An Ontario police officer who took an inappropriate picture of a cookie and his genitalia at a Christmas party has been awarded his job back.
Kevin Gruchy was hired by the Ontario Provincial Police (OPP) on Feb. 12, 2006, as a fixed-term special constable performing the work of an offender transportation officer in the Midland-Penetang Offender Transportation Unit. He became a full-time, permanent officer in June 2006.
He had no record of misconduct in the first 11 years on the job. That all changed on Dec. 8, 2015.
That day, his unit had a potluck Christmas party. Gruchy did not attend as it had ended by the time he returned after completing his work.
Upon returning, he thought it would be funny to take a cookie off the tray of leftovers, go to the washroom and take a photo on his phone of the cookie perched on top of his penis.
Later that afternoon, he texted the photographs to two fellow officers he considered friends saying “Merry Xmas.”
One responded with: “You are a sick fucker.” Gruchy replied: “I put it back on the plate when I was done.”
He didn’t actually do that – instead, he kept it with him in the console of his truck for some time. He was at the end of his shift, but on duty at work, when he took the photo and distributed it.
Disgusting and disturbing
One of the officers who was sent the photo shared it with some colleagues. One officer (identified as Witness A) heard about the photo and asked for a copy of it since he had eaten some cookies and taken some home and given them to his daughter.
Witness A was disturbed and disgusted by the photo, and reported it to senior management.
“He was so troubled by the thought of possibly eating the cookie himself that he did not sleep for three or four nights,” the ruling said.
He was suspended with pay on Jan. 12, 2016.
An investigation was begun that resulted in Gruchy’s termination.
At the hearing, Gruchy acknowledged the utter stupidity of taking and distributing the photo.
There were some 16 additional incidents discussed at the hearing (too many to go in detail here) including the use of the N-word. Gruchy admitted he had used it, but never in an angry or malicious way.
“He said he might have used it on an occasion when repeating what inmates had said, when they came out of the Central North Correction Centre, and he searched them,” the court documents stated.
He admitted is was completely unacceptable to say and would not use it again.
The termination
Gruchy was found by the OPP to have engaged in conduct that variously constituted harassment, sexual harassment and creating a poisoned work environment.
But there was also some fingers pointed at management by the investigator.
“The investigator notes the following concerns regarding the style/approach and possible failure of management to intervene. The investigator felt it necessary to comment on these observations as there appears to be a direct failure on the part of management to intervene and address known issues,” the arbitrator wrote.
“These issues appear to be systemic and left unchecked for several years. Management has a responsibility to address potential issues within the workplace and take action to resolve and restore the workplace to a healthy work environment.”
Despite these concerns, the OPP didn’t conduct a broader analysis of the workplace culture and it couldn’t explain why it decided to only investigate Gruchy.
The apology
Gruchy took his misconduct seriously. At a pre-disciplinary meeting, he attempted to read an apology but became too emotional to continue. His apology read in part:
I am very sorry for the things that I have said and done that were inappropriate and offensive.
I understand that I did not uphold the OPP promise or my Special Constable designation.
I accept full responsibility for my inappropriate behaviour and comments. It was never my intention to hurt or offend anyone as I am not a hateful person. I have said and done things in bad taste and bad humour which has [sic] unfortunately has had a negative effect on my co-workers, friends and family.
I have had time to reflect on my actions. I realize that although, no harm was intended by my behaviour, I have harmed many people by my actions. I have not only embarrassed myself, but also the OPP organization, my coworkers, and my family. I have spent a great deal of time preparing myself to return to the workplace with a positive attitude and my goal is to develop positive relationships and a positive working environment. I will assist in any way possible to create a healthy, positive workplace that is free from discrimination and harassment. […]
I am sorry for my behaviour that has caused grief for the organization, members of the OTU and my family. I am truly sorry for my actions and for the embarrassment to the OPP, members of the unit and my family.
On Nov. 8, 2016, Gruchy was terminated.
The union’s position
The union seized on what was essentially a toxic culture – poisoned by inappropriate behaviour on a significant scale and his misconduct must be seen as a feature of that dysfunctional culture.
The ruling
The arbitrator said that a toxic environment that tolerates bad behaviour does not justify wrongdoing.
“Though it explains why an individual might feel empowered to act badly and to do offensive things, as (Gruchy) did. It does not justify his misconduct, but the weight of evidence shows that he was able, with his colleagues, to treat others disrespectfully for a long period of time. It became their habit and their way of communicating with each other. That does not excuse his misconduct, but it does mitigate it,” the arbitrator said.
His 11 years of service, which included no discipline before termination, also weighed in his favour.
His recent performance appraisal was positive, and said he worked co-operatively and collaboratively and was respectful and professional.
Gruchy understood how inappropriately and offensively he behaved and what harm he did, the arbitrator said. His chances for rehabilitation and complying with the requirements of a respectful workplace were high.
Therefore, the arbitrator put aside the termination and reinstated him without compensation but without loss of seniority.
For more information, see Ontario Provincial Police v. Ontario Provincial Police Association, 2022 CanLII 50619 (ON LA).
