Shandera v. Deputy Head (Correctional Service of Canada)



Public Service Labour Relations
and Employment Board Act and
Public Service Labour Relations Act

Coat of Arms - Armoiries
  • Date:  20170317
  • File:  566-02-8290
  • Citation:  2017 PSLREB 26

Before a panel of the Public Service Labour Relations and Employment Board


BETWEEN

NATHAN SHANDERA

Grievor

and

DEPUTY HEAD
(Correctional Service of Canada)

Respondent

Indexed as
Shandera v. Deputy Head (Correctional Service of Canada)


In the matter of an individual grievance referred to adjudication


Before:
David Olsen, a panel of the Public Service Labour Relations and Employment Board
For the Grievor:
Nathan Shandera and Tanya Shandera
For the Respondent:
Richard Fader, counsel
Heard at Calgary, Alberta,
March 1 to 4, 2016.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        The grievor, Nathan Shandera, was employed by the Correctional Service of Canada (CSC or “the respondent”) as a correctional manager at the Drumheller Institution (“the Institution”) in Drumheller, Alberta. He had 10 years of good performance evaluations and no disciplinary record. It is alleged that he entered the vault in the Institution’s finance department without authorization and that he stole approximately $1000 in cash in September 2011. It is also alleged that he removed two JVC Everio video cameras (“the cameras”) from the Institution without authorization during the same period and that he then sold them on the online auction website, eBay.

2        On January 25, 2013, the grievor grieved that his termination of employment was incorrect, unlawful, and without consideration for the facts presented (that it was malicious and excessive). He stated that all criminal charges had been dismissed and that the statement that he did not show remorse was incorrect and invalid, as he had accepted his wrongdoing. He claimed that the disciplinary report used for his termination was not based on facts, but rather on a balance of probabilities and on opinions and that it ignored and omitted facts to substantiate opinions of guilt.

3        As corrective action, he sought that a proper investigation be carried out, that he be reinstated to his employment with damages awarded since the termination was excessive, that the CSC recognize that a mental health disability occurred before he was suspended and offer appropriate assistance as required, and that he be relocated somewhere other than where he was terminated because the CSC irreparably damaged his integrity and character due to false allegations.

4        At the hearing, the grievor advised the Public Service Labour Relations and Employment Board (“the Board”) that he was no longer seeking reinstatement, but instead a public apology from the CSC for the termination.

5        The grievor requested a sealing order for a medical report and a CD which includes his interviews. The proceedings of this Board, and the documentation related to those proceedings, are generally accessible to the public. The open court principle has been discussed in numerous Board decisions and decisions on judicial review. Any departure from this principle by granting a request such as that made here to seal exhibits must be rationalized by reference to the Dagenais/Mentuck test (in reference to Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835 and R. v. Mentuck, [2001] 3 SCR 442 . In Canadian Broadcasting Corporation v. The Queen, 2011 SCC 3, the Supreme Court of Canada held that this test is applicable to all discretionary decisions affecting the openness of proceedings.

6        In Pajic v. Statistical Survey Operations, 2012 PSLRB 70, the adjudicator described the nature of the Dagenais/Mentuck test as follows at paragraph 9:

… The rule is that Court and quasi-judicial tribunal proceedings are public and documents that are on the record of those proceedings, such as exhibits, are also public. However, a Court or a quasi-judicial tribunal may impose limits on the accessibility to their proceedings or record in certain circumstances, where in its view the principle of open justice should give way to a greater need to protect another important right. In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, the Supreme Court of Canada reformulated the Dagenais/Mentuck test as follows:

  1. such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
  2. the salutary effects of the … order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

7        The test requires that I carefully consider whether the interest of the public in the transparency of the proceedings conducted by the Board is outweighed by a competing interest – in this case the privacy of the grievor.

8        I have concluded that the interest of the grievor in protecting his personal medical information outweighs the value of exposing this information. The exhibits that would be covered by the sealing order contain information related to the grievor.

9        I have concluded that the request for a sealing order should be granted.

10        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Board to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

11        The respondent called the following seven witnesses: Helen Treller, correctional program officer at the Institution; Mike Maxwell, constable, Drumheller Royal Canadian Mounted Police (RCMP) detachment; Nancy Shore, acting deputy warden, Bowden Institution, in Innisfail, Alberta, and the chairperson of the board that investigated the circumstances of the grievor’s alleged activities (“the board of investigation”); Nicole Green-Broad, a finance specialist classified CR-05; Linda Volb, also a finance specialist classified CR-05 at the Institution; Jackie Baker, administrative assistant to the security intelligence officer, classified CR-04; Travis Baker, correctional manager of operations at the Institution; and Darcy Emann, acting warden at the Institution.

12        The grievor did not call witnesses and did not testify. He tendered two binders of documents together with two compact discs (CDs) as evidence, with the employer’s consent.

13        The employer had the onus to establish on a balance of probabilities that it was more likely than not that the grievor stole the two cameras as well as approximately $1000 from the Institution’s vault and finance office.

A. For the employer

1. Evidence relating to the allegation that the grievor stole the two cameras

a. Ms. Treller

14        Ms. Treller has held the position of correctional program officer for 12 years. She delivers a family violence program. She is a co-worker of the grievor, a person she held in high respect. If she had questions, she always received good, firm answers from him.

15        She described the relative location of the buildings on a site plan of the Institution and in particular the administration building, where the switchboard and the correctional manager’s office are located, and another building, where the finance office is located. These offices are approximately 40 to 50 metres apart. It would take approximately 30 seconds to walk this distance.

16        The building where the finance office is located has two floors. The finance office and the vault are located on the second floor. On the main floor are classrooms where correctional programs are given to inmates.

17        Ms. Treller delivers her program to inmates on the first floor. At the back of that room is a storage closet in which are stored extra supplies, binders, and a television. She testified that two JVC Everio video cameras were also stored in that locked storage closet.

18        She located the finance office, which occupies a large portion of the second floor, and in particular the vault area, which is located in area 219 on the floor plan in the Institution’s site plan.

19        She was asked whether correctional officers would have access to the keys to the storage area in her classroom. She stated that they would if they were taken from the administration building. She volunteered that correctional managers have a master set of keys but then stated that she was not certain.

20        She stated that six JVC Everio video cameras and three Sony cameras were purchased in 2011. She used cameras to record her sessions for quality assurance.

21        She stated that she was in charge of updating the technological devices used at the Institution and that in 2011, she gave a demand purchase voucher to the manager, Michael Smith, who purchased the cameras from Sears Canada on March 17, 2011, through the “Oracle I” purchase system. The cameras were delivered to him, and he in turn gave them to her. She kept them in her locked storage room.

22        On September 26, 2011, a co-worker requested an SD card to tape a session. The cards were kept in the same storage room where the cameras were located. Once the room was unlocked and she entered, she could not find any SD cards. She sought Mr. Smith, who had a master key, to see if he had removed them. She then checked to determine whether anything else was missing and found that in addition to the missing SD cards, two JVC Everio video cameras and a Sony DVD burner were also missing.

23        Ms. Treller stated that the purchasing department had not tagged the cameras but that she had made a record of their serial numbers when they were purchased.

24        She was angry at the idea that a fellow staff member could have taken the equipment. Mr. Smith advised her that something was missing from the finance department as well.

25        She testified that later that evening, she started thinking about the two cameras and recalled that they were brand new and in their original boxes. She thought they could be sold.

26        She went to her computer, searched on eBay, and found cameras like those that were removed from the storage room listed for sale by a vendor in Airdrie, Alberta, a town 15 minutes north of Calgary, Alberta, and one hour west of Drumheller, by someone using the username “CX Guy 2010”. She stated that “CX” is the correctional officer job classification.

27        That evening, she telephoned Tom Campbell, the Institution’s security intelligence officer, and forwarded the eBay link to him. Later on, she was interviewed by Constable Maxwell and institutional security.

28        On September 27, 2011, she completed an “officer statement/observation report” (OS/OR) listing the missing equipment, including eight SD cards, the two cameras, and a DVD recorder. She also provided the cameras’ serial numbers and their cost. Because the camera’s serial numbers had not been entered into the inventory control system, she had recorded them. No serial number was available for the DVD recorder.

29        She was subsequently interviewed by the board of investigation.

30        She also introduced the bill from Sears dated March 31, 2011, showing the purchase of five electronic cameras. A sixth had been received earlier. Also filed was a statement of account, one item of which is dated March 18, 2011, listing as a purchaser “M. Smith” for electronics in the amount of $1537, which included the cameras at issue.

31        The cameras were returned to the Institution approximately 18 months before the hearing.

32        In cross-examination, Ms. Treller was asked if she knew when the cameras went missing. She answered that she did not. She was asked if they could have been put on sale. She answered in the affirmative. She was asked for the missing receipt for the sixth camera.

33        She was asked whether she worked in the purchasing department. She answered that she did not and acknowledged that she was not an expert in purchasing.

34        Keys are kept in the main control area of the administration building. She acknowledged that any officer could have taken the keys from there as there is no key lock. The main control area has an officer posted there 24 hours per day.

35        She acknowledged that the board of investigation concluded that she should have completed another OS/OR report.

b. Constable Maxwell

36        Constable Maxwell has been employed by the RCMP for approximately nine years. The Drumheller detachment has a two-man general investigation section that is designated as the liaison to the Institution.

37        On September 26, 2011, his supervisor advised him that the Institution had reported an internal theft of approximately $1000. He was assigned as the investigation lead.

38        The investigation brought to light that other items were discovered missing on September 27, 2011, including the two cameras. Upon investigating the area where they had been housed, which was in a storage room behind a heavy locked door, he observed that there was no sign of forced entry. He ascertained that the last time employees had actually observed the two cameras in the room was some time in August 2011.

39        An employee who had been reviewing the facility’s video surveillance advised him that a correctional manager had been observed going into the building where the finance  office is located on the weekend of September 23, 2011. In particular, the individual was observed entering the finance building at 21:48 on September 23 and exiting at 22:13. The surveillance cameras are on different systems, which have different timestamps. The correctional manager was identified as the grievor. He was observed entering the building with nothing under his arm and exiting with something under his arm.

40        On September 30, 2011, Constable Maxwell met with the Institution’s acting warden, Tracy Farmer, who showed him a printed page from eBay containing a person identified in the ad as “CX Guy 2010” selling cameras like the missing ones. Mr. Farmer showed him a profile of that person. It included a picture of Mr. Shandera.

41        On October 5, 2011, the Drumheller RCMP detachment purchased one of the cameras advertised for sale on eBay. A sergeant using his own name purchased it from CX Guy 2010 and had it shipped to an RCMP corporal in Calgary.

42        On October 6, 2011, Constable Maxwell spoke with the Corporal and confirmed that the serial number on the camera matched a missing camera from the Institution.

43        Constable Maxwell then drove to Calgary, met with the corporal, picked up the camera, and locked it into the exhibit system. After the criminal process was completed, it was returned to the Institution. It was shown to the Board but was not retained as evidence.

44        On October 11, 2011, Constable Maxwell telephoned Mr. Shandera and advised him of the investigation related to the stolen property from the Institution. Mr. Shandera advised him that he knew about the investigation and asked if he was going to be charged criminally. Constable Maxwell asked Mr. Shandera to meet him at the Airdrie RCMP detachment. He was advised that he would be arrested but that he would not be detained in custody. Mr. Shandera advised him that he had already retained counsel and did not wish to comment.

45        Mr. Shandera went to the Airdrie RCMP detachment at 13:00. He was formally arrested and charged with theft under $5000 and with possession of stolen property. Constable Maxwell read Mr. Shandera his section 10 (right to counsel) Charter rights (from the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 10) and advised him that he did not have to tell him anything but that anything he did say could be used against him.

46        Constable Maxwell told Mr. Shandera that there was no doubt in his mind that he had taken the money and the cameras. He showed him the key log, which detailed that he had taken the keys for the building, in which the finance department was located, and showed him the eBay ad for the cameras, which were being sold by CX Guy 2010.

47        Mr. Shandera acknowledged that he was CX Guy 2010. He also acknowledged that he sold the cameras on eBay. He stated that he had no idea that they were from the Institution. He knew where he had purchased them.

48        Constable Maxwell showed him the package that the camera was mailed in and told him that the grievor had sold it to a police officer. He also told the grievor that it had the same serial number as one camera stolen from the Institution.

49        Mr. Shandera again told Constable Maxwell that he had no idea that the camera was stolen and stated that he had had the cameras for over a month. He agreed that his fingerprints were on the camera. He agreed that he had shipped it. He told Constable Maxwell that he had purchased the cameras for $50 for his children from a man he identified as “Glenn” in a pickup truck at the Canadian Tire store in Drumheller. The vendor said that he had purchased them at an auction.

50        Constable Maxwell contacted eBay security, who advised him that the second camera had been sold to someone in Lévis, Quebec. It was confirmed that on October 22, 2011, the second camera had been shipped there. It was recovered. The second camera, with the serial number recorded by the Institution, was identified for the Board.

51        Constable Maxwell was asked what the CSC knew of his investigation. He stated that although a victim of crime is apprised of the investigation, he does not give the victim a disclosure package.

52        On January 25, 2013, Mr. Shandera appeared in provincial court. All charges against him were withdrawn, and the matter was dealt with by way of alternative measures.

53        Constable Maxwell was not given the receipts for the purchases of the cameras. He was assured that they were accounted for in the Institution’s accounting system.

54        He was asked whether there were any other suspects. He replied that at the beginning, he believed that it was someone from the finance department; however, the surveillance videos and the eBay advertisement led him to Mr. Shandera.

55        He acknowledged that the acting warden, Mr. Farmer, identified Mr. Shandera as the person selling video cameras on eBay and as the person seen entering the vault in the finance office in the surveillance video.

56        He acknowledged that at his interview, Mr. Shandera was distraught.

c. Ms. Shore

57        Ms. Shore has been the acting deputy warden at Bowden Institution since 2011. She became a federal correctional officer in 1995, and at the time of the investigation into the allegations concerning Mr. Shandera, she was the acting deputy warden at Bowden Institution.

58        On October 24, 2012, the acting warden of the Institution, Mr. Emann, requested the establishment of a board of investigation to investigate the circumstances surrounding the alleged activities of Correctional Manager Shandera. Ms. Shore was appointed to chair that board of investigation. Also appointed was Mark Otto, the acting director of Grierson Centre in Edmonton, Alberta.

59        Ms. Shore had never met Mr. Shandera personally but was aware that he was a correctional manager at the Institution.

60        She filed into evidence a copy of the board of investigation’s report.

61        The board of investigation made two site visits to the Institution to interview witnesses and review documents.

62        It interviewed Mr. Shandera on October 26, 2012. Ms. Shore testified that during the investigation, Mr. Shandera denied removing the cameras from the Institution. He advised the board of investigation that he purchased them from someone in the Drumheller Canadian Tire parking lot. He also advised that he felt he was being set up by Mr. Farmer, the deputy warden, and Mr. Campbell.

63        The board of investigation concluded that Mr. Shandera had probably removed the cameras from the Institution and had sold them using his eBay account. In its view, there was little likelihood that someone else had stolen them and had sold them to Mr. Shandera.

64        It was suggested that if the grievor had taken the cameras, it would have been difficult to get them out of the Institution as the exit post is staffed and has a metal detector. Ms. Shore replied that the exit post is not staffed during the midnight shift.

2. Evidence with respect to the allegation that grievor stole approximately $1000

a. Ms. Green-Broad

65        Ms. Green-Broad was employed as a CR-05 finance specialist at the CSC in 2011. She had started at the Institution as an accounts payable clerk and had then moved to inmate accounting. She left the CSC in 2013. She had no relationship with Mr. Shandera and had only heard of him.

66        In 2011, she worked in the finance office close to the vault area.

67        Finance personnel worked in open cubicles. The hours of operation for the finance office in 2011 were 08:00 to 16:00, Monday to Friday. The area was locked at all other times. The vault was locked just before the cashier left for the day even if other employees were still there.

68        There are two separate keys, one for the building and one for the vault, which the cashier maintained. The vault had a deadbolt and a separate key. It was open at all times when the finance office was open. If the cashier left for a break, the vault would remain open. Petty cash was kept in a cabinet drawer in the vault with its own separate key. The key and lock were not as robust as a deadbolt.

69        She recalled that on Friday, September 23, 2011, she acted as the cashier. The night before, she had counted the petty cash with the cashier, who was taking the next day off; it balanced.

70        To the best of her recollection, September 23, 2011, was a normal day. She was the only cashier present on that date. She did not count the petty cash flow before she went home as it is not required to be done every day.

71        She recalled that the petty cash likely consisted of one roll of $1 coins, one roll of $2 coins, and a number of $50 and $100 bills were in the drawer at the end of the day. She locked the drawer, turned out the light in the vault, and secured the deadbolt.

72        She took the cashier’s keys home with her. She did not return to the Institution over the weekend; nor did she share the keys with anyone.

73        On Monday, September 26, 2011, when she reported for work, everything looked normal. She opened the vault just before 08:00. She looked in the petty cash drawer and observed that the rolls of coins were missing as well as the $50 and $100 bills. She counted the cash. She estimated that just over $1000 was missing. She did not notice any forced entry to the vault. It was later determined by the Finance Department as reported in the Disciplinary Investigation Report that the exact amount of money missing from the cabinet drawer was $1,004.54.

74        She went to her supervisor and advised her of the situation. They then did a second count of the petty cash. The supervisor then reported the situation to her superior.

75        Besides herself, Ms. Volb and the chief of finance had access to the vault keys.

76        She was asked about a suggestion that there might have been a fourth set of keys to the vault, which she acknowledged was a rumour. The last time she remembered seeing a fourth set of keys was in 2007.

77        She was asked whether there was an inmate cleaning the finance office while the vault was open, which she confirmed. She stated that someone monitored the inmate at all times.

b. Ms. Volb

78        Ms. Volb is a finance specialist, classified CR-05, and has been employed by the CSC for 10 years. She is related to Mr. Shandera; they are second cousins. The last time she spoke with him was in 2011, while he was still an employee. At that time, she was employed in accounts payable at the Institution. She worked in the finance office.

79        Ms. Volb has a set of keys to the finance area that she keeps with her. On her key ring, she has a key for the front door, a key to the lunchroom, and a key to the finance area. The key to the front door also permits persons to access the program area on the first floor. There is a separate key for the vault. The cashier is responsible for the vault and retains the keys. Ms. Volb does not normally have a key to the vault.

80        Inside the vault is a wooden structure containing four drawers; the petty cash is kept in one, which has a lock. Normally, the cashier also keeps the key to that lock.

81        During the weekend of September 23 to 26, 2011, the acting finance analyst had a set of keys for the vault. She was to be absent on the next Monday, so when she left on the Friday, she gave Ms. Volb those keys. Ms. Volb put them in a drawer with her pens on the left side of her desk that did not have a lock. There are approximately 10 desks in the finance area. She left the office at 16:00 on the Friday and did not return over the weekend. When she returned on the Monday, the keys were in the drawer where she had placed them. She was asked in cross-examination whether she had intentionally left them for Mr. Shandera. She answered that she had not.

82        She acknowledged that an inmate cleaner worked in the finance area. Cleaning did not take place during work hours. Ms. Volb stated that presumably staff is in the area at all times when the inmate is cleaning. She had never seen an inmate cleaner go through people’s desks. She stated that inmate cleaners do not have keys to the building or the finance area.

c. Constable Maxwell

83        Constable Maxwell went to the Institution and learned from finance staff that approximately $1000 was missing from the petty cash fund that was kept in the vault. He checked the vault door; there was no evidence that it had been disturbed.

84        After speaking with the employees in the office, he determined that Joanne Hoff had been the last person to leave the finance area before the weekend at issue and that Ms. Green-Broad had been second last. On the following Monday morning, Ms. Green-Broad was the first person to enter the finance area.

85        Over the weekend, a key had been found outside the building where the finance office is located and was taken over to security. The Security Officer did not know who had found it. Constable Maxwell tried the key in all the vault’s drawers. It did not open any of them and was returned to security.

86        Security surveillance cameras cover the entrance and exit and the stairwell of the inmate entrance for the building where the finance office is located. They operate 24 hours per day.

87        The video monitor in the main control shows the stairwell in that building outside the finance area and the finance clerk’s window. Carl Campbell, Assistant Warden Operations, reviewed the video.

88        An external camera covers the entrance to the building where the finance office is located. Ms. Baker reviewed its video, but it was not retained.

89        Constable Maxwell seized the surveillance video covering the stairwell in this building and took it to a trained RCMP expert for review.

90        A report of the removal and return of the keys for the building was filed with the Board.

91        The surveillance video for the finance area inside the building was viewed during the hearing. The evidence from the three sources of internal cameras, the key system report and the testimony of Ms. Baker who reviewed the video of the external camera indicates the following activity there from September 23 to 25, 2011:

Friday, September 23, 2011:

Saturday, September 24, 2011:

Sunday, September 25, 2011:

92        No further movement is shown in the stairwell or in the finance office until 07:30, when the office lights are turned on. The vault is not opened until 08:00 on Monday, September 26, 2011 (from the finance office video).

93        In cross-examination, it was pointed out that Constable Maxwell’s report states that the video footage from the building where the finance office is located, as well as the key logs for the weekend of September 23 to September 26, 2011, showed that on September 23, at 21:48, Mr. Shandera took the keys for this building from the key lockup in the correctional manager’s office. The surveillance video of this building shows that at 21:42, he enters the building, some six minutes before he took its keys.

94        Constable Maxwell’s report indicates that on September 24, 2011, the video surveillance at 23:44 shows Mr. Shandera going into the building  again, yet at 23:26, a camera inside the building shows Mr. Shandera come from the staff side of the finance office into the inmate stairwell, some 18 minutes before the system observes him entering the building.

95        Constable Maxwell stated that he could not speak to the timing. He was asked whether it raised any red flags. He answered that he thought it was a mistake in the clocks.

96        Constable Maxwell’s report also indicates that at 23:47 on September 24, 2011, the surveillance video shows movement in the finance office, the light in the vault room turning on, and the vault door opening. Movement in and out of the vault continues until September 25, 2011, at 00:11 hours. Its light goes out at 00:19 hours.

97        Mr. Shandera exits the building at 00:22. He is inside for a total of 38 minutes, yet the total time elapsed from when he is in the stairwell at 23:26 until 00:19 is 53 minutes. Constable Maxwell was asked how he accounted for the 15-minute difference.

98        The surveillance video also shows that on September 24, 2011, two officers enter the building  at 20:50 and exit at 20:51.

99        He was asked why he had not earlier disclosed the fact that a key had been found outside the building where the finance office is located. He answered that he did not think it was relevant as he tried to open drawers in the vault with it without success.

100        He was asked whether correctional officers watch the surveillance videos. He answered that he could not recall. He was asked whether he was aware that a new inmate cleaner had been assigned to clean the finance office. Again, he could not recall. He was asked whether any money was in the vault. He answered in the affirmative, but he could not recall how much.

d. Mr. Baker

101        Mr. Baker is a correctional manager of operations at the Institution and has been for approximately 16 years. In 2011, he and Mr. Shandera were co-workers in positions classified at the same group and level.

102        Mr. Baker identified the administration building on the site plan. He stated that the distance between it and the building where the finance office is located is approximately 60 metres. He stated that it takes approximately 30 to 45 seconds to walk between the buildings.

103        The main control is located in Building B02, which is adjacent to Building B03.

104        Located within the administration building is the correctional officers’ briefing room. Employees eat their meals in this area during regular working hours. The correctional manager’s office is accessed through the correctional officer’s briefing room. An exit from room 101 leads to the outside where the finance office is located. On that office’s outside wall are the key safes, one that is electronic and two that are not electronic.

105        The scheduled shifts for correctional managers are a day shift, from 06:30 until 19:30, a middle shift from 10:30 to 23:00, and an evening shift from 14:45 to 22:45.

106        A correctional manager working the midnight shift works alone from 22:45 until 05:40. During that time, he or she is in charge of the Institution and is required to carry a radio; he or she could call a CX-01 correctional officer at the control centre.

107        Mr. Baker was asked whether all the security cameras, including the one in the finance office, could be viewed in the control centre. He replied that the officer there would have to watch all the cameras and that 10 to 15 security cameras monitor the Institution. He stated that at the time at issue, not all the cameras fed into the control centre. In particular, the camera in the administration building covering the finance office stairwell did not feed into the control centre.

108        He stated that access to the key safe was specific to each individual. He stated that the fire punch key would provide access to the administration building where the finance office is located, its main program area, and its stairwells but that it would not provide access to the finance office or the vault. A fire walkthrough of this building takes between three and four minutes.

109        He stated that there would be no need for a correctional manager to go into the building to have lunch there because of the lunch area in the correctional officers’ briefing room.

110        Assuming a correctional manager is in the building  having lunch and hears a noise in the finance office, he stated that he would expect the manager to call additional staff to the building and then to return to the correctional manager’s office, as the correctional manager is in charge of the Institution. He or she should also conduct an inmate count to ensure he or she knows where the staff is.

111        During cross-examination, he was asked whether the vault in the building where the finance office is location had an alarm. He answered that he assumed it did. He was asked whether he knew where the alarm sounded. He answered that he did not. He stated that other vaults at the Institution had alarms that sounded in the main control post.

112        He was asked whether a correctional manager who was depressed might wish to eat his or her lunch in the building where the finance office is located. He answered that he did not see any reason a correctional manager would do that.

e. Ms. Baker

113        In 2011, Ms. Baker was an administrative assistant, CR-04, for Tom Campbell.

114        She was asked to review a surveillance video and to create a timeline of what she witnessed. She reviewed the video, which views the main entrance for staff entering and exiting the building where the finance office is located, on September 26, 2011, and produced an OS/OR. She was asked whether the Institution still has the video. She stated that she did not know; however, she advised that the protocol is to save it to DVD after 48 hours.

115        In her report, she noted that the grievor entered the building on Saturday, September 24, 2011, at 23:44.

116        She was advised that Mr. Campbell’s report indicated that the surveillance video shows the stairwell of the building outside the finance office. Ms. Baker was told that that report also noted that the grievor was in the stairwell at 23:26 on that Saturday. She stated that she could not explain the discrepancy. She was asked if it was possible that she had made a mistake. She stated that it was possible.

117        During cross-examination, Ms. Baker confirmed that when reviewing the surveillance video of September 23, 2011, she observed Mr. Shandera leaving the building with something under his arm. She was asked why she made a note of that. She stated that when he entered the building, he did not have anything with him, yet when he left, he had something with him. It was suggested to her that he was carrying a small bag, like a lunch kit. She answered: “No, like a plastic bag.” She acknowledged that in her report, she said it was an unidentified object.

118        Ms. Baker was not able to verify that a copy of the surveillance video from the camera was made, and if so, what happened to it.

119        She reviewed the surveillance footage from Friday, September 23, 2011, at 16:00 hours, to 07:15 on Monday, September 26, 2011. She completed her report on the Monday. She did not watch the video frame by frame but reviewed the over 63 hours of video by fast-forwarding through it.

f. Ms. Shore

120        Ms. Shore was asked how much information the RCMP shared with the board of investigation. She stated that it had not shared any at the time of the site visits as a police investigation was ongoing.

121        The board of investigation interviewed Mr. Shandera on October 26, 2012. He advised it that he reported for work on September 23, 2011, at approximately 17:00 for his midnight shift, which was from 18:00 to 05:30. He removed the keys for the building where the finance office is located since he eats his lunch there during his meal break. He stated that he had been taking his meal break in this building in the upstairs boardroom for a few months before September 2011.

122        He recalled that another correctional manager would have been on duty that evening and would have left around 22:30.

123        He was asked if he entered the finance office or the vault on the evening of September 23, 2011. He advised that he did not. He stated that he did not have access to the finance office.

124        He was advised that he had been seen on surveillance video on September 23, 2011, leaving the building, and that it appeared that he was carrying something under his arm. He said he was carrying his lunch kit. When he was advised that the surveillance video did not show him carrying anything into the building, he stated that he believed that he might have left his lunch kit in the building on his previous shift. He advised that on that evening, he obtained the keys to the building to access it.

125        On September 24, 2011, he used the main control keys to access the fire punch keys to access the building to eat his lunch. Correctional officers also use those keys to conduct their fire punches. The fire punch keys do not allow anyone to access any rooms, just the building itself. The Building’s keys allowed access to the finance office but not the vault.

126        He was asked why he took one set of keys one night and a different set the other night. The report states that he was not able to answer.

127        Ms. Shore testified that the board of investigation’s report concluded that Mr. Shandera accessed the finance office on both nights. The report also concluded that he did not need keys for the building because he already had Ms. Volb’s keys. She also observed that he was the only correctional manager that had access at the material times.

128        Mr. Shandera stated that on one of the surveillance videos; he is seen looking into the finance office window from a stairwell on Saturday, September 24, 2011. He did so as he believed he had heard something coming from the finance office. He stated that he did not have access to the finance office. Ms. Shore concluded that in those circumstances, Mr. Shandera should have investigated to check who would have had access to the facility and should have directed an inmate count, which he did not do.

129        Ms. Shore was asked about the time discrepancies on the evening of September 24, 2011. She stated that they were addressed in the report. In particular, Mr. Shandera enters the stairwell at 23:26. The vault opens for the first time at 23:47. The door opens and closes, and movement happens for several minutes before the door closes for the final time at 00:11 on September 25, 2011. The lights go out later at 00:19.

130        Mr. Shandera enters the building at 23:44 and exits at 00:22 on September 25, 2011. The discrepancy is that he can be seen in the building in the stairwell before another camera actually shows him entering the building. Ms. Shore stated that the board of investigation believed that the wrong time was entered into the observation report when the review was done of the camera, which covered the entrance to the building where the finance office is located.

131        Ms. Shore was asked why the board of investigation concluded that Mr. Shandera had taken the cash from the vault. She replied that it believed that he was the only one who had access to the vault over the weekend at issue.

132        As for the probability that Mr. Shandera entered the finance office, the surveillance video showed that the finance office was breached when Mr. Shandera was in the facility. No one else was observed going into the building, other than correctional officers.

133        She was asked what weight she put on the suggestion from Mr. Shandera that he was in the boardroom when he heard a noise and that he went to the stairwell to look at the finance office. She replied that the board of investigation’s theory was that he purposely put himself on camera in the stairwell, knowing that he intended to steal money from the vault, since it would give rise to a hypothesis that potentially, someone else was in the vault. The board of investigation concluded that someone else being in the building was improbable. No investigation was undertaken as to whether an inmate was in the building or into the whereabouts of other staff.

134        Ms. Shore was cross-examined on the discrepancies in the surveillance video.

135        Mr. Campbell reviewed the surveillance video at the main control that shows the stairwell outside the building where the finance office is located. He reported that on September 23, 2011, at 21:57, activity is visible in the staff side of the finance office. The light to the vault is on, and some movement can be seen. The identity of the person there is undetermined. The movement continues until 22:00.

136        The board of investigation’s report indicates that the surveillance video for September 23, 2011, shows the vault door being opened at 21:57:13. Movement continues until 22:00:12, when the door is closed. The vault door is again opened at 22:01:37, and the person enters and closes the door behind that person. It reopens at 22:03:40 when the person exits, and the door is again closed at 22:03:47.

137        Ms. Baker, who reviewed the surveillance video of the camera covering the exit and entrance to this building, recorded that Mr. Shandera exited the building  at 22:04 on September 23, 2011. That video footage was never provided as it was not retained.

138        When explaining how the videos could be synchronized, Ms. Shore observed that it took approximately three minutes for the officers to get to the finance office from the entrance to the building. She was asked why then would it have taken Mr. Shandera less than a minute to exit. Ms. Shore stated that she could exit the building in less than a minute.

139        Ms. Shore was referred to a passage in the board of investigation’s report that states that it reviewed the surveillance video from September 24, 2011, which shows Mr. Shandera entering the stairwell at 23:26. The vault opens for the first time at 23:47:16. The door opens and closes, and movement is seen for several minutes before the door closes for the final time at 00:19:36 (on September 25, 2011). In the footage from the external camera, Mr. Shandera enters the building at 23:44 and exits at 00:22 on September 25, 2011. There is a noted discrepancy in which he is seen in the building via the internal camera covering the stairwell before the external camera actually shows him entering.

140        Ms. Shore acknowledged that the board of investigation believed that Ms. Baker entered the wrong time in the observation report when she reviewed the external cameras video. The board of investigation concluded that it was reasonable to conclude that Mr. Shandera entered the building at 23:24 as opposed to 23:44 as indicated in Ms. Baker’s report.

141        Ms. Shore was asked about the key log report for September 24, 2011. It shows that Mr. Shandera removed the key at 23:48:37 and that he returned it at 01:56:40. She was asked how Mr. Shandera could be observed in the stairwell to the building where the finance office is located at 23:26 when he did not pick up the key until 23:48 hours. She replied that it was possible that the systems were not synchronized and that different functions are on different systems. The keypress is not on the same system as the surveillance video cameras. She does not know if it is possible to synchronize the keypress timestamps and the surveillance video cameras.

142        During the board of investigation’s interview, Mr. Shandera advised that he made an error in judgment when he purchased the cameras out of the back of a truck.

143        Ms. Shore was questioned about the recording of the comings and goings at the Institution by the surveillance camera at the main gate. The extract covers Thursday, September 22, 2011, until Saturday, September 24, 2011, at 22:03. It was pointed out that nothing in the record indicates staff and visitors coming and going during the course of the day from 06:57 until 16:30.

144        She was asked whether an officer was posted at the Institution’s control post to monitor the surveillance cameras. She answered that an officer was posted 24 hours per day at the Institution but could not speak to how its cameras are monitored.

145        She was asked whether the stairwell surveillance video cameras in Building 30 were being monitored. She replied that she did not know.

146        She acknowledged that Mr. Shandera submitted a rebuttal to her report and that he pointed out discrepancies in the board of investigation’s investigation.

147        She stated that once her report was submitted, her role in the investigation ended.

148        A CD containing an audio recording of the grievor’s interview on October 26, 2012, which he filed, was reviewed. It is consistent with the statements that Ms. Shore attributed to him during that interview.

g. Mr. Emann

149        Mr. Emann is currently the warden of the Institution. He has worked for the CSC for 27 years and started as the warden on October 12, 2011. Before then, he was the director of intervention at the CSC’s Regional Headquarters in Saskatoon, Saskatchewan.

150        He stated that before he arrived, the Acting Warden had commenced a disciplinary investigation regarding Mr. Shandera and had suspended him indefinitely without pay pending the completion of the investigation.

151        When doing so, the Acting Warden had considered the criteria outlined in Larson v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 9, a decision concerning an employee who was suspended pending an investigation. The Acting Warden believed that Mr. Shandera’s continued presence in the workplace was inappropriate and was a considerable risk to the safety and security of the Institution at the time. Consequently, he was suspended without pay, pending the investigation. He was advised that the decision to suspend him without pay would be periodically reviewed throughout the investigation, to determine the risk his presence posed to the Institution.

152        On October 24, 2011, Mr. Emann requested that Ms. Shore and Mr. Otto carry out an investigation into Mr. Shandera’s conduct with respect to the allegations that he had removed money and property, namely, the cameras, a DVD recorder, and the SD cards, from the Institution without authorization and to prepare a written report by November 18, 2011.

153        On the same day, Mr. Emann wrote to Mr. Shandera, advising him of the disciplinary investigation into his alleged misconduct. He also advised him that the investigators would contact him to arrange an interview and that he was entitled to representation.

154        On October 31, 2011, he wrote to Mr. Shandera, advising him that he had attempted to contact him to express his concern for his well-being and to offer support and assistance. He also acknowledged that he had received Mr. Shandera’s complaint and advised him of the investigation process into that complaint.

155        On November 3, 2011, Mr. Shandera wrote to Ms. Shore and Mr. Emann, advising them that due to medical reasons, he was unable to participate in any interview process or investigation at that time. He enclosed a doctor’s certificate to that effect.

156        On January 10, 2012, Mr. Emann wrote to Mr. Shandera, advising him that he had decided to proceed with the disciplinary investigation and that the disciplinary board would be in touch with him in the near future. Mr. Emann advised Mr. Shandera that should he be unable to participate in the investigation, it would be completed without the benefit of his participation.

157        On January 16, 2012, Mr. Shandera wrote to Mr. Emann, advising him that he was currently under the care of physicians. He enclosed verification that he suffered from numerous health issues that it made it very difficult for him to participate in an investigation. He also denied all claims of wrongdoing. He requested that the Institution wait until he was medically fit to attend an interview and answer questions as he was not a risk to the Institution because he was suspended.

158        Mr. Emann considered Mr. Shandera’s comments and decided to pause the investigation. He then wrote to Mr. Shandera, requesting that he deliver a letter to his family doctor for the purpose of ascertaining his ability to participate in a disciplinary interview.

159        On January 18, 2012, Mr. Shandera wrote to Mr. Emann to advise him that he had made an appointment with his doctor for January 19, 2012, and that he had forwarded Mr. Emann’s letter to his criminal counsel.

160        On January 19, 2012, Mr. Shandera again wrote to Mr. Emann. He enclosed a letter from his doctor that stated the nature of his disorder and that confirmed his inability to return to work. Mr. Emann stated that in his opinion, the letter did not address Mr. Shandera’s ability to participate in the investigation.

161        On January 27, 2012, Mr. Shandera’s criminal counsel wrote to Mr. Emann, advising him that he understood that the CSC had requested a meeting with Mr. Shandera to discuss the accusations against him and that as might be expected, it would not be a privileged communication. Therefore, Mr. Shandera would not participate until the criminal matter was at an end.

162        On March 23, 2012, Mr. Emann wrote to Mr. Shandera to advise him of the decision to move forward with the disciplinary investigation. He observed that the grievor had not provided any medical information indicating that he was unfit to participate in the disciplinary investigation and acknowledged receiving the letter from the grievor’s lawyer. Consequently, the board of investigation was advised to proceed without Mr. Shandera’s input. The grievor was also advised that upon the completion of the investigation, he would be provided with a copy of the report and would be given an opportunity to provide a rebuttal to it.

163        On October 17, 2012, Mr. Shandera wrote to Mr. Emann, advising that he was prepared to participate in the internal disciplinary process.

164        On October 26, 2012, the board of investigation interviewed Mr. Shandera.

165        On November 15, 2012, Mr. Emann provided Mr. Shandera with a vetted copy of the disciplinary investigation report, which was dated November 2, 2012. He requested that Mr. Shandera review it and provide his comments as well as any rebuttal or additional information that he felt was relevant for management to consider before it determined whether corrective action was warranted, and if so, to what degree. The grievor was given until November 29, 2012. In addition, Mr. Emann requested his presence at a hearing on Monday, December 3, 2012, and stated that he was entitled to representation for that hearing.

166        On November 26, 2012, Mr. Shandera provided a 13-page written rebuttal to the investigation report. He requested that the information he provided be reviewed and be reinvestigated by someone not affiliated with the Institution. He believed that attending the disciplinary hearing before a proper review was done of the facts and information provided in his rebuttal was not appropriate until a written response was provided to him after that proper review was done.

167        On November 30, 2012, Mr. Emann and Mr. Shandera had a telephone conversation during which Mr. Shandera advised Mr. Emann that he would not participate in the disciplinary hearing. He stated that he had provided the information he wished to be considered and requested that the disciplinary process be concluded.

168        On December 5, 2012, Mr. Emann wrote to Mr. Shandera. He confirmed their telephone discussion and advised him that he would review and consider all the information that had been gathered throughout the disciplinary process and then make his decision.

169        On January 9, 2013, Mr. Emann wrote to Mr. Shandera. He advised the grievor that he had reviewed all the information that had been gathered and that he had made a decision. He requested Mr. Shandera’s presence at a disciplinary meeting on Thursday, January 17, 2013. Mr. Shandera was asked to confirm if he would participate in the meeting by the end of day on Monday, January 14, 2013, and was advised that should he decide not to, the decision would be sent to him via registered mail.

170        Mr. Shandera replied on the same date, advising Mr. Emann that he could send the final decision by registered email. He maintained that he had not engaged in misconduct.

171        On January 15, 2013, Mr. Emann sent a letter to Mr. Shandera, advising him that he was terminating the grievor’s employment for disciplinary reasons. The letter stated in part as follows:

Based on the evidence gathered it is believed that you did in fact enter the safe in the Finance department of Drumheller Institution without authorization and steal approximately $1000 in cash. As well it is believed that you removed the 2 JVC Everio cameras from Drumheller Institution without authorization and proceeded to try to sell these cameras on E-Bay [sic].

In determining the level of disciplinary action warranted in this case, I have not only considered the findings of the Disciplinary Investigation and your comments in your written rebuttal, but also factors such as your role as a correctional manager in the Service and the fact that your actions were willful and deliberate. Further the fact that you have refused to accept any responsibility for your actions and have tried to deflect the blame and attention to others through allegations of misconduct not related to this investigation [sic].

After careful consideration I have determined that you do not display the values and ethics required of a CSC employee as outlined in CSC’s Mission Statement. By your actions, you have irreparably damaged and compromised the relationship of trust, integrity, confidence and credibility which must exist between you and the Correctional Service of Canada. I am therefore unable to maintain confidence in your ability to perform your duties as a Correctional Manager.

Accordingly, given the seriousness of your misconduct a decision has been made to terminate your employment for disciplinary reasons…

172        Mr. Emann stated that after stepping back, he took into account the fact that Mr. Shandera had a 10-year employment record with no discipline. He reviewed the investigation report in detail. He went through Mr. Shandera’s rebuttal. Ultimately, he accepted the report’s findings, which were that a reasonable person would conclude that Mr. Shandera did remove the cameras from the Institution and attempt to sell them on eBay and that he had taken the money from the vault.

173        He considered that as a correctional manager, Mr. Shandera had complete responsibility for the safety, security, and protection of the staff and the inmates at the Institution. In such a position, the CSC must rely upon and trust a correctional manager’s judgment and accountability to give and take direction.

174        In Mr. Emann’s view, Mr. Shandera had not upheld the CSC’s significant values and had broken its “Code of Conduct”. In his view, the relationship was irreparable on account of Mr. Shandera’s misconduct, and he could no longer maintain confidence in the grievor’s ability to perform his duties.

175        Mr. Shandera did not raise with him any medical issues other than that he was not fit to return to work.

176        With respect to Mr. Shandera’s harassment claims, they were reviewed outside the misconduct investigation process. Mr. Emann concluded that those claims were raised for the purpose of deflecting attention from the alleged misconduct

177        During cross-examination, he acknowledged having read Mr. Shandera’s rebuttal. However, he did not conclude that Mr. Shandera had raised valid concerns.

178        He acknowledged that there was no alarm in the vault in 2011. However, one was installed after the events in question took place.

179        He was asked whether the CSC’s breach of the Privacy Act (R.S.C., 1985, c. P-21) and the harassment issue had any impact on the termination decision. He stated that those issues were peripheral to the misconduct. He acknowledged that 1 of Mr. Shandera’s 15 Privacy Act complaints was founded. The individual concerned was given training and a reprimand.

180        He acknowledged that one of Mr. Shandera’s harassment allegations was founded and stated that the regional deputy commissioner had handled it.

181        He stated that all the matters raised in Mr. Shandera’s rebuttal were considered when he made his decision, which was done on a balance of probabilities.

182        Mr. Emann was asked whether he was aware that at the material time, Mr. Shandera was under medical care. He replied that he had had some information but that he had not been aware of the extent of Mr. Shandera’s illness. He did not have any information from Mr. Shandera’s physician.

183        In any event, he sent a letter to Mr. Shandera to address this concern. He did acknowledge receiving information that Mr. Shandera was unable to work due to disability and that he was under a physician’s care.

184        He also confirmed that some procedures in the investigation process were suspended or put on hold until Mr. Shandera was able to participate. He did not receive any certification that Mr. Shandera was unable to participate.

185        He stated that neither Mr. Farmer nor Mr. Campbell had input into his decision to terminate Mr. Shandera.

B. For the grievor

186        Upon the completion of the employer’s evidence, the grievor advised the Board that he was considering retaining counsel to represent him for the balance of the hearing. At the commencement of the hearing, he advised me that the counsel he had consulted with respect to this adjudication was overseas. He advised me that he was prepared to proceed without counsel to avoid delaying the hearing. I asked Mr. Shandera to consider his position overnight, to give him an opportunity to consult counsel.

187        The next morning, Mr. Shandera advised me that he was unable to reach counsel and that he was prepared to proceed alone. He stated that he would not call any witnesses.

188        With the employer’s consent, the grievor filed two binders of documents, a number of which were marked as exhibits. The documentary evidence he filed in evidence included the following:

189        In October 2011, Mr. Shandera alleged that management had engaged in misconduct. He also complained of harassment and a breach of privacy. The board appointed by management, composed of Donna Moran, special advisor, CSC, and Monty Bourque, a retired warden, found that misconduct had occurred in one instance that was tangential to the main thrust of Mr. Shandera’s allegations. It was dealt with immediately, and corrective action was taken.

190        The misconduct included allegations that Mr. Shandera had been assaulted and that there were failures in the disciplinary investigation convened in October 2011 into his misconduct, which is the subject of this adjudication. Allegations were also made that he had been the victim of racism and discrimination.

191        The board of investigation did not find any evidence of management misconduct. Although outside its mandate, it also found no evidence of racism or discrimination.

[24] The label “rat” in the correctional service is related to a “code of silence” inside the institution. Someone is called a “rat” when, rather than covering up or keeping silent about the goings-on within the institution, they break the code of silence and tell people

[25] The consequences of being labelled a “rat” bring ostracism to the one labelled as such. The other officers will avoid talking to or taking care of the officer and will ignore this person. A correctional officer who is labelled a “rat” puts their security in jeopardy and at high risk

I used the menu button to find the recordings made by the DVR for 2011-09-23, and beginning at 21:40 hours and 2011-09-24 beginning at 2340 hrs, as per direction by Constable Maxwell. I recorded the video output of the DVR recordings onto the Archos DVR station…

III. Summary of the arguments

A. For the employer

192        This is a termination case for a correctional manager with 10 years of service and no prior discipline.

193        The onus was on the employer to establish on a balance of probabilities that it is more likely than not that the grievor stole the cameras as well as about $1000 from the financial office vault at the Institution.

194        There is no question that the CSC owned the two cameras. Ms. Treller produced the receipts for their purchase. Their serial numbers matched the ones she had recorded at the time of their purchase. There is also no question that she kept the cameras in her locked storage area in Building 30. And there is no question that she did not give the grievor permission to remove them.

195        There is no question that the grievor posted them for sale on eBay. He admitted to Constable Maxwell and to Ms. Shore that he in fact sold them, one to an RCMP officer and the other to someone in Quebec. The cameras were recovered, and there is a chain of continuity of possession.

196        The defence was that the grievor did not remove the cameras from the building but rather that he purchased them from an individual in a parking lot at the Drumheller Canadian Tire.

197        As Ms. Shore noted, it is highly unlikely that a third party stole the cameras, according to the grievor’s theory, from a medium-security institution in a secure area for which he had keys.

198        Faryna v. Chorny, [1952] 2 D.L.R. 354, a decision of the British Colombia Court of Appeal, sets out as follows the principle that the validity of evidence should be consistent with the preponderance of probabilities affecting the case as a whole as disclosed in the surrounding circumstances:

The credibility of interested witness [sic], particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth

199        The theory of the defence is equivalent to the proposition referred to in Faryna, which is that it places “… too great a strain upon one’s sense of the realities of life.” The employer met its burden with respect to demonstrating that on a balance of probabilities, the grievor stole the cameras.

200        In Horne v. Parks Canada Agency, 2014 PSLRB 30, the employer terminated the grievor in that case for misusing a government-issued local purchase order authority and financial delegated authority, along with fraud, theft, willful and intentional dishonesty, and deception. The grievor had caused the employer to purchase three tires, which he installed on his personal vehicle. The adjudicator stated at paragraph 200 that “[t]he general thrust of the arbitral jurisprudence is that termination is a usual sanction for dishonesty, absent serious mitigating factors.”

201        In the circumstances of this case, the theft went to the core of the employer-employee relationship. To accomplish his theft, the grievor abused his correctional manager position by using his access to the keys to the secure areas of the facility to remove the cameras and put them up for sale, which was serious misconduct.

202        The second element in the case is the theft of approximately $1000 from the vault in the finance office of Building 30.

203        A review of the logs of the cameras covering the entrance to this building and its inmate entrance indicated that on Friday, September 23, 2011, correctional officers did a fire punch and entered and exited the building between 21:00 and 21:04 using the inmate access stairwell and the finance office area stairwell. Correctional officers do not have keys to the finance office. They entered and exited the building in a pair and were in and out in several minutes.

204        Later that evening, the grievor was alone in the building. The surveillance video shows him entering the building at 21:42 and exiting at 22:04.

205        On Saturday, September 24, 2011, at 20:47, the surveillance video shows correctional officers entering the building, doing a fire punch, and exiting at 20:51. Later that same evening, the video shows the grievor entering the building at 23:44 and remaining inside until 00:22 on Sunday, September 25, 2011.

206        From Ms. Green-Broad’s evidence, approximately $1000 was in the safe, composed of a roll of $1 coins, a roll of $2 coins, some fifteen $50 bills, six $20 bills, three $10 bills, and six $5 bills.

207        The vault was breached on the evenings of Friday, September 23, 2011, and Saturday, September 24, 2011. The only person in the building at those times was the grievor.

208        As the grievor did not testify, an adverse inference should be drawn that had he testified, his evidence would have been contrary to his position or at least would not have supported it.

209        The employer submitted that it has met the “50 + 1” balance of probabilities that it is more likely than not that the grievor stole both the cameras and the money from the vault.

210        In King v. Treasury Board (Citizenship and Immigration), PSSRB File No. 166-02-25956 (19950125), [1995] C.P.S.S.R.B. No. 8 (QL), the adjudicator reviewed the Public Service Staff Relations Board’s jurisprudence when determining whether discharge is appropriate in cases of fraud or theft. He referred to the decision of J. Galipeault in Juneau v. Treasury Board (Revenue Canada, Customs and Excise), PSSRB File No. 166-02-13118 (19820922), [1982] C.P.S.S.R.B. No. 160 (QL), and quoted as follows from page 22 of it and then from Bristow v. Treasury Board (Employment & Immigration) PSSRB File No. 166-02-14868 (19860603), [1986] C.P.S.S.R.B. No. 157 (QL):

Mr. E. B. Jolliffe, Q.C., Chief Adjudicator at the time, made the following remarks at page 34 in his decision in Dixon … He said that a public servant found guilty of fraud or attempted fraud on the public treasury must expect the extreme penalty. He who robs the Crown is not entitled to be employed by the Crown. I must obviously agree with the remarks of our former Chief Adjudicator.

Mr. J.-Maurice Cantin, Q.C., Vice-Chairman of the Board, cited as [sic] observation made in Galt Meter Industries (1971) 23 L.A.C. (Egan) at page 11 of his decision in Swan (supra):

It would seem to me that unless the penalty imposed is, viewed objectively, manifestly injust or unreasonable in all of the circumstances, no substitution of penalty ought to be made…

In the light of the grievor’s attempted fraud on the public treasury, an extremely serious matter, I do not feel that his discharge should be considered unjust or unreasonable.

Adjudicator Cantin wrote in the Briston [sic] decision (Board file 166-2-14868) at p. 33:

Fraud, as is known, is a very serious act of misconduct. It must be likened to theft which is, according to Brown and Beatty, “one of the gravest if not the gravest, charges of misconduct in an employment relationship” (see Canadian Labour Arbitration, ed 1, no 7:3310, page 387). As such, fraud usually leads to discharge, unless there are extenuating or mitigating circumstances.

[Emphasis in the original]

211        In Bridgen v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 92, the adjudicator addressed the issue of the level of conduct required by correctional officers as follows at paragraph 106:

As general context for considering what is misconduct among correctional officers, the authorities are clear that correctional officers are to be held to a higher standard of conduct than employees who do other work (McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26, at para 80). The reason for this higher standard is because “[p]ersons who join the corrections service know that more is expected of them by their employer than would be expected of employees in other occupations” (Re Govt. of the Province of British Columbia v. B.C. Government Employees’ Union (Larry Williams Grievance), [1985] B.C.C.A.A.A. No. 26 (Chertkow) (QL); cited in Government of British Columbia v. British Columbia Government and Service Employees’ Union (Jaye Grievance), [1997] B.C.C.A.A.A. No. 813 (Hope), at para 28 (QL)).

212        This higher standard of conduct also applies to a correctional manager.

213        When assessing aggravating and mitigating factors to determine whether a viable employment relationship can be re-established, the adjudicator in Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62 at para. 191, referred to the following principles as outlined in Oliver v. Canada Customs and Revenue Agency, 2003 PSSRB 43:

The recognition of culpability or some responsibility for his or her actions is a critical factor in assessing the appropriateness of the discipline. This is because the rehabilitative potential of the grievor is built on a foundation of trust, and trust starts with the truth. If a grievor has misled his employer, failed to cooperate with the legitimate investigation of allegations on conflict of interest, and refuses to admit any responsibility in the face of the evidence showing wrongdoing, then re-establishing the trust necessary for an employment relationship is impossible.

214        The grievor made no recognition of culpability and has not accepted responsibility. He sought to deflect responsibility to others without any foundation or basis.

215        This is a clear case for termination, as there has been a clear violation of the employer’s Mission Statement. As stated by the Warden, the employment relationship has been broken beyond repair, and the grievance should be dismissed.

B. For the grievor

216        The grievor has always maintained his innocence since first being accused and charged in 2011. His statements remained consistent throughout both the employer’s and the RCMP’s investigations.

217        The grievor was transparent with the employer with respect to both his medical diagnosis and the criminal proceedings. He was honest and upfront when asked if he possessed the camera sent to the RCMP detachment and never denied being the owner of the eBay account when he was asked about it. He admitted to erring in judgment when he purchased the cameras in a parking lot.

218        The grievor had informed his supervisor before he was suspended that he was seeing a therapist for  health issues related to the workplace. The employer ignored his rights and requests when asked to stop pressuring him for a disciplinary hearing while he was medically unfit and seeking treatment. It preyed on his disability to elicit information to use against him in the criminal proceedings.

219        The grievor’s termination was done in bad faith and was a camouflage and a sham; it was done to protect the employer’s reputation. The allegations he was accused of were reported in numerous news articles, ruining his reputation, negatively impacting his job opportunities, and resulting in psychological and financial hardships for him.

220        The employer acted in bad faith from the suspension until the hearing by purposely withholding evidence or altering it to benefit its case, and it should be punished for delaying the matter.

221        The employer provided well-rehearsed testimony at the hearing, using the grievor’s rebuttal to the disciplinary report against him. His rebuttal, written in 2012, addressed all the discrepancies in the disciplinary report. No answers were provided to his rebuttal when it was submitted to the employer.

222        The employer addressed these discrepancies only several years later, in front of the Board during this hearing, and with representation from counsel.

223        During the interview, the grievor told the police that he believed his supervisors, Mr. Farmer and Mr. Campbell, had set him up due to misconduct allegations he had disclosed in July 2011. Mr. Farmer, the acting warden at the time, abused his authority and neglected his responsibility by not providing valid receipts for the cameras listed on the grievor’s eBay account before accusations were made that he listed them maliciously and with intent.

224        During the investigation, the RCMP had receipts for Sony cameras but none for JVC cameras. The grievor argued that during the disciplinary investigation, Mr. Campbell’s assistant manipulated the receipts and gave them to Ms. Shore.

225        Mr. Farmer’s false statement to Constable Maxwell on September 30, 2011, in which he stated that it was the grievor in the finance office vault, was given maliciously and was done purposely to ruin the grievor’s reputation and destroy his career.

226        Mr. Farmer told Constable Maxwell that all the time settings on all the systems on the Institution’s grounds were not set properly, which would explain why Constable Maxwell’s report had inconsistencies. In fact, the same errors were reported in OS/ORs completed by CSC staff. Both Ms. Shore and Mr. Farmer explained that the surveillance cameras’ timestamps were out of sync and used the same excuse. However, neither of them provided a clear, concise, or cogent answer as to why the timestamps were out of sync.

227        The RCMP neglected to conduct an independent investigation. Instead, it relied on information provided from an individual whom the grievor had accused of harassment about three months earlier.

228        A newspaper reported that more charges were expected against the grievor at the same time as the CSC was attempting to get him to attend a disciplinary hearing.

229        Mr. Campbell admitted to seeing the grievor’s complaints in July 2011. He stated that from them, he became aware that a staff member had assaulted the grievor. He would have seen all the statements the grievor had made during the interview about himself and Mr. Farmer.

230        Mr. Campbell is responsible for intentionally breaching the grievor’s privacy by disclosing extremely personal and private medical information about him. He also possessed the grievor’s items and paperwork following the grievor’s suspension without pay from October 2011 until March 2012. The paperwork and items sat on his floor for five months; he had full access to harassment memos that the grievor wrote. For months, the grievor asked for them to be returned, made submitted multiple complaints about them, and submitted ATIP requests about them, but he still has not seen them.

231        Mr. Campbell was also communicating with Ms. Shore, the chairperson of the investigation team, by providing information about the grievor. Mr. Farmer was her supervisor at Bowden Institution.

232        Mr. Otto, who investigated with Ms. Shore, works at the Edmonton Institution, where Kelly Hartle is the warden. Mr. Campbell sent her the grievor’s WCB package, breaching the grievor’s privacy. Ms. Hartle was once the Institution’s deputy warden.

233        In August 2012, Ms. Shore interviewed Mr. Farmer and Mr. Campbell during the disciplinary investigation she felt it necessary to remark that Mr. Shandera’s allegations were unfounded. The final report into those allegations was not released until January 25, 2013. The report concluded that the information was irrelevant to what she was investigating. Messrs. Farmer’s and Campbell’s remarks are untruthful and a manipulation of facts.

234        In her report, Ms. Shore included information obtained from Constable Maxwell, who provided the serial number of one of the cameras. Mr. Farmer was the acting warden. He spoke constantly with police officers during the investigation. After charges were laid, there was no longer any mention of his involvement or even of him being called as a witness.

235        Constable Maxwell’s unvetted report states that the surveillance recording footage inside the building where the finance office is located was seized twice, on two separate occasions. Why were the recordings from the building’s exterior cameras not seized as well? The RCMP arrived on the morning of Monday, September 26, 2011.

236        The fact that a key was found outside the building was never disclosed by either the police or the board of investigation. In fact, the grievor learned of it only after a production order was granted, and he received an unvetted copy of Constable Maxwell’s report from the respondent.

237        The employer hired and paid the Ancien Group Inc., an independent company, to investigate Mr. Shandera’s harassment claims. Only 1 of 13 claims was deemed founded because he could supply no proof. The whole process was a sham and waste of time for the grievor. It was a deceitful act to make it appear as if the grievor’s concerns were being addressed appropriately, but the report into the alleged harassment complaints was written in the same fashion as Ms. Shore’s.

238        The decision maker, Mr. Emann, provided no response to the grievor’s rebuttal when it was submitted. He simply stated that it was considered. The process of allowing an accused to submit a rebuttal then proceeding with action and not supplying a response to that rebuttal is manipulative and in bad faith. It allows the employer the ability to appear open and honest at a hearing in front of the Board while giving ample time for the employer to prepare a defence.

239        The employer terminated the grievor while he was receiving disability insurance for a mental disability. During the suspension, it was aware that the grievor was suffering from a mental health disorder and that he had been accepted for and had been receiving WCB benefits and disability insurance.

240        Mr. Emann’s testimony that he felt it was in the grievor’s best interests to attend the investigation was completely ridiculous. Many staff members colluded to write letters to trick the grievor, to use information and statements against him in criminal court to uphold the charges, knowing full well that the cameras never belonged to them. Abusing someone with a mental disability is incomprehensible and inexcusable and should be punished.

241        The employer could not rely on reports and video evidence only when they supported its case and ignore or alter discrepancies when they supported the grievor. Accountability must rest with both the employer and the grievor.

242        The employer explained that you cannot lose sight of what this case is about, which is “the theft of property”.

243        The grievor felt that that statement was wrong on so many moral levels. He agreed that the missing property was an injustice and that it deserved careful attention and investigation. However, the employer’s right to investigate and prosecute is not without inherent responsibilities.

244        The investigation could rely on a balance of probabilities but could not ignore the clear, concise, and cognizant information it exposed. The evidence had to be weighed, and the employer had to meet the burden of proof, which it clearly did not do.

245        The grievor’s information and record of events never wavered or changed. His statements were never manipulated and were provided in a straightforward and truthful matter.

246        An accused has the right to defend his or her innocence. The accused also has a duty to accept responsibility and consequences for mistakes made purposefully or not. The grievor accepted responsibility for his actions and never denied his part of the wrongdoing. He maintained his innocence and consistently pointed out irregularities to ensure that a proper and thorough investigation was carried out.

247        The grievor pointing out irregularities cannot be seen as him deflecting blame. The employer had the responsibility of ensuring that a proper investigation was conducted, and then it had to thoroughly address any rebuttals, if the investigation’s outcome affected the grievor’s employment, reputation, well-being, and financial stability.

248        The employer’s witnesses did not provide clear and concise information.

249        Constable Maxwell provided no clear and concise evidence to justify discrepancies in his report. It appears that he relied heavily on information provided by the employer that was proven to contain errors and on video footage that no longer exists.

250        On the bottom of the second page, Constable Maxwell’s report clearly states that on October 15, 2012, the Crown had issues proving that the Institution owned the cameras. According to all the initial reports, Mr. Farmer supplied receipts for the cameras and had close contact with the RCMP.

251        In his testimony, Constable Maxwell stated that he followed up on the grievor’s explanation of events, but no information in his report actually indicates that he did so.

252        Constable Maxwell testified using his notes but also produced an unvetted copy of his report at the hearing. A Board order, made at the grievor’s request, was required to compel Constable Maxwell to produce the report.

253        The employer provided a heavily vetted and incomplete report in response to the order and claimed it had fulfilled its obligations. Upon testimony being provided, the employer suddenly became aware of an unvetted copy of Constable Maxwell’s report that was supposed to be contained in a sealed criminal file. This was clearly a tactic to surprise the grievor, but he did not object to this document being entered into evidence, to ensure a complete presentation of facts.

254        Ms. Treller testified as an expert witness. However, when the employer questioned her about the Oracle I procurement program, cellphone towers, a Rogers cellphone at work, her ability to reference serial numbers, and the cost of items and reasons for any irregularities presented by conversations in an email, many irregularities appeared in her testimony. Many irregularities were contained in Ms. Treller’s testimony that were the same as those printed out in the grievor’s rebuttal to the board of investigation’s report.

255        According to the grievor, it is not a coincidence that no response was provided to him when he wrote his rebuttal four years ago.

256        Receipts do not match up, and she admitted to the Board that the Institution usually buys “Sony not JVC camcorders”. The grievor questioned that statement as several other suppliers could have supplied Sony rather than JVC cameras. Ms. Treller’s statement was concerning to the grievor.

257        Ms. Baker was again very confident when answering the employer’s questions and stated that she could have made a mistake in the report but never stated what that mistake was, precisely. She stated at the time of the investigation that her report was accurate and correct. The investigation team followed up with her, and she confirmed the contents of her report.

258        Years later, Ms. Baker stated that she could have made a mistake. Several prior witnesses alluded to a witness who was going to testify about how and why the surveillance video times appeared inaccurate. She was expected to acknowledge that a mistake had been made. But when the grievor discredited her report with a time log of the key system entry, which was produced by a prior witness, nothing really substantial was heard about explanations for the time differences.

259        Ms. Baker’s evidence was about video evidence that was never supplied. Statements that it was recorded were overheard from prior witness; no testimony was ever really was presented about it at the hearing.

260        Ms. Baker went on to say that she distinctly remembers that it appeared that the grievor was carrying a plastic bag larger than a lunch bag when he exited the building where the finance is located and that it was definitely plastic. No such inference was ever made to the investigation team four years ago, when the grievor told them that he ate lunch in the boardroom in that building.

261        Ms. Green-Broad acknowledged that the finance department is busy and that an inmate cleaner is assigned to clean the finance office. When asked about a fourth set of keys, she testified that she heard their existence was a rumour, which contradicted what she told the board of investigation several years ago.

262        The board of investigation concluded in its investigation that money being left in the vault was irrelevant. Common sense dictates that no one is going to go through all that trouble to breach a vault and take only some of the money in it.

263        As the acting deputy warden, Ms. Shore had a responsibility to investigate the facts without bias and to present them all. Her report is full of discrepancies based on personal theories, without any regard to the facts.

264        Ms. Shore ignored the proper use of evidence. She drew conclusions that are questionable at best. Her testimony at this hearing, four years after the facts at issue, appeared to address every reference with respect to the grievor’s rebuttal, yet she still could not give a clear, concise answer to the timestamp discrepancies on the Institution’s security cameras.

265        The board of investigation heard testimony from Ms. Treller that she returns her keys nightly to main control in exchange for her key tag. She does the reverse when arriving at work. She is one program officer. But in any event, her keys are left in the main control every night. She had access to the building, so the theory that no access was available to anyone else is incorrect and was ignored by the board of investigation.

266        Ms. Shore does not appear to have a clear, concise, or cogent recollection of facts. Specific reports, key system logs, and statements appear manipulated and misrepresented. She appears to use any information for the employer’s benefit but ignores what benefits the grievor.

267        Mr. Baker testified to having extensive security knowledge and experience and was very descriptive about keys. When asked whether there was an alarm in the vault, he immediately answered that there was one and then became unsure of his answer, claiming he believed so but was not sure.

268        Mr. Emann was clearly not presented with a clear, concise, and cogent investigation report on which to make an assessment for termination. That stated, the irregularities were pointed out in the grievor’s written rebuttal to him, but no answers were provided in return. Therefore, Mr. Emann is responsible for a wrongful termination and a lack of openness and transparency.

269        The employer was an active participant in the grievor’s initial WCB and disability applications and was responsible for completing the employer information sections on the forms by answering questions about the working environment and about compensation to an employee on disability.

270        Mr. Farmer, Mr. Campbell, and Mr. Ewing suspended the grievor without representation. Mr. Farmer threatened the grievor by telling him he had to resign or he would be terminated at the time of the suspension.

271        In October 2011, Mr. Shandera filed a complaint with the Canadian Human Rights Commission (CHRC) that included a number of allegations of management misconduct. On June 28, 2012, the board of investigation’s fact-finding report concluded that Mr. Shandera’s allegations against CSC staff were unfounded. However, Mr. Campbell, Mr. Ewing, and the grievor all agreed that something was said about having to resign or be terminated. Only Mr. Farmer stated that he did not threaten the grievor. Three confirmed, and one denied. How is this unfounded?

272        Mr. Emann stated that he had no knowledge of medical information but had been informed of as much by the grievor and had access to the WCB and disability paperwork he had submitted. Mr. Emann refused to acknowledge the medical information but was clearly made aware of it. He was also provided with doctors’ letters. He also agreed that he could have asked the grievor to take a health assessment but admitted that he did not. Mr. Emann’s claim that he did not know about the grievor’s health issues did not limit the employer’s responsibility. It was clearly discussed.

273        The grievor was transparent about his situation. He provided updates and kept the employer informed. Mr. Emann’s answers at the hearing were not clear and concise.

274        The grievor agreed to resolve his criminal charges by way of alternative measures only to alleviate the ongoing stress and hardships related to the accusations. His criminal charges were ultimately settled that way outside court, which resulted in delays because he was dealing with the effects of the situation on his health and finances. He was also managing repeated requests from the employer about the investigation and disciplinary hearing. And he had to endure its threats throughout that difficult time.

275        The grievor accepted that how he purchased the cameras was not what a reasonable person should have done, which is why he agreed to settle the criminal charges related to possessing them only by way of an alternative measure outside the court system. All other charges were withdrawn.

276        The grievor maintains his innocence to the respondent’s claims and believes the entire investigation was a sham and camouflage. The respondent did not meet the burden of proof on a balance of probabilities.

C. Employer’s reply

277        The burden was on the grievor to advance a medical defence. When one is advanced, next is finding the link or nexus to the alleged misconduct, which has to be sufficient to displace responsibility.

278        Arbitrator Innes Christie in Re Canada Post Corporation v. Canadian Postmasters and Assistants Association,(2001) 102 L.A.C. (4th) 97 (“MacMillan”), considered similar issues in a case involving the termination of a postmaster of a small-town post office who stole some $23 000 from the office and admitted his responsibility.

279        The union in that case submitted that the employer was obliged to accommodate the grievor by placing him in a supervised work environment because of his addiction to alcohol and gambling as well as his bipolar mood disorder. The arbitrator ultimately rejected the grievance, concluding that even though the grievor suffered from the illness of alcoholism, it did not lessen his responsibility for committing theft.

280        At paragraph 60 of the decision, Arbitrator Christie adopted the following reasoning from Re Canada Safeway Ltd. v. R.W.D.S.U. (“McNeil”)(1999), 82 L.A.C. (4th) 1:

(1) It must be established that there was an illness, or condition, or situation being experienced by the grievor. Sometimes this is a true illness while other times it might be circumstances in a person’s life that cause considerable psychological strain and can be as debilitating as a fully recognizable illness…

(2) Once an illness or condition has been established, then a linkage or nexus must be drawn between the illness or condition and the aberrant conduct…

(3) If a linkage between aberrant conduct and the illness or condition is established, an arbitration board must still be persuaded that there was a sufficient displacement of responsibility from the grievor to render the grievor’s conduct less culpable…

(4) Assuming the three elements set out above had been established, the arbitration board must be satisfied that the grievor has been rehabilitated…

281        In British Columbia (Public Service Agency) v. British Columbia Government and Service Employees’ Union, 2008 BCCA 357, the British Columbia Court of Appeal allowed an appeal of an arbitrator’s decision that concluded that an employee’s termination for theft was prima facie discriminatory because a disability, namely, alcohol dependency, was a factor in the theft.

282        In the circumstances of that case, the Court found that there was no suggestion that the employee’s alcohol dependency played any role in the employer’s decision to terminate him. He was terminated like any other employee would have been on the same facts, for theft. The fact that alcohol-dependent persons may demonstrate “deterioration in ethical or moral behaviour” and may have a greater temptation to steal alcohol from the workplace if exposed to it did not permit an inference that the employee’s termination was based on or influenced by his alcohol dependency.

283        The Court relied upon the decision of Professor William Black in Holloway v. MacDonald and Clairco Foods Ltd. (1983), 4 C.H.R.R. D/1454, to assist in understanding the importance of the link between the employee’s disability and conduct. In that case, Professor Black explained that “… the critical question was whether the employer’s decision was influenced by the employee’s protected characteristic.” The Court concluded at paragraph 15 as follows:

… no suggestion in the evidence that [the employee’s] termination was arbitrary and based on preconceived ideas concerning his alcohol dependency. It was based on misconduct that rose to the level of crime. That his conduct may have been influenced by his alcohol dependency was irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee would have suffered for the same misconduct.

284        Madame Justice Kirkpatrick dissented. She concluded that alcoholism was a contributing factor in the grievor’s theft of alcohol and that it was reasonable to infer that alcoholism was related to his termination for theft. Therefore, the employee had established prima facie discrimination. The onus then shifted to the employer to establish a bona fide occupational requirement defence. Ultimately, she would not have interfered in the award of the arbitrator, who had determined that the employer had failed to accommodate the grievor to the point of undue hardship. She elaborated on the human rights analysis at paragraphs 55 and 56 as follows:

[55] It is important to recognize that the grieving employee bears the onus of establishing prima facie discrimination. In a situation of adverse effects discrimination, the employee must adduce evidence establishing a nexus between the addiction and the misconduct – the stated reason for termination. This evidentiary burden is significant, for it cannot be assumed that addiction is always a causal factor in an addicted employee’s misconduct. In its factum, the employer submitted, “[g]iven the prevailing view of addiction experts that addiction can result in a lowering of moral and ethical conduct on the part of the addicted person, it will be a rare case where some connection between the addiction and the misconduct cannot be established” (emphasis of the appellant). This view undervalues the importance of evidence in cases of this kind, and the necessity for a contextual inquiry that considers the nature of the disability and the misconduct, and the connection between the two.

[56] The importance of establishing a nexus between the misconduct and the disability was recently demonstrated in Ryan v. Canada Safeway Ltd., 2008 BCHRT 12 … at para. 27:

In the present case, Ms. Ryan would have to establish that her misconduct, in taking the money from the till and not returning it for some days, was related to her alcoholism. If it was not, then, regardless of the state of the Employer’s knowledge with respect to her alcoholism, it was not prima facie discriminatory for the Employer to terminate her employment for engaging in that conduct, and she could not succeed in her complaint.

285        The arbitrator in Toronto Transit Commission v. Canadian Union of Public Employees, Local 2 (M.S. Grievance), 210 L.A.C. (4th) 268, elected to follow that dissent. The union filed a grievance challenging the employer’s action of relieving the grievor from duty for dishonesty, breach of trust, theft of its property, and selling that property for personal gain.

286        In that case, it was not disputed that the grievor was dishonest and that he had committed a number of thefts. Rather, the union alleged that the employer contravened the collective agreement and the Ontario Human Rights Code (R.S.O. 1990, c. H.19; “the human rights code”) by relieving him from duty while he was on sick leave and by failing to accommodate his disability, namely, his suffering from cocaine and marijuana dependence, pathological gambling, alcohol abuse, and depression when he committed the thefts.

287        The employer argued that the grievor’s cocaine dependence did not cause him to commit the thefts and that it played no part in the decision to terminate his employment. The employer argued that there had to be a nexus between the disability and the offence for the disability to be of a mitigating or exculpatory factor; therefore, the human rights code was not engaged, and the disability was irrelevant.

288        The union argued that the grievor’s addiction to cocaine and his gambling issues were disabilities that were related to the misconduct, that the employer had failed to accommodate the grievor when it did not consider his disability related to the offence, and that a reinstatement order was appropriate. The arbitrator stated as follows at paragraphs 85 to 87:

This however is not a typical discharge case. In this case, you have the additional issue of the grievor’s claim of disability, which adds a human rights element to the analysis. The arbitral case law dealing with employees addicted to alcohol or drugs generally approach the disability issue by trying to fit the situation into one of three categories to assess and respond to the misconduct. Arbitrator Graham summarized the different approaches in his decision, Re Province of Manitoba et al and Legal Aid Lawyers’ Association (Fawcett), supra, at page 324-325. The approaches seek to distinguish between culpable and non-culpable conduct. The first approach examines the misconduct as culpable, which is assessed in a “disciplinary” manner and the addiction is treated as a mitigating factor, but not as being exculpatory. The second approach is the “therapeutic model”, which examines the conduct as being non-culpable and not subject to discipline. The third approach is known as the “hybrid” model and the response is to combine both a disciplinary and therapeutic approach.

In my opinion, the three separate approaches should be avoided. Trying to pigeonhole a fact situation into one of the three approaches noted above is too complicated and distracting. In my experience, culpable and non-culpable elements arise in many different cases of misconduct … The culpability of the employee can be examined both in terms of whether just cause exists for any discipline to be imposed and/or whether to exercise discretion to substitute a more just and equitable penalty.

In my view, it is also preferred to keep the labour relations and human rights analysis separate. The culpability of an employee can be examined in relation to just cause in a labour relations context and; if necessary, in the human rights context. This ensures that all employees who commit misconduct are treated in a similar manner and the human rights issues are adequately addressed within the human rights context. With this in mind, I will initially address the grievance in a labour relations context and determine if just cause exists. Then I will turn to address the grievance in a human rights context.

[Sic throughout]

289        After addressing the grievance in a labour relations context, the arbitrator concluded that the employer in that case had just cause to discharge the grievor and that it would not have been just and equitable in the labour relations context to exercise his discretion to substitute a lesser penalty.

290        The arbitrator then proceeded to address the grievance in a human rights context. He found that the cases were clear that cocaine dependence was a disability within the meaning of the human rights code. However, the case law also established that a grievor’s dependence on drugs or alcohol does not automatically shield such an employee from the consequences of his or her misconduct unless there is prima facie discrimination or a causal connection between the disability and the misconduct.

291        The arbitrator then turned to British Columbia (Public Service Agency). He applied the majority’s reasoning to the fact situation before him and concluded that there was no evidence that the termination was at all related to the grievor’s disability, and based on the application of the majority’s reasoning, the union had not proven a prima facie case of discrimination. He then stated as follows at paragraph 106:

However, that does not end the analysis in the human rights context because in my view the majority’s reasoning in British Columbia (Public Service Agency) v. B.C.G.E.U., supra is much too narrow and a broader more purposive examination must be made to determine if prima facie discrimination exists. Such a broad and purposive analysis is contained in the minority reasons of Madam Justice Kirkpatrick, which I believe more accurately reflects the correct legal test for determining prima facie discrimination in cases of addiction related misconduct.

292        The arbitrator then referred to the extract of Madam Justice Kirkpatrick quoted earlier in this decision and applied that rationale to the facts of the case before him. He found that the grievor clearly suffered from a disability and that he suffered adverse treatment when he was terminated. However, he found that the disability was not a factor in the adverse treatment. The only connection between the theft and the cocaine addiction was the fact that the grievor used the money he received for selling the stolen property to purchase cocaine. The use of that money was a choice the grievor willingly made instead of using his own money, which he had available.

293        The arbitrator also accepted the medical evidence that there was no causal connection between the grievor’s misconduct and his dependence on cocaine and concluded that the union had not proven a prima facie case of discrimination based on the broader, more purposive analysis of Madame Justice Kirkpatrick. Accordingly, the employer had no duty to accommodate the grievor.

294        Wright v. College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267, involved two nurses’ appeals of disciplinary decisions made by the College of Nurses for them stealing narcotics for their use and for creating false records and entries about administering narcotics. The Alberta Court of Appeal followed the “common sense approach” of the majority of the Court in British Columbia (Public Service Agency). It concluded that the College’s conduct of laying professional misconduct charges was not discriminatory as the criminal conduct that was behind the disciplinary charges was distinct from the appellant’s personal characteristics as there was no link between the appellant staff and their addictions, and the College’s motivation for laying the disciplinary charges did not arise from their addictions.

295        In the Federal Court’s decision in Menard v. Royal Bank of Canada, 2013 FC 2, it heard an appeal of a Federal Court decision that rejected the applicant’s submissions to quash the CHRC’s decision to dismiss his complaint.

296        Mr. Menard worked for the Royal Bank of Canada. He manipulated his and his wife’s bank accounts to cover money he was losing at a casino. He misappropriated $40 000 in Royal Bank funds. Initially, he lied to the bank about the reason for his behaviour, and then, he disclosed that he had gambling problems. The bank terminated his employment for his misappropriation.

297        He filed a complaint with the CHRC, alleging that he was terminated and treated adversely because of a disability, which were a gambling addiction and symptoms of attention deficit disorder. The CHRC investigator found that the Royal Bank had had a reasonable explanation for dismissing Mr. Menard, namely, the misappropriation of funds, and it concluded that he had not been adversely treated because of a disability and recommended that the complaint be dismissed.

298        Mr. Menard applied to the Federal Court to quash the CHRC’s decision. The Court found that the CHRC had rendered a reasonable decision and dismissed the application. He appealed to the Federal Court of Appeal.

299        In dismissing the appeal, the Federal Court of Appeal in Menard v. Royal Bank of Canada, 2013 FCA 273, noted as follows about the Federal Court and CHRC decisions:

… to the effect that employer actions motivated by an employee’s wrongful conduct alone cannot constitute discrimination - [they] are consistent with other leading appellate authorities, such as British Columbia (Public Service Agency) v. B.C.G.E.U., 2008 BCCA 357 and Wright v. College and Association of Registered Nurses of Alberta, 2012 ABCA 267.

300        The grievor in this case did not meet his onus of establishing a medical defence. There is no evidence of a linkage or nexus between his condition and the misconduct.

301        With respect to the allegation that Mr. Farmer and Mr. Campbell set the grievor up, how could they have arranged or forced him to be possess the stolen cameras? The decision maker, Mr. Emann, saw no link between the misconduct and this allegation.

302        In the context of the grievor’s criminal proceedings, it was argued that the Crown had difficulties proving its ownership of the cameras. In these proceedings, Ms. Treller’s evidence clearly established that the Institution owned the cameras.

IV. Reasons

303        This is a termination case of a correctional manager with 10 years of service, a good employment record, and no prior disciplinary record.

304        The onus was on the employer to establish the following, on a balance of probabilities:

1 - that Mr. Shandera removed the two cameras from the Institution without authorization and proceeded to try to sell them on eBay; and

2 - that Mr. Shandera entered the safe in the Institution’s finance department without authorization and stole approximately $1000 in cash from the safe.

A. The evidence with respect to the cameras

305        Ms. Treller stated that in 2011, she gave a demand purchase voucher for new technology, including six cameras, to a manager, Mr. Smith, who purchased them at Sears. She recorded their serial numbers when they arrived. She also introduced a bill from Sears dated March 31, 2011, and a statement of account dated March 18, 2011, which included the cameras.

306        The cameras were located in a locked storage closet at the back of room 112 on the first floor in the building where the storage is located. The keys to that building, the classrooms, the office, and the storage room are kept on the programs door in the main control area.

307        On September 26, 2011, Ms. Treller found that SD cards, two cameras, and a Sony DVD recorder were missing from the storage room. The two cameras were brand new and were still in their original boxes.

308        That evening, through a search on eBay, she found that cameras like those that had been removed were for sale by a vendor in Airdrie identified as “CX Guy 2010”. She alerted Mr. Campbell and forwarded the eBay link to him.

309        During the investigation, Constable Maxwell learned that the last time employees had actually observed the cameras in the storage room had been sometime in August 2011. On September 30, 2011, the Institution’s acting warden showed him a printed page from eBay that showed a person identified in the ad as “CX Guy 2010” selling cameras similar to those that were missing. The person identified was Mr. Shandera. The page also included his picture.

310        On October 5, 2011, the Drumheller RCMP detachment arranged for a sergeant in Calgary to purchase one of the cameras advertised for sale on eBay by CX Guy 2010. Constable Maxwell confirmed that the serial number on the purchased camera matched one of the missing cameras.

311        On October 11, 2011, Constable Maxwell met with Mr. Shandera at the Airdrie RCMP detachment. The grievor was arrested and charged with theft under $5000 and with possession of stolen property.

312        While in custody there, Mr. Shandera was interviewed and was shown the printout of the eBay ad for the cameras listed by the seller, CX Guy 2010. Mr. Shandera acknowledged that he was CX Guy 2010. He also acknowledged that he had sold the cameras on eBay. He stated that he had no idea that they were from the Institution.

313        Constable Maxwell showed him the package that the camera was mailed in and told him that he had sold it to a police officer. He also told him that the camera had the same serial number as one stolen from the Institution. Mr. Shandera again told Constable Maxwell that he had no idea that the camera was stolen and stated that he had had the cameras for over a month. He agreed that his fingerprints were on it.

314        Mr. Shandera told Constable Maxwell that he had purchased the cameras from a man in a pickup truck at the Drumheller Canadian Tire parking lot for his children. The seller said he had purchased them at an auction in Calgary.

315        The second camera was also recovered from the purchaser in Quebec. It had the serial number recorded at the Institution.

316        Ms. Shore interviewed Mr. Shandera on October 26, 2012. He denied removing the cameras from the Institution and advised her that he purchased them from someone identified as Glenn in the Drumheller Canadian Tire parking lot. He told the board of investigation that he purchased the cameras for $50 a piece and that he felt that Mr. Farmer and Mr. Campbell were setting him up.

317        The board of investigation concluded that Mr. Shandera had probably removed the cameras and that he had sold them using his eBay account as there was little likelihood in its view that someone else had stolen them and sold them to Mr. Shandera.

318        Mr. Emann accepted the findings in the investigation report, which were that a reasonable person would conclude that Mr. Shandera removed the cameras from the Institution and attempted to sell them on eBay.

319        With respect to Mr. Shandera’s harassment claims, the reviews of those claims took place outside the misconduct investigation process. Mr. Emann concluded that they were raised to deflect attention from the grievor’s alleged misconduct. Mr. Shandera did not raise medical issues with him other than in the context that the grievor was not fit to return to work.

320        Upon a review of the evidence, I am satisfied that on a balance of probabilities, the CSC owned the two cameras. In the evidence before me, Ms. Treller produced receipts for purchasing them. It was not disputed that they were kept in a locked storage area in the building where the storage is located at the Institution. It was not disputed that the grievor was found in possession of the cameras without authorization, that he posted them for sale on eBay, and that he sold one to an RCMP officer in Alberta and the other to a person in Quebec.

321        The grievor advised Constable Maxwell during the police investigation and Ms. Shore during the disciplinary investigation that he did not remove them from the building  but that he purchased them from an individual in the Drumheller Canadian Tire store parking lot.

322        The grievor did not testify. As stated by Justice Sopinka in The Law of Evidence in Canada, 3rd Edition, at paragraph 6.449, an adverse inference can be drawn in civil cases when,

… in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist the party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

323        The fact that the grievor did not testify in my view is an implied admission that his evidence would not support his theory of the case.

324        The principles set out in Faryna are that the real test of the truth of a witness’s story must be its harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions.

325        In my view, applying that test to the evidence, I conclude that it is highly improbable that an unknown third party gained access to a medium-security institution, gained access to a secure facility there, gained access to a locked storage area in that building, removed the cameras, exited that secure facility without detection, and sold those cameras at auction to another unknown person who in turn sold them from the back of his truck to the grievor. Coincidentally, the grievor was a correctional manager at the Institution and had unrestricted access to the facility and to the keys to the building where the cameras were stored, and he acknowledged that he had been alone in the building several times over several months during his shifts to eat his lunch.

326        With respect to the allegation that Mr. Shandera was being set-up by Messrs. Farmer and Campbell, given the fact that Mr. Shandera admittedly possessed the cameras and attempted to sell them on eBay, I cannot conceive as to how Messrs. Farmer and Campbell could have accomplished it.

327        I am satisfied that the employer met its burden of demonstrating that on a balance of probabilities, which is the burden in civil cases, it is more likely than not that the grievor removed the two cameras without authorization from the Institution and then attempted to sell them on eBay.

 B. The evidence with respect to the theft of $1000

328        Ms. Broad worked in the finance office. Its hours of operation in 2011 were from 08:00 to 16:00, Monday to Friday. The building was locked at all other times. The vault was locked just before the cashier left for the day. The cashier held two separate keys, one for the building, and one for the vault. The vault had a deadbolt and a separate key. Petty cash was kept in a cabinet drawer in the vault that had its own key.

329        On Friday September 23, 2011, she was the acting cashier. The night before, she had counted the petty cash with the cashier who was taking the Friday off. It balanced. She did not count the petty cash before she went home on the Friday as it did not have to be done every day.

330        She recalled that one roll of $1 coins, one roll of $2 coins, and a number of $50 and $100 bills were in the drawer at the end of the Friday. She locked the door, turned out the light in the vault, and locked it. She took the cashier’s keys home with her. She did not return to the Institution over the weekend; nor did she share the keys with anyone.

331        Ms. Volb, who also works in the finance office, does not normally have a key to the vault. As the acting finance analyst was to be absent the following Monday, when Ms. Broad left on the Friday, she gave the keys for the vault and the petty cash drawer to Ms. Volb, who put them in a drawer with her pens on the left side of her desk. That drawer has no lock. When she returned on the Monday, the keys were in the drawer where she had left them.

332        On Monday, September 26, 2011, Ms. Broad found that the coin rolls were missing as well as the $50 and $100 bills. She counted the cash. Just over $1000 was missing. It was later determined by the Finance Department that the exact amount of money missing was $1004.54. She did not notice any forced entry to the vault.

333        Constable Maxwell also checked the vault’s door. It was a thick wooden door secured with a deadbolt. There was no evidence that it had been disturbed.

334        The log of the surveillance camera covering the entrance to the building where the finance office is located, the surveillance video of the finance office stairwell there, and the key use record are clear that on Friday, September 23, 2011, in the evening, other than two correctional officers carrying out a fire punch for some four minutes between 21:00 and 21:04, the grievor was in the building from 21:42 until 22:04.

335        During that time, at 21:57, activity occurs in the staff side of the finance office. The light to the vault is on, and some movement can be seen, which continues until 22:03.

336        On Saturday, September 24, 2011, two correctional officers enter the building to carry out a fire punch at 20:47. They exit at 20:51.

337        The surveillance video shows the grievor entering the building where the finance office is located at 23:44 on the Saturday at issue and remaining inside until 00:22 on Sunday, September 25, 2011.

338        During that time, at 23:47, the surveillance video recorded movement in the finance office. The vault door is open and the light is on. Movement continues until September 25, 2011, at 00:11.

339        The fire punch keys do not provide correctional officers access to the finance office.

340        On Monday, September 26, 2011, Ms. Green-Broad found that approximately $1000, comprising a roll of $1 coins, a roll of $2 coins, some fifteen $50 bills, six $20 bills, three $10 bills, and six $5 dollar bills were missing from the cashier’s drawer till. There was no evidence that the door to the vault or its drawers had been forced open.

341        With respect to the discrepancies in the surveillance video timestamps, I accept Ms. Shore’s evidence that the systems were not synchronized and that different functions were on different systems. Further, the keypress is not on the same system as the surveillance cameras. I also conclude that Ms. Baker’s error in recording that the grievor entered Building 30 at 23:44 on Saturday September 24, 2011 as the surveillance shows that the grievor in the stairwell at 23:26.

342        As the grievor did not testify, I also conclude that an adverse inference may be drawn that his evidence on this issue would not support his defence.

343        I conclude that the employer has established on a balance of probabilities that it is more likely than not that Mr. Shandera took the cash from the vault. The surveillance video of the finance stairwell, together with the log covering the entrance and the exit to the building, establish that he was in that building during the times that the vault was breached. There is no evidence to suggest anyone else was in the building at the material times. It is also pertinent that Mr. Shandera had the means to enter the building.

344        The grievor had the burden of advancing a medical defence. He argued that he had informed his supervisor before his suspension that he was seeing a health practitioner for stress and anxiety issues related to the workplace. The argument was advanced in the context that the employer ignored his rights and requests when he asked it to stop pressuring him for a disciplinary interview when he was medically unfit and seeking treatment. It preyed on his disability to elicit information to use against him in the criminal proceedings.

345        The argument was not advanced that the employer had failed in its duty to accommodate the grievor on account of his medical issues such that it would lessen his responsibility for committing theft.

346        There is evidence that during the summer and fall of 2011, Mr. Shandera was under workplace stress and was being treated for health issues, which was confirmed in a medical report.  The report does not discuss his health issues in relation to his alleged misconduct. No link has been established between the medical evidence and the alleged misconduct.

347        Mr. Emann acknowledged receiving information after Mr. Shandera was suspended that Mr. Shandera was unable to work or to participate in the CSC’s investigation due to health issues and that he was under a physician’s care. There is no evidence to suggest that Mr. Emann relied upon Mr. Shandera’s health issues in his reasons for terminating Mr. Shandera’s employment on January 15, 2013.

348        When during the criminal investigation, Officer Black asked the grievor whether workplace stress had led to the thefts, he answered that he had not done anything and that he did not know.

349        I carefully reviewed the jurisprudence that the employer cited and concluded that no matter the test that is applied to the circumstances of this case, the grievor has not established a medical defence as there is no demonstrated link or nexus between his  health condition and the misconduct. In the absence of that link, clearly, there has been no displacement of responsibility from the grievor to render his conduct less culpable.

350        Turning to arbitrator Christie’s principles in MacMillan, hypothetically, even if that criteria had been established in the evidence, given that the grievor has not admitted responsibility for the misconduct, then there is no evidence to suggest that he has been rehabilitated.

C. The appropriateness of the penalty

351        The jurisprudence of the Board and its predecessors, as summarized in King, reflects the principle that a termination of employment is appropriate in cases of fraud or theft and that “[h]e who robs the Crown is not entitled to be employed by the Crown.” Further, correctional officers and managers are to be held to a higher standard of conduct than employees who perform other duties (see Bridgen).

352        When assessing aggravating and mitigating factors to determine whether a viable employment relationship can be re-established, there must be some recognition of culpability or some responsibility for the misconduct. The grievor has not taken responsibility for his actions.

353        In all the circumstances, I cannot conclude that the termination penalty was excessive. Warden Emann was justified in concluding that the employment relationship had been broken beyond repair by the grievor’s actions.

354        For all of the above reasons, the Board makes the following order:

IV. Order

355        The grievance is dismissed.

March 17, 2017.

David Olsen,
a panel of the Public Service Labour Relations and Employment Board