and Lunario 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 accept- ed full responsibility and indicated she had stopped drinking and smoking and sought treatment. Lunario was suspended for five days with pay while the ministry investigated. Af- ter 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 be- fore the suspension had been issued, which to her confirmed her privacy concerns at the time of her charges. 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 a education and counselling program for first-time offenders, which reduced the driv- ing ban to six months. She also had to equip her vehicle with a breathalyzer device that prevented its operation if the driver exceed- ed blood-alcohol limits. Employee fired after pleading guilty to impaired driving e director determined Lunario's employ- ment should be terminated for knowingly breaching the ministry's requirement to re- port her criminal charges and therefore its trust. e length of time which she contin- ued to fail to report — two years — raised the seriousness of the misconduct to war- rant dismissal, as far as the ministry was concerned. e board accepted that 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 "clear and reason- able employer policies and standing order on the matter." However, the board noted that while employee honesty was "an important ele- ment in a viable employment relationship," it didn't necessarily mean dismissal should be automatic. e key consideration was whether the dishonesty "gave rise to a break- down of the employment relationship," said the board. e board pointed to previous decisions that outlined an analysis to determine if em- ployee dishonesty was worthy of dismissal. e first step was whether the nature and extent of the employee's misconduct was incompatible with the "core of the employ- ment relationship." In this case, Lunario's failure to disclose her criminal charge in a timely manner was a violation of employ- ment policies and a standing order, but it wasn't directly related to the performance of her duties as a correctional officer. Lunario made an error in judgment that was based on her concerns for privacy and uncertain- ty 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. e board found Lunario's breach of the pol- icy wasn't incompatible with her duties and she could be "worthy of continuing trust to perform her essential employment duties as a correctional officer." e last step of the analysis was to deter- mine whether the misconduct warranted dismissal. Several factors weighed in Lu- nario's favour — the motivation for her fail- ing to disclose the charges, her acknowledg- ment of her misconduct and remorse when she finally did, 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 herself. e board found the employment rela- tionship was not irreparably damaged and Lunario could be trusted to do her job go- ing forward. 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 Ser- vices), Re, 2015 CarswellOnt 13426 (Ont. Grievance Settlement Bd.). « from CORRECTIONAL on page 1 Employee came forward after conviction 2 years later

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