Federal Public Sector Labour Relations and Employment Board Rejects Claimant's Grievances

OUTCOME: Dismissed

Date: 202 60216 File s: 566-02-42432, 47012, 49254, and 50001 Citation: 2026 FPSLREB 16 [NAME_1] and Employment Board Act and [NAME_1] Act Before a panel of the [NAME_1] and Employment Board [NAME_2] [NAME_5] ( [NAME_6]) Respondent Indexed as [NAME_4] v. Deputy Head ([NAME_6]) In the matter of individual grievances referred to adjudication Before: [NAME_8], a panel of the [NAME_1] and Employment Board For [NAME_11]: Himself For the Respondent: [redacted] ADVANCE \y 657 Heard at Calgary, Alberta, April 29 to May 2 and November 24 to 27, 2025 .

REASONS FOR

DECISION I. Overview [ 1 ] This decision is about three disciplinary actions taken by the [NAME_6] ([NAME_15]) against [NAME_2] (“[NAME_11]”), a correctional officer formerly in its employ. [ 2 ] First, on August 10, 2020, the [NAME_15] imposed a financial penalty on [NAME_11] equivalent to three days’ pay because of a phone call he made with the [NAME_16]’s (CN) police office. [NAME_11] observed a CN [NAME_17] police officer making a traffic stop, and he thought that the way the officer made the traffic stop was unsafe. After he got to work, he called the CN [NAME_17] police office to complain. During that call, which was recorded, he made offensive and threatening remarks about CN [NAME_17] police officers. I have denied the grievance against that financial penalty. [NAME_11]’s remarks were so offensive that they warranted discipline, and a financial penalty of three days’ pay was not an excessive level of discipline for that misconduct. [ 3 ] Second, on September 2, 2022, the [NAME_15] suspended [NAME_11] for 200 hours (the equivalent of 25 days) without pay for sexual harassment. The harassment included inappropriately touching the leg of a co-worker and making a series of inappropriate and unwelcome remarks to and about his female co-workers. [NAME_11] denies that he touched his co-worker and denies making any inappropriate or unwelcome comments. I have denied the grievance against that suspension. In essence, I believe the testimony of the employer’s 7 witnesses and do not believe [NAME_11]’s bald denial of all the actions that he is accused of. [NAME_11]’s actions warranted discipline, and a suspension of 25 days was not only not excessive but also an extremely light consequence in the circumstances. [ 4 ] Finally, the [NAME_15] suspended [NAME_11] without pay and then terminated his employment, backdated to the first day of his suspension, for more sexual harassment and inappropriate remarks that he made within weeks of returning to work after his suspension. [NAME_11] presented grievances against both his suspension and termination. The harassment included inappropriately touching the leg of a different co-worker, making a series of inappropriate and unwelcome remarks to and about female co-workers, other inappropriate sexualized remarks, and making light of his earlier suspension. [NAME_11] denies touching a co-worker and making any inappropriate remarks. I have denied the grievances. In essence, I believe the evidence of the employer’s six witnesses and do not believe [NAME_11]’s bald denial of these events. I also concluded that termination was not an excessive penalty in this case. The employer’s decision to backdate the termination renders moot the grievance against the unpaid suspension. [ 5 ] My detailed reasons follow.

II. Background to the grievances and [NAME_11] [ 6 ] This decision is about three different disciplinary actions spanning three years and two different correctional institutions. Therefore, I will begin with an overall background to [NAME_11]’s employment. [ 7 ] [NAME_11] was a correctional officer with the [NAME_15]. He began working with the [NAME_15] on April 15, 2009. He worked at Pacific Institution before transferring to [NAME_18] on March 20, 2019, for a promotion from CX-1 to CX-2. The first disciplinary event occurred on July 1, 2020, while he was working at [NAME_18]. [ 8 ] [NAME_11] deployed to the [NAME_15]’s [NAME_19] as a CX-2 correctional officer. The precise date of that deployment is unclear; the deployment offer says that it is effective on March 31, 2021, but an investigation report indicates that he deployed on May 27, 2021, and [NAME_11] could not remember the date of his deployment when he testified. He was promoted on an acting basis to a correctional manager position (CM-1) on September 23, 2021. That acting promotion was cut short on October 19, 2021, after the employer received the first of the complaints that I will describe later. He was originally permitted to work as a CX-2, but sometime before February 2022, he was sent home with pay pending the result of the investigation into his misconduct. That investigation concluded on February 9, 2022. [NAME_11] attended a disciplinary hearing on March 31, 2022. Ultimately, he was suspended without pay for 200 hours (25 days) on September 2, 2022. [ 9 ] [NAME_11] did not return to work immediately after the conclusion of his suspension. Instead, he returned to work on May 1, 2023. He was accused of additional wrongdoing and, this time, suspended without pay effective October 27, 2023. This time, the investigation proceeded more quickly and concluded on November 27, 2023. [NAME_11] attended a disciplinary hearing on January 24, 2024. The [NAME_15] terminated his employment on April 5, 2024, effective October 24, 2023 (i.e., backdated to the first day of his suspension without pay). [ 10 ] Putting aside the events for which [NAME_11] was disciplined, the evidence discloses two different impressions of [NAME_11]. [ 11 ] First, the evidence is that [NAME_11] was good at the duties of a correctional officer. He was promoted almost immediately after joining the [NAME_19]. Even some of the employer’s witnesses who testified about his misconduct also testified that he was an effective correctional officer. [ 12 ] Second, and by contrast, [NAME_11]’s employment was littered with discipline for making inappropriate comments toward his co-workers. The collective agreement governing his position has what is commonly called a “sunset clause”, such that discipline is struck off an employee’s record after two years. Therefore, I do not know about his disciplinary history before 2018 (i.e., two years before the July 1, 2020, incident that is before me). However, he was disciplined on March 6, 2019, for disrespectful and abusive communication with employees at the National Monitoring Centre and for telling management to “go f*** yourselves”. That discipline was originally a two-day financial penalty but was reduced to a written reprimand in the grievance process. He was disciplined again on May 2, 2019, for a Facebook message accusing management of “corruption and incompetencies”. That discipline was originally a three-day financial penalty, but it was reduced to one day through the grievance process. [ 13 ] This disciplinary history became relevant to the 25-day suspension, as I will explain later.

III. Process of this adjudication [ 14 ] The hearing of this grievance took place from April 29 to May 2, 2025, and continued from November 24 to 27. The employer presented its evidence about each of the grievances (i.e., the 3-day, 25-day, and termination cases) before [NAME_11] testified. The employer called 2 witnesses about the 3-day suspension: [NAME_22] with the CN [NAME_17] police service, and [NAME_25], the correctional manager who imposed the discipline. The employer called 8 witnesses about the 25-day suspension: 7 correctional officers who either experienced or observed [NAME_11]’s misconduct, plus 1 of the 2 investigators of that allegation. The employer called 7 witnesses about the termination: 6 correctional officers who either experienced or observed the misconduct, plus 1 of the 2 investigators. Additionally, the employer called 2 witnesses about both the 25-day suspension and the termination: [NAME_27], who received the allegations and managed part of the investigation process, and [NAME_28], the warden of [NAME_19] who imposed the discipline both times. [ 15 ] [NAME_11] represented himself. He testified about all three disciplinary measures. At [NAME_11]’s request, I led his direct questioning by asking him open-ended questions about the principal allegations against him. [NAME_11] could deviate from those open-ended questions, and he often did. The [NAME_15]’s counsel cross-examined him. [NAME_11] did not call any other witnesses.

IV. Approach to discipline grievances [ 16 ] I have followed the three-part approach set out in [COMPANY_31]. v. [NAME_33], Local P ‐ 162 , [1977] 1 C.L.R.B.R.

1. This approach requires me to decide three questions: whether the employer has proven that [NAME_11] committed acts of misconduct that justified some level of discipline; if so, whether the level of discipline was excessive considering all the circumstances of the case; and finally, if so, what is the appropriate level of discipline. The employer bears the burden of proof in discipline cases for all three elements of that approach. [ 17 ] [NAME_11] spent considerable time during his testimony and closing arguments criticizing the [NAME_15]’s investigations of his misconduct. He criticized the investigation that led to his 3-day financial penalty because management did not care enough about his point of view. He criticized the investigation that led to 25-day suspension because the investigators concluded that he was not credible in that investigation. He made a similar criticism of the investigation that led to his termination. He criticized the investigations that led to both his 25-day suspension and his termination because the investigators did not dig into the personal backgrounds of the complainants and witnesses who provided evidence against him and because they did not look for more witnesses who would support him (even though he was asked to identify any other witnesses and refused to do so). [ 18 ] I gave no weight to the investigation reports. [ 19 ] As the [NAME_1] and Employment Board (“the Board”) stated in [NAME_34] v. Deputy Head (Department of Transport) , 2010 PSLRB 70 (set aside on judicial review but not on this point): … 16 Grievance adjudication is a de novo proceeding (see Tipple v. Canada (Treasury Board) , [1985] F.C.J. No. 818 (C.A.) (QL)), which means that I need not defer to the conclusions of the decision maker who ruled on the grievance at the final level or the conclusions of the investigators who investigated the harassment complaint. In reaching my decision, I must consider only the evidence before me at the hearing. … [ 20 ] I have based my decision on the evidence in the hearing, not the evidence that the investigators heard. I have also given no weight to the investigators’ opinions about the credibility of any of the witnesses.

V. The three-day financial penalty A. Facts leading to the three-day financial penalty [ 21 ] The facts leading to the three-day financial penalty are largely not in dispute. [ 22 ] For context, the CN [NAME_17] police service is a police service that conducts police operations on railway property under the Railway Safety Act ( R.S.C., 1985, c. 32 (4th Supp.)). They have been in existence since 1923. Traditionally, the jurisdiction of the CN [NAME_17] police service extends for a quarter mile on either side of the [NAME_17] line or railway property. [ 23 ] On July 1, 2020, [NAME_11] observed a CN [NAME_17] police officer stop a vehicle that did not stop properly at an intersection. He thought that the way the CN [NAME_17] police officer conducted the traffic stop jeopardized his safety by going out into traffic to stop the offending vehicle and by not wearing a high-visibility vest when he got out of his police car. [ 24 ] [NAME_11] explained that he had a previous experience with a CN [NAME_17] police officer conducting a traffic stop that he thought was unsafe which required him to slam on his brakes. He complained to the CN [NAME_17] police office about that earlier event but says that it did nothing about it. [ 25 ] [NAME_11] continued driving to work that day and started his shift. During a break, he used the [NAME_15]’s telephone to call the CN [NAME_17] police office to complain about the traffic stop. The telephone call was recorded, so I know exactly what he said. [ 26 ] First, [NAME_11] reached a dispatcher. He asked to speak to his supervisor. When asked why, he immediately said this: “One of your retarded officers, if he wants to get hit by a car, please let me know so I can smoke his ***.” [ 27 ] The dispatcher told [NAME_11] that his call was being recorded, and [NAME_11] said this: “I don’t give a f *** .” The dispatcher asked for [NAME_11]’s location and information about the incident that he was calling about. [NAME_11] said this: … These guys running around with a gun and a uniform. They’re parking their vehicle on private property. They’re driving like morons. They’re coming out of their vehicles, making traffic stop [ sic ] without wearing a visi-vest, a reflective vest. And if they want to get hit by a car, please tell me so I can get my bigger truck and I can run his ass over. And I’ve got a dash Cam camera on my car and I’ll be able to prove that he’s the one that jumped in front of my vehicle. … [ 28 ] [NAME_11] was transferred to [NAME_35]. [NAME_35] introduced himself, [NAME_11] immediately said this: … We’re having this conversation for the second time now in about four or five months and I’m getting tired of it. I’m either going to make a formal complaint and have this investigated and dealt with, or the next time I’m gonna run over one of your members and he’s gonna have his f****** funeral in the front of my car. … [ 29 ] [NAME_11] went on to describe his experience with the traffic stop. His explanation included his recollection of the following interaction between him and the officer conducting the traffic stop: “I said on the scale of one to 10, how stupid are you? He looks at me, he goes, excuse me. I said yeah, do you want to get hit by a car? Because if you do, please tell me. I will run over your *** next time and let the investigation begin at that point.” [ 30 ] He later added that he told the officer this: “I told him to go f*** himself and next time to put on a vest, a visi-vest or reflective vest, and then do his job.” [ 31 ] He said that he wanted to make a formal complaint. He ended that explanation with this: “Or next time he jumps in front of my car, as long as I got my dash cam, it will all be recorded and then we’ll see what happens. It’s not gonna be pretty.” [ 32 ] [NAME_11] provided his name to [NAME_35]. In addition, [NAME_11] bragged about how many people he knew working for the CN [NAME_17] police and other police services. He also told [NAME_35] that he himself worked in public safety. [ 33 ] [NAME_35] testified that he considered what [NAME_11] said to be a threat against CN [NAME_17] police officers. He referred this matter to the Royal Canadian Mounted Police (RCMP), but no criminal charges were laid against [NAME_11]. Additionally, he informed the [NAME_15] about this phone call. He also informed the [NAME_15] about an incident on July 17, 2020, when [NAME_11] raised his middle finger to a CN [NAME_17] police officer, but the [NAME_15] did not rely on that incident in support of any discipline, so I do not need to decide whether it occurred. [ 34 ] [NAME_11] admits that the phone call took place. He testified that he was upset that day about what happened at the traffic stop. Both during the [NAME_15]’s disciplinary hearing and during this hearing, he said that he wished that he had used different words; however, he also spent considerable time during both his testimony and the disciplinary hearing trying to justify why he was upset at the CN [NAME_17] police service’s traffic stops in his area. B. The [NAME_15]’s Code of Conduct [ 35 ] The [NAME_15]’s letter of discipline states that [NAME_11]’s conduct breached the [NAME_15] of Discipline and Standards of Professional Conduct (“the Code”), also known as Commissioner’s Directive 60 . As described in earlier Board and Court decisions (including [NAME_37] v. Canada (Attorney General) , 2009 FCA 254, and [NAME_38] v. Deputy Head ([NAME_6]) , 2024 FPSLREB 167), the Code is a code of conduct for the [NAME_15]’s employees. A breach of the Code can amount to misconduct justifying a disciplinary response. [ 36 ] Specifically, the [NAME_15]’s letter of discipline alleged breaches of articles 7(b) and (c) of the Code, which read as follows: … 7. An employee has committed an infraction, if they: … b. are abusive or discourteous by word or action, to the public, while on duty c. act, while on or off duty, in a manner likely to discredit the Service … C. [NAME_11]’s phone call was likely to discredit the [NAME_15] [ 37 ] In light of the [NAME_15]’s stated grounds for discipline, and since there is no dispute about the content of [NAME_11]’s telephone call with the CN [NAME_17] police, the main issue is whether that phone call was likely to discredit the [NAME_15]. [ 38 ] As the Federal Court of Appeal explained in [NAME_37] , the [NAME_15] does not need to lead direct evidence of any discredit to its reputation that flows from [NAME_11]’s conduct. Instead, it said at paragraph 62 that this “… question is one which calls for the application of common sense and measured judgment.” [ 39 ] The case law about this issue has never fashioned a clear test for what constitutes discreditable conduct, and I do not propose to craft one in this case either. [ 40 ] However, in [NAME_38] , at para. 94, the Board referred to whether “… a reasonably informed bystander would conclude that [NAME_11]’s off duty conduct … was likely to discredit the [NAME_15] …”. [ 41 ] Additionally, the offence of discreditable conduct also arises in police discipline matters. While police discipline is different in both substance and process from the discipline of other public servants, I still found it a useful source for how to describe what constitutes discreditable conduct. The test in police discipline has been described as whether a reasonable person in society, informed of all the pertinent circumstances, and understanding the realities of police work in general and the police force in particular, would be of the opinion that the conduct of the officer casts discredit on the police, and that the conduct is sufficiently linked to the duties and functions of the officer to give the police force a legitimate interest in disciplining the officer (see, for example, [NAME_39] v. Canada (Attorney General) , 2021 FC 118 at para. 22) . [ 42 ] In both examples, decision makers considered the conduct from the perspective of a reasonably informed person. I have decided to do the same in this case. I have also decided that in this case, the perspective should be of a person reasonably informed about the conduct, the duties, and functions of a correctional officer and the degree of nexus between the function of a correctional officer and the conduct. [ 43 ] In this case, I have concluded that [NAME_11]’s conduct would likely discredit the [NAME_15]. The conduct itself was severe, including what could reasonably be described as threats to harm or even kill a CN [NAME_17] police officer. A correctional officer holds the status of a peace officer, meaning that [NAME_11] was expected to enforce and uphold the law (see Re Flewwelling and Adjudication Board , 1985 CanLII 3069 (FCA) at para. 18, [NAME_40] v. Deputy Head ([NAME_6]) , 2012 PSLRB 10 at para. 120, and [NAME_41] v. Deputy Head ([NAME_6]) , 2020 FPSLREB 38 at para. 154) and not make these types of threats. A reasonable person would also expect peace officers to operate in comity with each other, not to threaten each other. Finally, the nexus between [NAME_11]’s employment and the conduct is twofold. First, he made the telephone call at work. Second, he identified himself as someone who works in the public safety industry (which is how [NAME_35] was able to find out that he worked for the [NAME_15] and report his behaviour to his employer). I do not need to infer a nexus in this case; the nexus between the conduct and his employment is direct. [ 44 ] For these reasons, I have concluded that a reasonably informed person would conclude that [NAME_11]’s actions brought discredit on the [NAME_15]. D. The three-day financial penalty was appropriate [ 45 ] I have also concluded that the three-day financial penalty was not an excessive response to [NAME_11]’s discreditable conduct. [ 46 ] [NAME_11]’s submissions focussed on the actions of the CN [NAME_17] police service. He argued that [NAME_35] should not have reported him to the [NAME_15] or the RCMP and that the CN [NAME_17] police service should have investigated his complaint more thoroughly. These are not mitigating factors in assessing the appropriate penalty. On the contrary, that [NAME_11] focussed on the actions of the CN [NAME_17] police service demonstrates that he has not taken accountability for his actions and does not understand the seriousness of what he did. He admitted that he wished that he had used different words; that is not the same as a full acknowledgement that what he did was wrong or a commitment not to do it again. [ 47 ] [NAME_11] also argued that he had been angry and upset and that his statements reflected those emotions. It is clear from both the content of the phone call and the tone and speaking voice that he used on the phone call that he was upset. That does not excuse or mitigate his misconduct. He was not disciplined for something he said or did at the scene of the traffic stop in a momentary burst of anger. He drove to work, started working his shift, went on his break, and then called the CN [NAME_17] police service dispatcher. He had time to calm down, but he still made those threats. [ 48 ] Finally, [NAME_11] had a recent history of being disciplined for similar misconduct. He was disciplined on March 8, 2019, for (among other things) telling management to “go f*** yourself” during a phone call; that discipline was originally a two-day penalty but was reduced to a reprimand during the grievance process. He was disciplined on May 9, 2019, for accusing management of “corruption and incompetencies” on a Facebook page; that discipline was originally a three-day penalty but was reduced to one day in the grievance process. In this hearing, he testified about those two grievances and tried to justify his misbehaviour by saying that management was in the wrong, and he was calling it out on it. This was the third time in just over a year that he had been disciplined for saying inappropriate things, with no acknowledgement that he needs to control what he says. This is a classic example of progressive discipline. [ 49 ] The [NAME_15] submitted that this penalty is already at the lower end of the spectrum for this type of misconduct. I agree. Considering the severity of the misconduct, the previous discipline history, and [NAME_11] continuing to blame the CN [NAME_17] police service for his misconduct, I have concluded that the [NAME_15] has justified the three-day financial penalty. This grievance is denied.

VI. The discipline for sexual and other harassment A. Overview of the allegations [ 50 ] The 25-day suspension and termination grievances come down to a question of the credibility and reliability of witnesses. [ 51 ] The 25-day suspension is about the following: 1) [NAME_11] sexually harassed [NAME_42] by: · telling her that “I like my chicks thick”; · constantly bringing her cookies and other food; · trying to force her to take food directly off his plate; · cat-calling her with “damn, girl you are looking fine” (an incident observed and reported by [NAME_44]); · constantly trying to get invited to her house; · touching her on her thigh; and · hitting on her to the point that she told him that she would punch him in the throat if he did not stop (an incident observed by [NAME_47]). 2) [NAME_11] sexually harassed [NAME_50] by: · making comments about her having the right weight limit on her bed (for sexual purposes); · making comments about how she would look in a bathing suit; · after she dyed her hair, saying “I don’t like that colour on you” (an incident overheard by [NAME_53]); and · when speaking with another correctional officer ([NAME_56]), referring to her as “my girl [NAME_52]”, saying that he was trying to find a nice house to live in with [NAME_58], that he was looking for a ring for her, and that he was about to leave work to propose to her at a slow-pitch tournament. 3) [NAME_11] harassed or threatened [NAME_59] by saying to her, “we’ll have words in the parking lot later” after they had an argument (an incident observed by [NAME_60]). 4) [NAME_11] hit on [NAME_63] by asking her whether she was single, telling her that most marriages end in divorce after hearing that she was married, and how many partners who work at the [NAME_15] “cheat” on their spouses. [ 52 ] [NAME_11] flatly denies saying or doing any of these things and flatly denies making any comments that could be characterized as harassing or inappropriate in nature. [ 53 ] The termination grievance is about the following: 1) whether [NAME_11] touched [NAME_64] on the thigh; 2) whether he called [NAME_67] a “b****” or a “f***ing b****” (an incident overheard by [NAME_70] and [NAME_72], although they differed in recalling whether it was “f***ing b***” or just “b***”); 3) whether he referred to another correctional officer as “the girl with the big t***” in a conversation with two male correctional officers, only one of whom testified ([NAME_75]); and 4) whether, during a road trip with two other correctional officers (only one of whom testified, [NAME_77]) to do prisoner transfers, he made sexualized comments about his personal life and made light of his paid suspension during the investigation into conduct that led to the 25-day suspension by saying that he hoped that someone else would accuse him of harassment because he wanted another paid vacation. [ 54 ] [NAME_11] flatly denies saying or doing any of these things. [NAME_11] acknowledges getting into an argument with [NAME_80] but says that he never used those words. He also agrees that he went on a road trip with the other correctional officers but denies saying any of the things attributed to him. B. Credibility and reliability [ 55 ] The Board recently set out the principles of assessing the credibility of witnesses in [NAME_81] v. Deputy Head (Canada Border Services Agency) , 2025 FPSLREB 85 at paras. 235 to 288, another case about sexual harassment. [ 56 ] That case was different from this one in three ways. First, [NAME_11] in [NAME_81] harassed only one co-worker, unlike in this case, in which [NAME_11] harassed six of them ([NAME_82], [NAME_58], [NAME_59], [NAME_63], [NAME_83], and [NAME_80]) and made inappropriate sexualized remarks about women to two more who testified ([NAME_84] and [NAME_85]). Second, the harassment in [NAME_81] went unobserved by any bystanders and every incident was a case of he said-she said, unlike this case in which several of the harassing incidents were observed by bystanders who testified. Third, [NAME_11] in [NAME_81] denied some incidents, said that other incidents were misdescribed by the complainant, and admitted that some incidents occurred but said they were not harassing. That is the more normal situation in a harassment case. This case is unusual in that [NAME_11] denies every single alleged incident and in some cases (such as [NAME_83]’ complaint), denies even being in the same room as she was that day. [ 57 ] Despite those differences, the following principles articulated in [NAME_81] apply to this case too: · credibility is not solely about the demeanour of a witness (paragraph 236); · the key is to look at the circumstances of the case and decide which version of events is more plausible to a reasonable and informed person (paragraph 237); and · decision makers often apply the following factors when assessing credibility: o the likelihood of a version of events (paragraph 238), o a witness’ interest in testifying; i.e., whether they had a reason to lie (paragraphs 238, 257, and 269), o whether particular facts are corroborated (paragraphs 237 and 260), and o the consistency or lack of contradiction on essential elements (paragraph 242). [ 58 ] In almost any other case, I would go through each of the allegations against [NAME_11] in detail, set out the precise testimony of everyone involved in the incident, and make my findings about each detail. However, [NAME_11]’s position makes that unnecessary. He flatly denies everything. Therefore, I assess his credibility and decide whether I should accept his reasons why I should discount the credibility of the other 13 witnesses to his misconduct. [ 59 ] I acknowledge that I can accept all, some, or none of a witness’ testimony (see, for example, R. v. Pan , 2025 SCC 12 at para. 199). In this case, as I will explain, I accept almost none of [NAME_11]’s testimony. [NAME_11] flatly denied of every single incident (except for the one involving [NAME_80], where he admits an argument at least) and argues that every single witness who testified about these incidents was lying. It is difficult to accept some, instead of all or none, of the witnesses’ testimony considering [NAME_11]’s all or nothing approach. C. [NAME_11]’s theory of the case lacks any credibility [ 60 ] [NAME_11] attributes all the complaints made against him to [NAME_59]. He says that there was an incident in which he criticized her in private. She had recently become engaged and wore her wedding ring to work. [NAME_11] says that she showed the ring to an inmate, who touched her hand to look at the ring. [NAME_11] says that he pulled [NAME_59] aside to warn her against that behaviour. [NAME_59] acknowledges wearing her engagement ring to work for a time and that inmates saw it; she denies that an inmate grabbed her hand and denies that [NAME_11] criticized her as a result. [ 61 ] [NAME_59] testified that she does not like [NAME_11] because of his attitude toward her and other female co-workers, namely, he undermines them and takes over certain duties from them. She also testified that he hit on her as well. [NAME_11] was not disciplined for these interactions, and so I do not need to decide whether her criticisms are warranted. She candidly admits that she “was straight out being a b****” toward [NAME_11]. [ 62 ] In short, [NAME_11] argues that because of his criticism of [NAME_59], she convinced people to make up these allegations against him and convinced every single person who gave evidence to the investigators (22 of them, 13 in the first investigation, and 9 in the second) to lie and convinced all 13 of the employer’s witnesses to lie when testifying before the Board. [ 63 ] There is simply no evidence that [NAME_59] was the mastermind behind a conspiracy against [NAME_11]. [ 64 ] The [NAME_15]’s counsel asked [NAME_59] about this during her examination-in-chief, and she flatly denied it. She said the allegation that she orchestrated it made her angry, and she never “stirred up” staff against [NAME_11], as he alleged. [NAME_11] did not ask [NAME_59] about this theory during her cross-examination. He asked her whether she knew about all the complaints against him, and she said that she did not know about the other complaints until just before he was disciplined. [NAME_11] asked [NAME_63] about whether she had any discussions about him with [NAME_59], and she said that the only one was the parking lot incident. She admitted being friends with [NAME_59]. He asked [NAME_58] similar questions, and she said that she did not speak with [NAME_59] about her incidents with [NAME_11]. [NAME_11] did not ask any other witnesses about this theory. [ 65 ] In his testimony, [NAME_11] said that [NAME_59], [NAME_58], and [NAME_82] are friends. He provided nothing to corroborate that theory and did not testify that any of the other witnesses are friends with each other or, specifically, with [NAME_59]. [ 66 ] Later, [NAME_11] testified that he believed that [NAME_85]’s testimony was coached — but left unsaid by whom or why. [ 67 ] Finally, [NAME_11] testified that everyone who works at [NAME_19] fears [NAME_59]. Again, he provided no evidence to corroborate that. [ 68 ] During his closing argument, I asked [NAME_11] to explain his theory further. He started by stating that all the witnesses are friends. I pointed out that that was not the case. Then, he changed tack and argued that prisons are a unique environment, that there are always a handful of correctional officers who influence others, and that everyone at [NAME_19], but especially the witnesses, is fearful of [NAME_59]. When I pointed out there was no evidence of that, he acknowledged there was no evidence to support his theory but argued that I could not understand unless I had worked in a prison, so I should accept it anyway. [ 69 ] I do not believe [NAME_11]’s theory. [ 70 ] The idea that an employee, enraged about being criticized, would successfully conspire with 12 other witnesses to perjure themselves and invent a series of accusations against another employee is far-fetched, to say the least. Even if I were inclined to give any credence to this theory, [NAME_11] has not established any evidentiary basis for it. He led no evidence that several of the witnesses even know [NAME_59], let alone that they are either friends with her or afraid of her. D. [NAME_11] is the only interested witness with a reason to lie [ 71 ] I agree with what the Board said in [NAME_81] on this point: … [269] [NAME_11] is an interested party. His livelihood is on the line, and he has had years to think about these events in preparation for the hearing. Although he had an incentive to paint himself in a positive light, this alone is not a determining factor with respect to his credibility. The jurisprudence is clear that it does not always follow that self-interest means that a [NAME_5] is not credible. It is merely a factor to consider when determining witnesses’ relative credibility …. … [ 72 ] The same applies in this case. [NAME_11]’s livelihood is on the line, and he has had years to prepare for the hearing. This is not determinative; not everyone lies out of self-interest. In my opinion, this is a factor of relatively low weight. However, it is still a factor. [ 73 ] By contrast, none of the [NAME_15]’s witnesses had any incentive to lie. None of them have anything to gain out of [NAME_11]’s suspension or dismissal. In particular, [NAME_82] stopped working at [NAME_19] in 2021; first she went on leave, and then, she resigned in 2024. She says that she left because of her treatment by [NAME_11]. She no longer works there and so has no incentive to see that [NAME_11]’s suspension (all that is at issue in her case) is upheld. [NAME_86] has been on a leave of absence since 2022 for reasons unrelated to this case, so she also has no interest in whether [NAME_11]’s suspension is upheld. E. [NAME_11] was an unreliable witness [ 74 ] The reliability of a witness is not always the same thing as their credibility. A witness can sincerely believe that their evidence is true, but that does not make it reliable, particularly when their recollection contains contradictions or is inconsistent with written records. A witness who is not credible is automatically unreliable; however, a credible witness may give unreliable evidence ( see R. v. H.C. , 2009 ONCA 56 at para. 41). [ 75 ] [NAME_11] was an unreliable witness. [ 76 ] [NAME_11]’s testimony was inconsistent with established facts on relatively innocuous points. For example, he forgot when he first started working with the [NAME_15]; he testified that it was in 2008, when his letter of offer was entered as an exhibit and clearly shows that he started in 2009. To give another example, [NAME_11] was suspended without pay between September 6 and October 10, 2022, inclusively, but he did not return to work until May 1, 2023. He could not remember what he was doing between October 11, 2022, and May 1, 2023. He testified that it was something about the time being taken out of his sick leave and vacation; however, the time records submitted into evidence show that he was on leave without pay for, at the very least, between March 27 and April 30, 2023. [ 77 ] [NAME_11] was also an unreliable witness about more important points. As I mentioned earlier, [NAME_11] spent considerable time arguing about how the investigators for his suspension concluded that he was not credible. The investigators wrote as follows: … During his interview, [NAME_2] presented himself as credible. However, reviewing [NAME_2]’s interview content against his recorded work performance prior to his deployment to [NAME_19] cause the BOI members to deem [NAME_2] as not credible. During his interview, [NAME_2] was asked whether at any point in his [NAME_15] career did he conduct himself in a manner which failed to meet the Standards of Professional Conduct. [NAME_2] referenced his “younger days” when he had disagreements / arguments with colleagues, which at times led to screaming matches. As well … he disagreed with his supervisor’s management of an incident in which an inmate made racial slurs against [NAME_2] and his partner. [NAME_2] failed to share with the BOI are three previous incidents, which detail non-compliance with the Standards of Professional Conduct, Commissioner’s Directive 060 …. … Completely omitting this information from his interview lead [ sic ] the BOI members to assess [NAME_2] as not credible.… … [ 78 ] For context, I have discussed those three incidents already: one is the three-day financial penalty, and the other two are the previous discipline in 2019. [ 79 ] [NAME_11] disputes this finding of credibility. Specifically, [NAME_11] testified that he was never asked whether he conducted himself in a manner that failed to meet the standards of professional conduct. Instead, he testified that he was asked whether he had ever been accused of sexual harassment, to which he answered that he had not. [ 80 ] The investigators recorded every interview that they conducted, and those recordings were entered into evidence at adjudication. [NAME_11] invited me to listen to the recording of that interview. I did. The investigators accurately set out the question that they asked [NAME_11] and his answer. [ 81 ] I want to emphasize that my role is not to assess whether the investigators correctly assessed credibility. This was a hearing de novo , so I must base my decision on the evidence presented to me, not the evidence presented to the investigators. In addition, I disagree with the way the investigators went about assessing credibility. In that passage, they adopt a reasoning of “false in one thing, false in all” that is simply not right — as I said earlier, a decision maker can accept all, some, or none of a witness’ evidence. I also disagree with how the interviewers addressed [NAME_58]’s complaints — which is to say, they did not address them at all. [ 82 ] My point is different from whether the investigators’ assessment was correctly done. My point is that [NAME_11] testified that he was asked whether he had ever been accused of sexual harassment. In fact, he was asked something different. Memories fade over time, and I could accept that [NAME_11] simply misremembered the question, making this a relatively innocuous issue of reliability. However, he had a copy of the audio recording, and he asked me to listen to it. I am left to choose between three alternatives. First, he listened to it, heard the question put to him, and lied to me about that question, hoping that I would not listen to it and catch him. Second, he listened to it but did not listen carefully enough. Third, he did not listen to it before testifying. [ 83 ] The first option seems improbable to me because [NAME_11] asked me, several times, to listen to the recording — if he lied and hoped not to get caught, I think it is unlikely that he would have asked me to catch him. The much more likely thing is either the second or third option. Either he did not listen carefully to what was said, or he could not be bothered to refresh his memory to make sure that his testimony was accurate on a topic that he argued was crucial to his case. Either possibility makes [NAME_11] an unreliable witness. F. [NAME_11]’s evidence was inconsistent with his prior statements [ 84 ] [NAME_11]’s flat denial of every single incident in the hearing is inconsistent with what he said when he was first investigated for these incidents. [ 85 ] [NAME_11] was invited to a disciplinary hearing that ended up being held on March 31, 2022. After receiving that invitation, [NAME_11] wrote to the warden ([NAME_87]) as follows: … … I would like to first and foremost apologize to [NAME_24] from the bottom of my heart that I had no idea that I caused this type of situation without any Ill [ sic ] intentions and that without any doubt in my mind somethings [ sic ] were taken out of context. I would ask that if possible a sit down with [NAME_24] and myself along with either a union rep or staff from the office of conflict management or with a mediator be facilitated to discuss and resolve any misunderstanding.… … [ 86 ] This is inconsistent with [NAME_11]’s testimony before me. He did not testify that [NAME_82] took his comments out of context; he testified that none of them happened. [ 87 ] Second, during the investigation that led to the 25-day suspension, [NAME_11] acknowledged that he said some things that he should not have said. The investigation report says that bluntly: … it is noted that [NAME_2] either provided a different context to the allegations, provided contradictory information to what he was alleged to have said, acknowledged some things … he should not have said , and that his comments may have been an emotional response. [Emphasis added] [ 88 ] In the hearing, by contrast, [NAME_11] flatly denied saying anything that he should not have said about the events leading to his 25-day suspension or his termination. G. The complainants’ delay reporting these incidents and reluctance to pursue criminal charges against [NAME_11] does not make them less credible [ 89 ] [NAME_11] argued that the testimony of the people who made the complaints against him was not credible because they failed to complain immediately after the events set out in their complaints. He makes this argument most specifically about [NAME_82] and [NAME_83]. [ 90 ] The [NAME_15] has a form called a “Statement/Observation Report”. The witnesses called this an SOR, and I will do the same going forward. Correctional officers are expected to fill out an SOR when any incident occurs at work, whether involving an inmate or a co-worker. They are expected to fill it out immediately, by the end of their shift that day. [ 91 ] [NAME_82] complained of events that occurred between June 10 and early October 2021. She filled out an SOR about those events on October 12, 2021. The most serious of her complaints — that [NAME_11] touched her on the thigh in a sexual manner — occurred on July 18 or 19, 2021. She told her correctional manager ([NAME_88]) about this incident the following Monday or Tuesday but asked him not to formally report it and not to use her name but, instead, to speak to [NAME_11] informally. Finally, on October 12, 2021, she filled out an SOR. This was shortly after a time when [NAME_11] said that he wanted to see her and offered to bring over a bottle of wine, after which [NAME_82] said that she would punch him in the throat if he persisted hitting on her. [NAME_11] argues that her delay filing her SOR means that she is not credible. [ 92 ] [NAME_83] complained that [NAME_11] touched her on the thigh on May 20, 2023. She did not file an SOR until September 11, 2023. She explained that she did not file a complaint right away but filed one later because [NAME_84] told her shortly after August 27, 2023, that [NAME_11] had referred to her as the woman with the “big t***”, and that after hearing that, she feared that the harassment would continue. [ 93 ] [NAME_11] makes a similar argument about their credibility because of the way the RCMP dealt with the matter. In [NAME_82]’ case, the assistant warden of operations, [NAME_91], contacted the RCMP about her matter. [NAME_82] did not want to contact the RCMP herself because she was applying for a position with the RCMP and did not want that jeopardized by any investigation it was conducting. In [NAME_83]’ case, [NAME_91] asked her about contacting the RCMP when she reported [NAME_11]’s behaviour in September 2023. She did contact the RCMP but ultimately decided not to pursue charges against [NAME_11]. [ 94 ] These two individuals’ decisions to delay filing SORs, and their decision not to insist that the RCMP pursue criminal charges against [NAME_11], does not detract from their credibility in any way. [ 95 ] As the Ontario Divisional Court put it in [NAME_92] v. [NAME_93], Local 1587 , 2024 ONSC 1900 at paras. 56 to 59: [ 56 ] Moreover, the Supreme Court of Canada has, for more than 30 years, been warning judges that it is an error to rely on what is presumed to be the expected conduct or reaction of a victim of sexual assault. In particular, a victim’s reluctance to report or complain about a sexual assault cannot be used to draw an adverse inference about her credibility: R. v. W. (R.) , 1992 CanLII 56 (SCC) , [1992] 2 S.C.R. 122, at p. 136; R. v. D.D ., 2000 SCC 43 , at paras. 63 , 65; R. v. A.R.J.D . , 2018 SCC 6 , at para. 2 . [57] The conduct in this case was not a sexual assault, although courts have recognized that “harassment with a physical component constitutes a form of sexual assault and is among the most serious form of workplace misconduct”: Calgary (City) v. Canadian Union of Public Employees Local 37 , 2019 ABCA 388 , 439 D.L.R. (4th) 405, at para. 31 , and cases cited therein. [58] In Calgary (City) , the [ADDRESS] of Appeal held, at para. 42, that while the Supreme Court’s statements about reliance on these types of presumptions and stereotypes were made in the context of criminal proceedings, “the caution about these types of errors should apply equally to arbitrators adjudicating sexual assault grievances” In my view, there is no reason to limit this caution to “sexual assault grievances”, the caution about these types of presumptions and stereotypes applies to all sexual harassment grievances. [59] A victim’s reluctance to report or complain about sexual harassment may be caused by many factors: embarrassment, fear of reprisal, the prospect of further humiliation, or just the hope that, if ignored, the demeaning comments or behaviours will stop. This is true whether or not the conduct rises to the level of assault. [ 96 ] [ADDRESS] of Appeal upheld these conclusions in [NAME_92] v. [NAME_93], Local 1587 , 2025 ONCA 415 at paras. 38 and 39. [ 97 ] In this case, they both explained why they did not complain right away. Their delay complaining about [NAME_11]’s conduct in the workplace, and reluctance to pursue criminal charges against him, does not detract from their credibility. H. The inconsistencies between the testimonies of the [NAME_15]’s witnesses are not sufficiently material to undermine their credibility [ 98 ] As I have stated earlier, some of the incidents were observed by bystanders who testified. When more than one witness testified about an incident, there were some inconsistencies between their versions of events. [NAME_11] argues that these inconsistencies undermine the witnesses’ credibility. [ 99 ] Not every inconsistency between witnesses’ testimonies affects their credibility. Inconsistencies about peripheral matters, that is, matters that do not go to the heart of an issue, are not significant; see [NAME_81] , at para. 247. [ 100 ] In his submissions, [NAME_11] relied on two alleged areas of inconsistencies. He also identified a third area during his cross-examination, so I will assess that one as well. [ 101 ] The first inconsistency is about his interaction with [NAME_80]. As I mentioned earlier, the allegation was that [NAME_11] used inappropriate language during an argument with [NAME_80]. The argument took place in unit 9 of [NAME_19]. There were four correctional officers present: [NAME_11], [NAME_80], [NAME_94], and [NAME_95], all of whom testified. [ 102 ] [NAME_80] testified that the argument was over whether [NAME_11] should have been hanging out at unit 9, and she described that she thought that he was interrupting their work, including the training of other correctional officers. She called her correctional manager, who said that she could tell him to leave. She did, and he left. He came back and tried to argue with her some more. She was not interested in discussing it with him. He became angry and called her “nothing but a f****** b****.” [ 103 ] [NAME_94] and [NAME_95] were present only for the second interaction, when [NAME_11] came back to unit 9. They both confirmed that the argument occurred and that [NAME_11] said something inappropriate. However, their versions of events differed somewhat from each other. [NAME_95] testified that [NAME_11] called [NAME_80] a “b****” and that he got up, stepped between them, and directed [NAME_11] out of unit 9 as a result. [NAME_94] testified that [NAME_11] referred to [NAME_80] as a “b****” and told her to “f*** off.” He testified that he and [NAME_95] just turned in their chairs while seated and told [NAME_11] to take a walk, which he did. [ 104 ] [NAME_80] did not report this incident until it came up during the investigation into [NAME_11]’s behaviour because of other things going on in her personal life that were more important to her. The other two witnesses did not think that this was serious enough to report it immediately, but [NAME_95] eventually reported it, on September 11, 2023, after his union representative found out about the incident and asked him to report it. [ 105 ] [NAME_11] testified that he got into an argument with [NAME_80]. He testified that she was the one who swore, telling him to “go out and do your f***ing job”, after which he walked away. He denied calling her a “b****” or using any other expletive. He then spent some time testifying about why he was right, and she was wrong, about whether he should have been around unit 9 that day. [ 106 ] [NAME_11] argues that the inconsistencies between [NAME_80]’s, [NAME_95]’, and [NAME_94]’s testimony detract from their credibility. I disagree. The core of their testimonies is the same: [NAME_11] argued with [NAME_80], he used an expletive, and he got heated enough that the other two correctional officers working on the unit noticed and made him stop and leave the unit. The inconsistencies are about peripheral matters that do not go to the core of the allegation against him. [ 107 ] I note that this interaction is the mildest of all the allegations against [NAME_11] and that it would not, by itself, warrant a significant disciplinary response. However, it is relevant in connection with the other misconduct that [NAME_11] committed after May 2023 and because it occurred so soon after his return to work after the previous disciplinary suspension. [ 108 ] The second inconsistency is about the incident with [NAME_59], in which he is alleged to have told her that he would meet her in the parking lot after having an argument with her. [NAME_59] testified that [NAME_11] contacted her unit (unit 4) to ask if it needed assistance with an inmate, and she said that it did not and that he should mind his own business. [NAME_11] called back, and [NAME_59] testified that she answered the phone. [NAME_11] asked who he was speaking to, she identified herself, and they argued about whether she was rude to him. He ended by saying that they would have words later in the parking lot, which she interpreted as a threat to fight her after work. She asked other correctional officers to walk her to her car, including [NAME_60] and [NAME_56]. They did. [NAME_59] testified that she could see [NAME_11] in his car, but she drove off without incident. [ 109 ] [NAME_63] was working with [NAME_59] at unit 4 that day. She did not hear the first phone call with [NAME_11]. However, she testified that she answered the phone the second time he called; [NAME_11] said that the previous call was rude, so she put the phone on speaker, and [NAME_59] began to speak. She heard [NAME_11] say that he would meet her in the parking lot, which she also took as a threat to fight her in the parking lot. She testified that she walked [NAME_59] to her car that day but that she did not see [NAME_11]. She also could not recall what type of car [NAME_11] drove. [ 110 ] [NAME_86] testified that she did not remember any incident leading her to walk [NAME_59] out to her car. Nobody testified that she was working in unit 4 that day. [ 111 ] [NAME_11] did not testify about this incident in his examination-in-chief. In cross-examination, all he said about it was that [NAME_63] wrongly described the colour of the car that he drives and where he usually parks. [NAME_11] did not testify one way or the other about whether he told [NAME_59] that he wanted to meet her in the parking lot. He also did not testify about what colour car he drives, and he made an offhand comment while testifying about something else that he had six different cars at that time. [ 112 ] The inconsistencies between [NAME_59]’s and [NAME_63]’s testimonies are minor. Which one of them answered the phone the second time [NAME_11] called unit 4 is unimportant; they both recall that the phone was on speaker and that [NAME_11] said that he wanted to meet [NAME_59] in the parking lot, which they interpreted as a threat. They both testified that [NAME_59] was walked to her car by a group. That [NAME_86] does not remember this specific incident also does not mean that it did not happen; it just means that she does not remember, one way or the other. Finally, [NAME_11] never testified that this incident did not happen, so I am left with his blanket bald denial that anything improper happened in this case. These minor inconsistencies between their testimonies do not mean that they are not credible about the important point. [ 113 ] The third inconsistency is about the incident in which [NAME_11] cat-called [NAME_82]. [ 114 ] [NAME_82] testified that he called out to her, “damn girl, you look fine.” She testified that [NAME_11] was leaving unit 9 and that she was coming in on her shift and that she could hear him calling from the living units while she was on the pathway. [ 115 ] [NAME_96] testified that she also heard [NAME_11] cat-calling [NAME_82]. She did not recall exactly what [NAME_11] said but testified that it was words to the effect of “hey girl”, with a sexualized tone, and that he referred to her as “Toronto girl”. She testified that [NAME_11] was about 50 feet from [NAME_82] at the time and that he was in the middle of the courtyard. [ 116 ] [NAME_11] denies that this incident took place; however, he did testify that he used the phrase “hey girl” when speaking with [NAME_82] at other times and that he knew that she was from Toronto, Ontario. He also testified that [NAME_96] could not have heard him make that comment based on her description of where it occurred. He did not elaborate on why that would be the case. [ 117 ] As with the other alleged inconsistencies, these inconsistencies are minor and do not go to the heart of the allegation. That [NAME_96] does not remember exactly what [NAME_11] said is not critical; his tone and the tenor of his remarks are most relevant to this grievance. Her recollection is similar to that of [NAME_82] about what he said and identical about its tone and content. Similarly, whether he was in the courtyard or just outside unit 9 is not a critical detail; both [NAME_82] and [NAME_96] testified that he was some distance away from them and that they both heard his comment. [ 118 ] In all these cases, these inconsistencies are different from the inconsistency in [NAME_11]’s prior statement in which he acknowledged making comments to [NAME_82] but apologized for them and said that they were taken out of context; that goes to the heart of his testimony in the hearing, in which he denied making any comments to [NAME_82] that could be perceived as inappropriate. I. [NAME_11]’s argument that [NAME_83] was not working on the day of their interaction [ 119 ] [NAME_11] argues that the employer has not substantiated its allegation that he touched [NAME_83] on her thigh because it did not prove that she was working on the post on the day their interaction is alleged to have occurred. [ 120 ] [NAME_83] testified that [NAME_11] touched her on the thigh on May 20, 2023, when she was working in the visitor security centre. She told [NAME_11] that this was inappropriate. [NAME_11] responded with words to the effect of, “I didn’t know you wouldn’t like it.” She told him to leave, and he did. She testified that she was relieving [NAME_11], who was working there. She also testified that she was not supposed to be working there but that she agreed to exchange locations with another correctional officer because that officer preferred working in unit 3, where she was scheduled to work that day. [ 121 ] [NAME_11] argued that the formal schedule documents for [NAME_19] do not show [NAME_83] working at the visitor security centre on May 20, 2023. However, she explained why that is the case, namely, because she swapped locations with another correctional officer. In addition, the warden, [NAME_87], also testified about this issue and said that correctional officers should, but do not always, record exchanges of work locations. He also remembered the correctional officer that she exchanged locations with and recalled that this officer preferred to work in unit 3, making it likely that he wanted to trade places with someone working in unit 3. [ 122 ] I agree with [NAME_11] that the documents available do not state that [NAME_83] was working at the visitor security centre on May 20, 2023. However, her explanation for that discrepancy is logical and was corroborated by [NAME_87]. [ 123 ] By contrast, [NAME_11] did not testify that [NAME_83] was not working in the visitor security centre that day. Instead, he testified that the area was small and that he might have touched her on the shoulder (but not the thigh). [ 124 ] He also testified that if [NAME_83] had spoken to him and had asked him to leave the area that day, he would have completed an SOR because he was on heightened alert against any new allegations against him. However, he admitted having an argument with [NAME_80]; he also told the investigators that he swore during that argument. However, he did not complete an SOR for that incident. His claim that he was on heightened alert and that he would have completed an SOR is inconsistent with his evidence about his interaction with [NAME_80]. [ 125 ] He testified that he did not converse with female staff after his return from his first suspension. However, he admitted to conversing with [NAME_80]; he just disputed the content of that conversation. He also contradicted himself by testifying that he continued to work with female officers after his suspension and that he did not have issues with them. [ 126 ] I am satisfied that [NAME_83] was working at the visitor security centre on May 20, 2023. I also prefer her testimony over [NAME_11]’s, for the reasons described earlier. J. Demeanour of witnesses [ 127 ] The demeanour of witnesses is not a factor that I gave very much weight to in this case. However, [NAME_82], [NAME_80], [NAME_58], and [NAME_83] were angry with [NAME_11] both in their demeanour and in the way that they answered his questions on cross-examination. [NAME_82] even tried to ask [NAME_11] to apologize to her during her cross-examination. Their anger was consistent with [NAME_11] having done the things they accused him of. As I just said, I gave this very little weight; the best way to describe this is to say that their demeanour did not undermine their credibility. K. Conclusion on findings about allegations [ 128 ] I have concluded that the [NAME_15] has proven the allegations against [NAME_11] on the balance of probabilities. In short, I believe the employer’s witnesses. [NAME_11] has led no evidence to substantiate his theory that [NAME_59] orchestrated the complaints in 2021 and again in 2023 and that all 13 witnesses for the employer in this hearing testified against him out of fear of her. L. Conclusion about the level of discipline [ 129 ] In respect of the level of discipline (i.e., a 25-day suspension for the first series of incidents, and then termination for the second), I have concluded that both levels of discipline were appropriate in the circumstances. [ 130 ] [NAME_11] did not make any submissions about why the level of discipline was inappropriate or should be reduced. His submissions were all or nothing; namely, there should have been no discipline at all. [ 131 ] I have relied heavily on the Board’s recent decision in [NAME_81] about the appropriateness of discipline in this case. The Board identified seven factors in [NAME_81] that are also relevant in this case. [ 132 ] First, “… sexual harassment can take many forms, and the appropriate penalty can vary depending on the circumstances” ( [NAME_81] , at para. 330). Specifically, sexual touching has often justified termination. This is a serious aggravating factor in this case because the nature of [NAME_11]’s conduct was at the extreme end of the spectrum of sexual harassment. [ 133 ] Second, remedial responses require the prospect of rehabilitative potential ( [NAME_81] , at para. 331), and even sexual harassment at the lower end of the spectrum leads to lower disciplinary consequences only if [NAME_11] demonstrates an understanding that what they did was wrong and expresses genuine regret (paragraph 338). [NAME_11] flatly denied all wrongdoing, he did not express regret. In addition, [NAME_11] testified that he thought that the employer failed to create a safe work environment for him after his 25-day suspension. He also testified that he was upset because [NAME_87] cared about other staff more than he cared about him. [NAME_11]’s testimony showed a spectacular degree of self-absorption and no regret. [ 134 ] Third, a lengthy period of service can mitigate against a higher penalty, and in [NAME_81] , an 18-year period of service was seen as significant and an important mitigating factor. [NAME_11]’s roughly 14 years of service are also a mitigating factor in this case. [ 135 ] Fourth, the overall duration of the disciplinary process can be a mitigating factor ( [NAME_81] , at para. 341). For the 25-day suspension, [NAME_87] testified that he was initially going to terminate [NAME_11]’s employment but was talked out of that by labour relations advisors because of the length of the investigation into those allegations. Considering that testimony, I will accept that in this case, the overall duration of the investigation process can be a mitigating factor but that it was already applied, so that events that could have justified a termination of employment led to a 25-day suspension instead. [ 136 ] Fifth, special economic hardship can be a mitigating factor if the economic hardship goes “… beyond what would normally result from the loss of employment” ([NAME_81], at para. 346). [NAME_11] testified that he has had to move residences. However, he also testified that this was in part because of a debt that he had gotten himself into with a business venture unrelated to his employment. He testified that he had no coverage for counselling but then immediately said that his wife is employed and that her health coverage pays for half the family’s medical expenses. [NAME_11] led no evidence of special economic hardship caused by the termination of his employment outside the loss of income that normally results from a loss of employment. [ 137 ] Sixth, [NAME_11] “… occupied a position for which incumbents are expected to demonstrate and maintain a higher standard of behaviour” ( [NAME_81] , at para. 349). In this case, [NAME_11] was occupying a managerial position at the time of some of the first wave of sexual harassment, and managers are held to a higher standard than other employees when it comes to their conduct (see [NAME_97] v. Deputy Head (Department of the Environment) , 2024 FPSLREB 18 at para. 477). [ 138 ] This is particularly acute in this case because of the power imbalance between [NAME_11] and his victims, especially in the first wave of sexual harassment. [NAME_11] was a relatively long-service correctional officer who was promoted almost immediately after transferring to [NAME_19]. He sexually harassed [NAME_82], who started training as a correctional officer in 2018 and began working at [NAME_20] on January 22, 2019. [NAME_82] also testified that she is biracial, which led her to initially find that in common with [NAME_11], who is also a member of a racialized community. [NAME_11] took advantage of her youth, inexperience, and membership in an equity seeking group. [ 139 ] [NAME_11] also sexually harassed [NAME_58], who started as a correctional officer on December 11, 2019. She was 22 years of age when [NAME_11] began sexually harassing her. [NAME_11] also took advantage of her youth and inexperience. [ 140 ] Additionally, “[c]orrectional officers are held to a higher standard of conduct than are those in other occupations” (see [NAME_98] v. Deputy Head ([NAME_6]) , 2021 FPSLREB 138 at para. 131). [NAME_11]’s position is an aggravating factor. [ 141 ] Seventh, the impact on complainants can be an aggravating factor ( [NAME_81] , at para. 358). [NAME_82] testified that she stopped working at [NAME_19] on November 30, 2021, and went on workers’ compensation. She never returned to work as a correctional officer. [NAME_83] also testified about the impact of [NAME_11]’s actions on her; she was off work for nine months because of a mental health illness caused by that event, and she continues to suffer from that mental health illness. These serious and long-standing consequences are a significant aggravating factor in this case. [ 142 ] Overall, the aggravating factors well outweigh the mitigating factors in this case. I have no reason to believe that [NAME_11] would be unlikely to reoffend if he were returned to the workplace. He was given a chance after his initial 25-day suspension, and he acted inappropriately again almost immediately. In fact, he even bragged to [NAME_85] that he hoped that someone else would complain about sexual harassment, so that he could get another “paid vacation” like his paid suspension during the investigation into the first series of sexual harassment allegations. [NAME_11] denied saying that and testified that his paid suspension was bad because he lost overtime opportunities, and his reputation was tarnished. I have already explained why I prefer the evidence of every other witness over that of [NAME_11]. On this point in particular, [NAME_11]’s claim about how upset he was at not being allowed to work is inconsistent with his decision not to return to work after serving his suspension and, instead, wait another nine months before returning to work. [ 143 ] For these reasons, the grievances against the 25-day suspension and [NAME_11]’s termination of employment are denied. [ 144 ] Finally, [NAME_11] also grieves the unpaid suspension that he received pending the investigation that led to his termination. However, that grievance is moot because the termination was effective retroactively to the first day of the suspension; see [NAME_99] v. Deputy Head (Canada Border Services Agency) , 2024 FPSLREB 116 at para. 300.

VII. Request for a sealing order [ 145 ] Exhibit E-9 to this adjudication is a bundle of documents setting out which correctional officers were on shift, where, and at what time on certain dates, including May 20, 2023. It also sets out the counts of inmates in several units at the time and equipment checklists. [ 146 ] The [NAME_15] has requested that the exhibit be sealed because it poses a serious risk to public safety. Specifically, the documents set out how the [NAME_19] is protected, by whom, when, by how many, and using what equipment. The [NAME_15] finally points out that there are few negative effects of such a sealing order because any impact on the open court principle would be minimal. The employer relies on Sherman Estate v. [NAME_100] , 2021 SCC 25, on this point. [NAME_11] asked that the employer’s request be closely scrutinized and stated that information used during the hearing should be available in the future as well. [ 147 ] I agree with the [NAME_15] that there should be a sealing order in this case for that exhibit. I agree that its release could compromise the safety of the institution and that its release would not meaningfully jeopardize the open court principle. As discussed earlier, the information in it that is relevant to this case is wrong anyway, and I ended up relying on the testimonies of witnesses instead of that document. The rest of that document, which shows every other correctional officer’s schedule and equipment use, has no bearing on this case and was not discussed by any witness. Therefore, a sealing order would result in a very minimal impact on the open court principle. Finally, as for [NAME_11]’s concern that the information in this proceeding should be available for use in the future, I am not sure what he is referring to. If he is referring to the possibility of a judicial review application of this decision, the exhibit will still form part of the certified tribunal record, and the Federal Court of Appeal will have to decide whether it should be sealed in that proceeding as well. [ 148 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

VIII. Order [ 149 ] The grievances are denied. [ 150 ] Exhibit E-9 is ordered sealed. February 16, 2026. [NAME_8], a panel of the [NAME_1] and Employment Board