Home Arbitration/Labour Relations Correctional Services of Canada’s firing of guard with history of tardiness, DUI charges upheld

Correctional Services of Canada’s firing of guard with history of tardiness, DUI charges upheld

by HR Law Canada

The Federal Court of Appeal has rejected a former prison guard’s bid to overturn a decision by the Federal Public Sector Labour Relations and Employment Board regarding his termination from the Correctional Service of Canada.

In a ruling, Justice Locke stated that the court found “no merit” in SM’s arguments challenging the validity of the Board’s decision to dismiss his grievance. SM had been let go from his job with the Correctional Service of Canada and had sought judicial review of the decision.


SM was employed as a correctional officer (CX-1) at Springhill Institution, a medium-security federal corrections facility, since 2005. His duties included maintaining security and control of roughly 400 inmates and serving as a role model for appropriate behavior.

He faced multiple disciplinary actions over the years for various infractions including tardiness, absence without leave, and leaving his post without authorization. Despite warnings and suspensions, his behavior persisted. Furthermore, he was charged with driving under the influence on three occasions.

In late 2016, SM was also charged with sexual assault against a minor, his 11-year old daughter.

He denied the charge, and argued the mother of his daughter had made up — or encouraged — the allegation as a way to deny him visitation rights.

An internal investigation could not conclusively establish his guilt or innocence, but determined that the charges against him had a negative impact on the employer’s reputation.

Based on a culmination of these issues, he was terminated from his position on May 19, 2017, effective from Feb. 10, 2017. The employer concluded he had failed to adhere to workplace policies and standards.

The original ruling

The Board said that, given his disciplinary history, and the fact the employer had “already held a disciplinary hearing with respect to his most recent failures to report to work on time and fit for duty,” it was satisfied there was just cause.

“The disciplinary measure was not excessive. I am also satisfied that it would have made the same decision — and with the same justification — even had the Criminal Code charges that arose after the disciplinary hearing not occurred,” the Board said. “The employer’s reference to them was an unnecessary gilding of the lily.”

SM appealed that ruling to the Federal Court

The appeal

SM agreed that the legal standards applied by the Board in reviewing his case were appropriate. He also acknowledged that the court could only intervene if it found the Board’s decision “unreasonable,” a standard set by previous Canadian legal precedent. Despite this, SM argued that the Board erred in three significant ways:

  1. The Board incorrectly determined that his employer had sufficient grounds for termination.
  2. The Board deemed that the criminal charges against him were not a factor in his dismissal but were “unnecessary gilding of the lily.”
  3. The Board concluded that the discipline meted out to him, namely termination, was not excessive.

Justice Locke, after considering SM’s written and oral submissions, ruled that there was nothing “unreasonable” about the Board’s decision. SM had argued that the Board did not sufficiently consider mitigating factors, such as his years of unblemished service and medical issues leading to misconduct.

The court found that the Board had indeed considered his years of service and that evidence of his efforts to address medical issues was not convincing enough to sway the decision.

SM also claimed that his suspension and eventual termination were tied to his employer discovering pending criminal charges against him, asserting that this was an unreasonable basis for concluding that the employment relationship was irreparably damaged. The court disagreed, stating that the Board “reasonably concluded that his behaviour at work was sufficient on its own to break the employment relationship.”

In its final remarks, the court cited legal precedent to back the Board’s reasonable application of the assumption that “if the employee has not corrected his or her behaviour after progressively severe discipline, then it is assumed that termination is the only recourse.”

The Federal Court of Appeal thus dismissed SM’s application for judicial review and ordered him to pay costs in the all-inclusive amount of $1,000.

For more information, see Mackey v. Canada (Attorney General), 2023 FCA 213 (CanLII)

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