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HomeMy WebLinkAbout1987-1291.Neckles.89-09-06 y-,e- i' ONTARIO EMPL OYES DE LA COURONNE ri CR0WNEUPL0YEES DEL'ONTARIO a GRIEVANCE C4MMISSI0N DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO. ONTARIO. M5G IZ8-SUITE 2100 TELEPHONE/T1=L&H0NE 780,RUE DUNDAS QUEST, TORONTO, {ONTARIO)M50 1Z8-BUREAU 2100 {4T 598/8 7 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Neckles) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: J.E. Emrich vice-Chairperson J. Solberg Member H. Roberts Member For the Grievor: R. Ross Wells Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Em to er: E. Maksimowski L. Brossard Counsel Legal Services Branch Ministry of Community & Social Services Hearings: October 20 , 1987 February 4 , 5 , 1986 March 10 , 1988 April 14 , 15, 16 , 1988 May 16 , 1988 June 6 , 10 , 30, 1988 t _1 7 At the time of his dismissal on dune 8, 1987, the grievor was classified as a Correctional officer II at the York Observation and Detention (York 00) Hone in Ibronto. This is a provincial facility designated under the Young Offenders Act for the secure detention and custody of children charged with offences. Children reside in the facility while they await bail hearings or disposition of the charges against them in court. On or about December 2, 1986, the grievor was suspended during an investigation and subsequently was discharged on June 8, 1987 for reasons set forth in his letter of dismissal: Dear Mr. Neckles: I have now had the opportunity to fully review the allegations made against you, which were discussed at a meeting with you and your Union representative on May 5th, 1987. The allegations made against you are that during the course of your employment as a Correctional Officer II at the York Detention Home, a facility designated under the Young Offenders Act, the i following incidents occurred: 1) that on or about February the 18th, 1985, while supervising the resident C.B., you engaged in inappropriate sexual activity and had sexual intercourse with her, while she was in segregation at the York Detentions Home; 2) that on or about the month of February 1985, you acted inappropriately by giving your home telephone number and address to resident C.B. and asking her to contact you; 3) that in the Fall of 1985 at your hone, you enraged in inappropriate sexual activity with former resident C.B.; 4) that in the Sumner of 1986 you acted inappropriately by giving resident D.C. your home telephone number and asking her to contact you; 5) that on several occasions in 1986 you made unauthorized telephone contact with former resident D.C. and on at least two of these occasions you requested that she come to your hone; 2 i _ _ 1 y 1 a 6) that on or about September the 9th, 1986, and again on or about September the 12th, 1986, you had sexual intercourse with former resident D.C. at your hone; 7) that you failed to observe the policy of the Detention Home Manual on "Staff Values, Behaviour and Conduct" relating to the procedure for contact with former residents. The information which I have indicates that you have demonstrated numerous instances of inappropriate behaviour and poor judgement in your dealings with female residents of the Forme, both in the Home and after their discharge, as exemplified by the allegations of sexual misconduct and contact with former residents. In November 1986 the Programme Manager provided you with a letter regarding unauthorized contact with former resident D.C. 1 After reviewing and considering all of the information before me, I am satisfied that the allegations made against you are substantiated. You are in breach of the Ministry's Standards of Conduct and Disciplinary Guidelines, paragraphs 6 and 10, in that you have failed to comply with paragraph 6 "Policy, Statutes and Regulatory Requirements" and that you have failed to comply with the requirements in paragraph 10 in relation to harassment, abuse and inappropriate assault and sexual harassment of Ministry clients. I have concluded that in view of the serious nature of this matter, I have no -alternative but to dismiss you from your employment as a Correctional. officer II at the York Detention Home, effective June 8th, 1987. Yours truly, Marilyn Renwick Superintendent cc. Terry Moore, Union Rep. 3 ,J J i The relevant portions of paragraphs 6 and 10 of the Ministry's Standards of Conduct and Disciplinary Guidelines are as follows: Standard: b. Doimplfance with policies, statutes, and regulatory requirements (employees must be informed of their obligations) Unacceptable Conduct such as - Violation of policies, statutory and regulatory requirements; work related fraud; dishonesty; deception; falsification of records, reports, documents, etc. . I Disciplinary Guidelines: First Infraction - Up to three days' suspension Second Infraction - Up to five days' suspension or dismissal Standard: lg. Orderly Conduct Unacceptable Conduct such as - Endangering wellbeing of any persons on Ministry premises; use of force in excess of approved methods resulting in injury or abuse+ to trainee, resident, or ward; assault or sexual harassment.of or involvement with employees, clients, or visitors. + Definition of Abase The unwarranted and/or inappropriate use of physical force, psychological stress or sexual involvement, or any unwarranted, inappropriate act of omission, (including action which leaves no physical scars, but results in emotional damage) by staff interacting with residents, wards, and trainees. Disciplinary Guideli nes: First Infraction - Written reprimand and up to one month's suspension or dismissal dependent on seriousness of offence. Second Infraction - Dismissal. 4 Dealing with the first allegation, the grievor denies any impropriety in his conduct, while supervising resident C.S. in segregation on Sunday, February 10, 1985. From the evidence of the log books kept for the Boys' Unit and 00-Ed e Unit,, and from the testimony of Lorie Grant, David Fraser, Mike O'Reilly i and the grievor, the Board finds that the following sequence of events occurred up to the point in time when C.B. was placed in segregation: At s some time between 4:00 p.m, and 4:20 p.m., one of the correctional officers on duty, Ms. Lurie Grant, escorted resident C.B. out of the church service into the staff office nearby because of C.B.'s disruptive conduct. C.B. continued a verbal harangue which was overheard by the shift leader, Mr. Fraser, who was in an office adjacent to the staff office. When C.B. kept up her tirade of verbal abuse, Mr. Fraser joined Ms. Grant. He decided that C.B. should be confined to her room in the Lipper Co-Ed unit. As the three were leaving the staff office, C.B. turned, looked back at Ms. Grant, and swung her arm around to backhand Nis. Grant in the face with her closed - fist. Ms. Grant reeled backwards and struck the back of her head against ! the back window of the office. Ms. Grant stated that she was dazed by the blow, suffered a cut lip and a permanent injury to the root of one of her front teeth. Mr. Fraser tackled C.B. to restrain her and summoned the grievor to help him with the restraint. C.B. recalled that during the church service she purposely raised the issue of an abortion undergone by another resident, with whom she had an ongoing quarrel. She described herself as having persisted with the issue despite attempts by the chaplain to deflect the confrontation because "I wanted to get at her - right?" . She realized that she was disrupting the 5 church service and for this reason she was escorted from the service to a locked room with a two-way mirror. She was positive she was being watched through this mirror. She recalled that she was "jumped" by staff at some point, but could not remember why. She had no recollection of hitting Ms. Grant or why she was restrained by staff. It was her impression that many of the staff at York Q&D Centre didn't like her. She could not recollect exactly which parts of the building she was taken through that evening, but recalled that she was taken to an observation room with a two-way mirror first, then to a cell. Given the vagueness and gaps in C.B.'s recollection, the fact that she was angry, and that Mr. Fraser and Ms. Grant had clear, detailed recall of events, the Board prefers their evidence to that of`C.B. concerning events leading up to the point in time when C.B. was put in her room in the Upper Co-Fd Unit at approximately 4:30 p.m. Mr. Fraser stated that he and Mr. Neckles escorted C.B. up to this room. He assigned Mr. Neckles to supervise C.B. in isolation for the evening. C.B. was placed in the room and the door was locked. The Board took a view of the premises, and finds that the employer's witnesses described the room accurately as long and narrow, with concrete-block walls, a window, a bed on the floor, and a steel door at its entrance with a window. There is no two-way mirror, and the Board finds that C.B. must have been referring to the staff office on the main floor, where there is a window on one side. The York Observation and Detention Centre is located on the east side of George Street which runs north and south. The building is bisected by stairwells and offices for staff. On the first floor, the north half houses the day lounge/programme area, the south half houses the Lower Co-Ed 6 i Unit. Upstairs, above the programme area, is the Boys' Unit; the Upper Co- Ed unit, located above the lower Co--W Unit. Stairwells are located in the middle and at both ends of the building, to connect upper levels with lower levels. The cafeteria is located in the basement, along with classrooms and activity areas. Before leaving Mr. Neckles alone to supervise C.B., Mr . Fraser left open the office doors between the Upper Co-Ed Unit and the Boys' Unit. Mr. Fraser testified that he had reservations about leaving a male staff alone to supervise a female resident in segregation, but since he was short-staffed, he decided he had no other option. In order to facilitate Mr. Neckles' contact with other staff in the adjacent Boys' Unit, Mr. Fraser decided to leave the doors open. These doors would ordinarily be closed and locked to maintain security. Indeed, Mr. Lawrence Dawkins, another correctional officer who was on duty that night, mentioned that there are intercoms and walkie-talkies issued to staff to assist communication. However, these means of communication were not raised with Mr. Fraser or the other staff witnesses, nor was it made clear that all staff had functioning walkie-talkies on their person in February, 1985, M The log establishes that C.B. was confined to her room in the Upper Co- El Unit from approximately 4:30 p.m. until 9:00 p.m. when Ms. Fortier arrived to relieve Mr. Neckles and take C.B. to the showers. Following her shower, around 9:30 or 10:00 p.m., C.B. was escorted down to the first floor quiet room off the programme area. Mr . Dawkins, who was supervising boys in that area, observed C.B. to be "extremely out of control - yelling obscenities -- out of control - she was exposing herself - saying 'fuck off - suck my left tit'". He added, "She continued to be verbally abusive to myself and Mr. Neckles until she was put in the quiet roam". He said that 7 A J in 5-1/2 years of working at the facility, C.B. was the only girl who exposed herself like this. In the result, C.B. was confined to the quiet roam for the night. %bus, the time critical to the first allegation is fram approximately 4;30 p.m. to 9:00 p.m. when Mr. Neckles was relieved by Ms. Fortier. The versions of C.B. and of the grievor as to what transpired during this time frame are completely divergent. C.B. maintains that the grievor came to her room, introduced himself and began to chat in a reassuring manner saying that, "He was there to help black kids" . He went to get same more magazines when she said she didn't like the ones she had in the roan. She said some time passed as they were talking, then the grievor left to pick up her dinner tray. When he returned with her tray, he sat with her as she ate her dinner. She mentioned that he brought an extra dessert - vanilla ice cream - and offered it to her. She declined the extra dessert, so the grievor ate it. C.B. said she felt confident and comfortable with the grievor, so she asked him for a cigarette, although she knew he didn't smoke and that cigarettes are contraband. He replied that since he didn't smoke he would have to risk getting a cigarette from someone's purse. C.S. said the grievor asked, "What do I get if I get a cigarette?" , to which she replied, "Go and get it and came back and we'll see" . C.B. said he left and returned with a cigarette. She smoked it and gave him the butt, which he asked for, rather than flushing it down the toilet. She said the grievor then asked, "What am I going to get?" . She said that she thought that he just wanted to touch hero but she Gould tell he wanted to have sex. C.B. proceeded to describe in graphic detail an act of sexual intercourse between then. Afterwards, C.B. said the grievor said, "Don' t tell anyone" , to which 8 J i � e she said, "I know, I'm not dumb!" . Then she and the grievor chatted some more and the grievor gave her his phone number and address. She proceeded to write it down in code on a piece of paper with his pen. C.B. said she knew where the grievor lived because she had lived in that neighbourhood when she first came to Canada. She explained that the grievor had described some of the landmarks such as a shop, restaurant, and garage nearby, so she could locate it. She stated that the grievor made it clear that if she ever wanted to talk to someone, she could phone him. She added,. "He was very nice in that way - if I had problems, I could talk to him: I guess". In contrast to the wealth of detail that C.S. seemed able to relate about the time she spent in segregation under the grievor's supervision, the grievor could recollect very little of the evening's events. He was certain that he stayed outside of C.B.'s room, that he would have made periodic checks on her through the window in her room door . Otherwise, he remained in the staff office or the hallway adjacent to C.B.'s roan. He maintained that nothing unusual transpired during the supervision. He was unable to recall any detail, of what occurred ; ie..when or how he and C.B. obtained dinner, which staff came by to bring dinner, whether any other staff came by to visit, whether any of the staff on duty that night were smokers, or whether he talked to Wrie Grant that evening. However, he denied having any conversation with C.B. throughout the supervision and vehemently denied having sexual intercourse with C.B. In response to questioning concerning the employer's policy pertaining to contracts between staff and residents, the grievor maintained that staff were encouraged to assume a parenting role and were encouraged to be close to the residents and 9 1 . provide reassurance. The grievor described C.B. as a wicked, malicious, . 1 abusive child who hated authority and whose testimony was a web of lies. The Board has found it a difficult task to ascertain what occurred during the grievor's supervision of' C.B. during the evening of Sunday, February 10, 1985. However, upon careful consideration of the evidence, the Board is compelled to conclude that C.B.'s version of events cannot be given credence in its entirety. Firstly, smoking is taken very seriously by all 'staff at York Observation & Detention Centre, because of the fire hazard it presents. Cigarettes are considered contraband and residents are searched routinely after opportunities to obtain cigarettes have occurred or when there is a rumour of contraband. All the staff on 2 shift on February loth were non-smokers except Lorie Grant. She had been shaken by C.B.'s assault and, after she had cleaned herself up in the washroom, she went to the staff office to place a telephone call to her husband. She remained in the staff office for about 10 to 15 minutes and smoked cigarettes. About 4:50 p.m., she went to the cafeteria to help out with the Co--Ed Unit's dinner, which lasts from 4:30 to 5:00 p.m,. At 5:00 p.m., she returned to the staff office and smoked many cigarettes in an effort to recover her composure for the balance of her shift. Another staff, Mr. Mike O'Reilly, who was a close personal friend of Nis. Grant, recalled speaking with Lorie Grant in the staff office briefly, then he went up to the Upper Go-Ed Unit to see if he could catch a glimpse of C.B. . He explained that he was supposed to be in the cafeteria from 5:00 - 5:30 p.m. to supervise the Boys' Unit dinner. He saw Mr. Neckles sitting in the unit office and spoke with him briefly. Then Mr. O'Reilly went to peer at C.B. through the door window, but he was unable to get a good look. He described her as sitting 10 in a corner , wrapped in a blanket. Mr . O'Reilly left, but ventured up again during quiet time from 5:50 to 6:30 p.m. . This time he was able to see C.B. through her room window. The grievor was in his office, but came out to the hall to speak to Mr. O'Reilly. Furthermore, although he had no present recollection of Having done so, Mr. Fraser said that he would have gone up on rounds at least once, if not twice, during C.B.'s supervision to check on things, particularly as he had misgivings about having to assign a male staff to supervise a female resident in segregation. Mr. O'Reilly said that as a nonsmoker and staff trained to observe such signs, he would have detected cigarette smoke in the area if there had been smoking in C.B.'s room. He mentioned that ventilation in the facility is notoriously poor, so the smell of cigarette smoke would tend to linger. Lurie Grant described the grievor as being very anti-smoking. The grievor confirmed this attitude in his evidence. Taken as a whole, this evidence, with evidence given about the stringency of employer policies and practice i concerning where staff must store cigarettes and the protocol respecting contraband cigarettes, the Board concludes that it is not plausible that the grievor would have obtained a cigarette for C.B.. There would have been little opportunity to do so, in the time frame suggested by C.B. -- just after her dinner - which would have been between 5:00 and 6:00 p.m. on her scenario. The grievor would have had to leave his post, travel downstairs to the staff office to steal a cigarette from Ms. Grant's purse, and return. Yet, at the time, Ms. Grant was away from her purse only from 4:50 to 5:00 p.m. She noticed no cigarettes missing and smoked a great deal that evening. Furthermore, it is apparent that on the occasions that Mr. O'Reilly observed the grievor during the supervision, the grievor was ll a following the usual routine - sitting in the office, milking periodic checks. Finally, the evidence indicates that Mr. Fraser would have made periodic checks on the grievor that evening and nothing unusual was recalled. On C.B.'s version, at the times when Mr. O'Reilly came up to visit, the grievor and she were engaged in pleasant conversation or intercourse in her roam. On the whole, the allegation of sexual misconduct of the grievor with C.B. is not plausible. The conduct of C.B. during the church service which was designed to spite and embarrass another resident with whom she had an ongoing conflict, the deliberate and vicious assault of Ms. Grant, and C.B.'s abusive and indecent display on being escorted to the quiet room around 9:30 p.m. , paint a picture of a very disturbed, angry person who resents authority and seeks to manipulate others to her own ends. on her version, C.B. only mentioned the incident to a friend while she was held at York O&D. She made no complaint to other staff. As Ear as she was concerned, she had struck a bargain with the grievor. Indeed, after her stay in 1985, C.B. made no mention of the incident until the spring of 1987, when a social woSker from Catholic Children's Aid suggested to her that there had been an incident. C.B. denied that anything had occurred until she was interviewed by another social worker, the Ministry investigator, Maureen Nauss, in March 1987. C.B. , in her evidence, knew that her testimony would land the grievor in serious trouble. When asked why she denied any sexual impropriety during the investigation, then later changed the nature of her allegation from sexual fondling to intercourse, C.H. gave no satisfactory explanation. Her explanation was that she didn't want to hurt Mr . Neckles, but had come to the realization that she had a duty to society to tell what had happened. The Board finds the complainants' self- 12 I i I described altruism implausible. If she had managed to strike a sexual bargain with the grievor and engaged in pleasant conversation throughout the supervision, why was she so angry and out of control when she was paced in the quiet room between 9:30 to 10:00 p.m.? Why did she keep amending her versus of what transpired? The Board finds that the grievor did not have sexual intercourse with C.B. on February 10, 1985. The Board turns to the issue as to whether the grievor gave C.B. his phone number and address. This allegation is related to the third allegation that in the fall of 1985, the grievor and C.S. engaged in .inappropriate sexual activity at his apartment. During the course of the Ministry's investigation of these allegations and her testimony at the hearing, C.B. was able to be very specific as to the location of the grievor's apartment. Indeed, having taken a view, the Board finds that the details she related about the surrounding landmarks are essentially correct. Furthermore, C.B. was able to describe correctly the type, arrangement and colour of furniture, and the apartment lay-out. Her description of what can be seen from the bedroom windows and from the kitchen window could not be given, unless C.B. had been able to explore the inside of the grievor's apartment to some extent. The grievor admitted that C.B. turned up at his apartment one day, but he said she remained near the entrance to the apartment. If C.B. had merely been left to stand at the doorway, or even to sit on the arm of the couch adjacent to the doorway while she was making her telephone call, she would not have been able to see where the apartment bathroom was located. Even on the grievor's version of 13 _ s C.B.'s visit to his apartment, he was not able to observe her while he had his roan door closed to change for work. Both were agreed that C.B. had dropped by just before he was leaving for work. The Board finds on the whole of the evidence, that the grievor likely tried to act sympathetically to the plight of C.B. The Board accepts the evidence of Lorie Grant that the grievor told her on February 10th that he had talked with C.B. and had managed to settle her down. The grievor describes himself as the sort of staff who tries to achieve a close and supportive rapport with residents. His former experience as a teacher would likely incline him in that direction. Although Ms. Grant suggests that a list of staff names, addresses, and phone numbers is often left out for residents to see, there was no connection in the evidence before this Board to establish that C.B. obtained the grievor's phone number and address in that fashion. The Board finds that, in a misguided effort to be helpful to C.B., the grievor gave her his unlisted telephone number and told her where he lived, and suggested to her that she could call-him if she needed help. She is familiar enough with that neighbourhood, that she was able to locate his apartment several months later. however, the Board is not persuaded of the truth of C.B.'s allegation that she visited the grievor's apartment on a second occasion and engaged in inappropriate sexual activity with the grievor. the Board surmises from the evidence, that C.B. visited his apartment on at least one occasion, at which time he assisted her by offering the use of his telephone, and he may have bought her some food. It may be that during the visit, Mr. Neckles talked with C.B., in an effort to counsel her. While such a visit certainly presented an opportunity to have 14 i sane sort of sexual encounter with C.B., the Board is not convinced from the whole of the evidence that the grievor took advantage of C.B. in this way. In short, the Board finds that the employer has established the second allegation against the grievor contained in the letter of discharge dated June 8, 1987, and has established that C.B. visited his apartment in the Fall of 1985. However, the Board is not convinced that the grievor engaged in sexual misconduct with C.B. on February 10, 1985 at the York O&D Centre, or at any subsequent time. The Board turns to consider the allegations against the grievor concerning his contact with former resident D.C. The grievor stated that sometime in 1986, shortly before D.C. was released from York Observation & Detention Centre, he was supervising a visit with her mother. In the conversation, D.C. mentioned that she had lost her jacket at Larry's Hideaway when that establishment had been "busted". D.C. described it as a jacket with white down sleeves and blue front. The grievor offered to retrieve the jacket if possible, and agreed to escort D.C. to her court hearing the next day. In chief, the grievor testified that he approached Mr. Hugh Robinson, Programme Manager at York Observation & Detention Centre, to ask permission to find the jacket and to maintain contact with D.C. He stated that such permission was granted. The grievor maintained that prior to November 3, 1986, when Ms. Renwick became Superintendent, the administration had encouraged staff to develop close rapport with residents and that continuing contact for follow--up had not been discouraged. In chief, he acknowledged that he had no 15 conversations with Mr. McGoff, the previous Superintendent, concerning the issue of contact with residents. However, he recalled that when he had received a letter of gratitude from a boy who had been a resident, and with whom he had continuing contact, Mr. McGoff had praised him for good work. In cross--examination, the grievor vacillated about the scope of permission he had received from Mr. Robinson concerning contact with D.C. Eventually, his counsel stipulated that the grievor understood that permission had been granted to maintain contact with D.C. only as required to return her jacket. Shortly after her release at the court hearing on August 1, 1985, the grievor received a letter from D.C. At the hearing, D.C. denied that she had written the letter, although she identified the writing as hers, as did her mother. Q.C. acknowledged that, the grievor had been one of her favorite staff, although she said she liked another staff member even better. She agreed that she had asked the grievor to accompany her to her court- hearing on August 1, 1986. Lurie Grant testified that D.C. "had a crush" on the grievor. The grievor knew that D.C. liked him a lot and that he was her favorite staff. The Board finds that the letter was written by D.C. . The letter was in the following form: 16 - I 1 1 i oLL c-) (xy�.. a U-n tom. u- ucar i t Kau, . 4J a4` JOB 'f1/�, / c !, l i I ' I y �C) .,' �:L CLLCUJ- &JTJ) Lcj,-/) (--P- -u cu, \-C/ k -n Lplc,/z C- Y -�rz L 4' v .1 CjJj Al 18 D.C. stated that when she returned from court on August 1, 1986 to collect her belongings at York Observation & Detention Centre, the grievor gave her his telephone number and told her to give him a call. In cross- examination, D.C. said the grievor gave her his phone number twice - once in July, but she lost it, and again on August 1, 1986 when she was leaving. The grievor recalled that the matter of finding the ski-jacket arose at an earlier placement than the placement at the end of the July, 1986. He stated that after he had searched for the jacket without success, he placed a tali to D.C. at Viking Group Home, but found that she was absent without leave. Thus, he wasn't able to report that he was unable to find the jacket, until D.C. was resident at York Observation & Detention Centre`again at the end of July, 1986. D.C. testified that about a week after she was released on August 1, 1986, the grievor telephoned her and asked her up to his apartment. However, D.C. went on to say that she received several more calls from the grievor to this effect until she finally went to his apartment on September 9, 1986. The grievor denied having placed any telephone calls to D.C. shortly after her release on August 1, 1986. The grievor testified that he left on a trip to Grenada from August 8th to 21st, 1986, and the stamps on his passport corroborate his evidence to this effect. He stated that shortly after his return from vacation he received a telephone call from D.C. He recalled that he was busy at the time she called and was unable to chat. He returned her call several days later. He stated that a man, who D.C. said was her brother, answered the phone initially. The grievor identified himself as staff from York O&D, and asked to speak to D.C. . When she came to the telephone, he asked how she was progressing and what she was 19 Y doing. He denied that there was any Flirtatious or seductive message or tone to the conversation. 'Ibis telephone call apparently triggered a complaint by D.C.'s family to her probation officer, who contacted the Programme Manager at York Observation & Detention Centre, Mr. Robinson. The letter to Mr. Robinson was to the following effect: Further to our discussion of October 21 on the above contact reported to me by Pam Greenberg of C.T.Y.S., I spoke with G.C. , D.C.'s brother, on the morning of October 22. G.C. confirmed that he had overheard the telephone call between 'D.C. and Mr. Neckles, some 6-8 weeks ago. My questions and the answers follows: Q. I understand that you overheard a call between D.C. and a Mr. Neckles, about 6-8 weeks ago. A. Yes. Q. What do you know about him? A. Not much, except that he works at 311 Jarvis Street as a guard or security person or something. Q. D.C. has talked about him before then? A. Yes, but not in the way a kid should be talking about somebody who does the work he does. Q. Was there something about the call that concerned you? A. It struck me as being odd .that he'd be calling her. I mean, the guy is 35 years old. Q. Do you recall how the call went? A. I answered the phone. When I gave it to D.C. , I went to another phone and listened. He (Neckles) asked "Who was that?" . When D.C. said it was her brother, he said "It didn't sound like your brother wanted me to talk to you. Why?". He then asked "How come you haven't been phoning me? I thought we were supposed to be going to Jamaica". He asked if she was still on the streets, and if she had been busted when Larry's Hideaway was raided. overall, G.C. expressed the feeling that the call was more than a simple call from a concerned worker. He noted that he never inquired how school was going or how D.C.'s family was, or any of the questions that he supposed someone with his work background 20 would be asking. Mrs. C. also voiced concerns about the content of the contacts. It should be stated that there appear to be anti-black biases within the C. household, and specifically in G.C. These stem, among other things, from seeing D.C. involved with and exploited by a number of black pimps. This should be considered when interpreting G.C.'s statement. Nevertheless, for the simple reason that the family has these concerns, and views Mr. Neckles' contacts in a negative light, I would ask that they be discontinued. On a professional ground I would emphasize that request even more so. D.C. is a highly confused young person with many problems, and contact as ambiguous as the one described, regardless of intent, can only have a negative effect. If D.C. initiates a contact herself, I would hope that Mr. Neckles would advise you immediately; and exercise care in his choice of words and topics. Mr. Robinson said he met with the grievor on October 21, 1986 and asked the grievor for his version of events. Mr. Robinson said he asked the grievor how D.C. got his telephone number, to which the grievor replied he didn't know. The grievor testified ,that Mr. Robinson did not ask how he received her telephone number - later he modified his stance saying that he did not recall at the time of his meeting with Mr. Robinson that he and D.C. had exchanged telephone numbers when the grievor had offered to find D.C.'s ski-jacket. Mr. Robinson stated that he asked the grievor about the comment "I thought we were supposed to be going to Jamaica" . Mr. Robinson recollected that the grievor acknowledged the comment, but explained that he was only joking. The grievor said that he told Mr. Robinson that he was from Grenada, not Jamaica. He denied that he ever spoke to D.C. about going on vacation to the islands. D.C. testified that the grievor had spoken to her at one time about travelling together to Bermuda. Mr. Robinson asked the grievor to write up a report of his response. This report was written by the grievor on the same day. The content of the report was to the following effect: 21 Y I I f I have known D.C. for about 4 years, during which time she was a resident at 311 Jarvis. She was always respectful to me and labelled me as her "favorite staff" . During one of her temporary placements here she indicated she had left her ski-jacket at Larry's Hideaway. Her mother, who had cane to visit her, felt very sentimental about the jacket. I told them that I would try to retrieve it. I sought permission from Mr. Robinson, Miss Madden (child advocate) , and D.C.'s probation officer. I went to Larry's Hideaway but did not find the jacket. I contacted Viking Group Home staff and asked to convey the information to D.C. . I also enquired how D.C. was doing. They informed me that she was "on the run" . D.C. had written to me several times earlier from her placement but. I never answered. I saw D.C. when she carne to Detention towards the end of July 1986. I told her that I did not find the jacket. On her last court appearance she asked if I could be ` present. I escorted her . D.C. wrote me a letter which was either handed to me by staff or put in my mailbox (I gave it to Mr. Robinson) . D.C. called me about six weeks ago. I think I was on my way out or I was busy. I told her I would get back to her. I returned the call a few days later. A male voice answered the phone. I identified myself and asked to speak to D.C. I cannot remember how I addressed her, but I am certain it couldn't be rude nor seductive. I asked her how she was getting along, she said that she was trying to stay out of trouble and that -she was involved in a "workschool" programme at Broadview and Queen Street. I encouraged her to keep on trying, not to follow idle companions and to stay off the streets. Nothing intimate nor seductive was discussed nor suggested during the course of our conversation. She grievor contends that he did not have another meeting with Mr. Robinson, but he acknowledged that Mr. Robinson did advise him not to have any further contact. Mr. Robinson maintained that he met with the grievor again on November 6th to review the grievor's report and to advise him that contact with D.C. should be ended. Mr. Robinson indicated that the grievor acknowledged that he had contravened the policy against contacts. The 22 ' c grievor could not account for the differences between his testimony and that of Mr. Robinson. The Board finds that Mr. Robinson did meet twice with the grievor. Elollowing the meeting, Mr . Robinson sent a letter to the grievor containing a direction: Dear Ray: I am writing to you as a follow up to our meeting on November 6, 1986 regarding D.C. As I indicated in the meeting Ray, all contact with ex- f residents of this facility must be first approved by the Superintendent. You gave me your assurance that you will adhere to this policy should any children contact you in the future. With regards to D.C. , we agreed that you will have no further contact with her. I recognize that your intentions were well founded Ray, but the emotional difficulties experienced by this girl, and the sensitivity of her family to any contacts she keeps, requires that we leave the contact to her workers. If Diane should contact you Ray, I think it is fair that you explain to her that you have been directed by your supervisor to end contact with her. Advise her to speak with her Probation Officer about the matter. (I have informed the Probation officer that he may receive a call from Diane regarding the issue.) of course, any contact she makes with you should be reported to myself or Marilyn Renwick. Thank you, Hugh Robinson Program Manager 23 i i He also sent a report to D.C.'s probation officer which reads as follows: Dear Mark: I am writing to inform you of my actions regarding the D.C. incident. I met with Mr . Neckles on several occasions (our concluding meeting took place on November , 1986) and I discussed the relationship, his motivation, and the brother's complaint thoroughly with him. As expected, while responsive to my final direction, Mr. Neckles acknowledged that he erred in not informing me that he was planning to call D.C. He stressed, however, that he had identified himself as an 0/D staff when he contacted D.C. . Mr. Neckles felt this latter point was reflective of his "up front" approach to the relationship. Nevertheless, Mark, I took your direction and have asked Mr. Neckles not to have any further contact with D.C. and to report any contact that she initiates directly to myself. I explained to Ray that D.C.'s emotional difficulties, combined with the sensitivity of her family, require that contact be left to the involved professionals such as yourself. I also explained the problems that are created when workers are not aware of other relationships - such as his with D.C. . As to how Mr. Neckles should respond to D.C. if she calls him, I have asked him to explain that his supervisor has directed him to end contact and that she should call her Probation Officer if she wants more clarification. Perhaps, you and I can talk more about his process Mark. The content of this letter will serve to resolve this matter. Please call me, Mark, if you have any more questions. Sincerely, Hugh Robinson Program Manager 24 i In fact, on the grievor's own evidence, D.C. had visited his apartment twice prior to October 21, 1986. The grievor made no mention of these contacts to Mr. Robinson. His only explanation was that Mr. Robinson did not ask about their. Yet it is clear that the grievor knew Mr . Robinson was seeking information about the nature of the relationship between the grievor and D.C. . The grievor volunteered to produce the letter from D.C. dated July 31, 1986 and he reported that he had received several others from D.C. during the four years he had known her. f Tne grievor could not recall, the dates upon which D.C. visited him at his apartment. D.C. testified that she visited the grievor in the evening hours of September 9th and 12th, 1986. In cross-examination, she said she wasn't certain that the first visit was September 9th, but the second visit was September 12th. The shift schedule and daily attendance register indicate that the grievor called in sick at 1:40 p.m. on September 9th, 1986 and did not work his scheduled #3 shift from 11:30 p.m. to 7:00 a.m. The grievor was not scheduled to work on September 12th, 1986. These dates would be around six to eight weeks before the first meeting with Mr. Robinson and would coincide with the point in time when the grievor says D.C. telephoned him. Before her first visit to his apartment, the grievor testified that D.C. had telephoned and sounded desperate to talk to him. Mhe grievor gave her directions and she arrived at his apartment around 9:00 p.m. In cross-examination, the grievor mentioned that on this visit he gave her a shirt to wear while she went to iron her top in one of the bedrooms. D.C. told him she was pregnant and didn't know what she should do; she mentioned that her parents had offered to let her reside at home until the baby was born. He said that D.C. mentioned that she was worried about an 25 upcoming trial at which she would be required to testify against a pimp of wham she was afraid. He added that D.C. acknowledged that a friend named S.D. had been urging her to go to Montreal together to work the streets. The grievor denied having sexual intercourse with D.C. that night, or any other occasion. D.C. testified that she visited the grievor on September 9th in the early evening in response to his invitation. She said they talked over some of her family and personal problems, as described by the grievor, watched I television in the bedroom, then engaged in sexual intercourse. In cross- examination, she stated that she left around 9:00 or 10:00 p.m., with the grievor, who said he had to go to work. D.C. said that the grievor ` telephoned her at home again several tunes and invited her up to his apartment on the pretext of meeting Ills sister. D.C. described the weather as rainy on the second visit and her clothes were damp.when she arrived. The grievor gave her a long T-shirt to wear. They chatted, watched television and engaged in sexual intercourse again. She did not speak to him or visit 'him again. She said she told no one of her contacts with the grievor until she was interviewed by the Ministry investigator in March 1987. She testified that she did not know C.B., nor was she aware of any other allegations against Mr. Neckles. The grievor denied having placed more telephone calls to D.C. after her first visit. He said that D.C. called him several times from the time he returned from Grenada until her second visit. He could not recollect the date, but said he was surprised when D.C. turned up at his apartment one evening again. He said that when she arrived he said, "I told you not to cane - what are you doing here?". She replied that she just wanted to talk 26 i to him. The grievor then said that he wanted some privacy. She told him not to be so arrogant and said she wouldn't stay, but asked to use the telephone. The grievor overheard her telephone conversation and surmised that she was arranging to go back on the streets. The grievor said that he was angry at her and said, ",rust don't call me again if you go back on the street". He said that was the last time he saw or heard from her until she testified at the hearing. The grievor denied that he had sexual intercourse with D.C. on this occasion or at any other time. Once again, the Board has found it a taxing task to cull through the I evidence for grains of truth. The Board finds that D.C.'s testimony was unreliable in many respects. In particular, such matters as her denial of the authorship of the July 31st letter, and her assertion of the number of calls which she alleges the grievor made to her were incredible. Furthermore, the Board is cognizant from the evidence of Lorie Grant that D.C. has a reputation amongst the staff as a teller of tall tales. The evidence of D.C.'s mother would bear that out as well. D.C.'s mother mentioned that D.C. told her approximately. two months before„the hearing that she had had sexual intercourse with the grievor in the washroom at York 0&D. D.C. made no such allegation at the hearing and denied having mentioned to anyone having sexual intercourse with Mr. Neckles until questioned by Ms. Nauss in March, 1987. Apparently, D.C. told her mother this to scandalize her. However, there is some agreement between the evidence of the grievor and D.C. that there were two visits to his apartment and that there were no further visits or contact after the second visit. If the date of the first visit was other than September 9th, and D.C. allowed that this date could be inaccurate, it may well have occurred on another 27 I • J r night the grievor was scheduled to work the night shift. The grievor was scheduled to work the third shift from Friday, September 5th to Tuesday, September 11th, 1986. There was agreement that on one of the two visits, the night was rainy and D.C. borrowed a top from the grievor to wear while her shirt dried. Both were agreed that a long conversation ensued about personal issues affecting D.C. The only issue about which D.C. was defensive in cross- examination was the suggestion that S.D. was urging her to go to Montreal to work the streets. The explanation she gave was that by August, 1986, t S.D. was already in Montreal and she was not considering going there. Unlike his testimony concerning his contact with C.B. , the grievor was able to relate a great deal of detail - even particulars of their conversation - concerning his contacts with D.C. This might be explained by the fact that the alleged incident with C.B. was more remote in time than the contacts with D.C. The grievor remained composed throughout his testimony concerning C.B., even though the sexual encounters were described more graphically. However, by contrast, he became very agitated and lost control when pressed in cross-examination about what transpired in his contacts with D.C. , and when pressed about what he knew about the policy against such contacts. The Board infers from this that the grievor had an emotional attachment to D.C. , but did not have such an emotional investment i in C.B. The Board notes that when Mr. Robinson met with the grievor on October 21, 1986, the grievor knew or ought to have known that Mr. Robinson was trying to ascertain what the nature of the contacts were with D.C. The grievor volunteered the information that there had been ongoing 28 i s correspondence over the four years he had known D.C. . He even produced a letter. Yet he made no mention of the visits to his apartment. His report specifically outlines the permission he sought and obtained for the purpose of retrieving D.C.'s jacket. This would indicate the grievor knew that permission was required for continuing contact. The policy had been in effect at least since 1980 and the grievor indicated on a standard form that he had reviewed the revised manual from September 18th-25th, 1986, a mere month before meeting Mr. Robinson. The grievor had no satisfactory explanation as to why his evidence conflicted with that of Mr. Robinson concerning the nature of his contacts with D.C. , and as to what he said at the October 21st and November 6th meetings. Mr. Robinson seemed to have exaggerated in his oral testimony the number of 'times he may have met with Mr. Neckles, but given the passage of time, his recollection that there were at least two meetings, and from the documentary evidence of the November 14th letters, it seems that the grievor met with Mr. Robinson on October 21st and November 6th, 1986. Mr. Robinson recalled that the grievor indicated to him that he didn't know haw D.C. obtained his phone number, but he acknowledged that he had violated the policy against contacts in some respects, although he reminded Mr. Robinson of the permission obtained previously concerning retrieval of the jacket. while D.C. recalled that the grievor had spoken to her of travelling with him to Bermuda, Mr. Robinson said the grievor acknowledged that he might have joked with D.C. about going .to Jamaica. At the hearing, the grievor was able to remember how D.C. got his telephone number and acknowledged that he may have given her his phone number twice -- once when 29 R r he was about to look for D.C.'s jacket and later in July or August, 1986. The grievor flatly denied having joked with D.C. at all about going to any island. Mr . Robinson indicated that the grievor acknowledged that he should have brought D.C.'s letter to his attention at the time he received it. In cross-examination, when pressed on the matter, the grievor begrudgingly acknowledged that he had an obligation to report the nature of his contact with C.B. at his apartment in the Fall of 1985. He maintained that he didn't mention the two visits by D.C. to his apartment because he wasn't asked about them. Yet the Board is satisfied that the grievor realized that Mr. Robinson was seeking information about the nature of his involvement with D.C. For this reason, he volunteered production of the one letter and mentioned previous correspondence in his report. Yet he omitted to mention the visits to his apartment which had occurred about six to eight weeks before. The Board finds that the grievor purposely omitted mentioning these contacts at his apartment because he knew they were in violation of Ministry policy. Both Ms. Renwick and Mr. Robinson attended a meeting on May 6, 1987 with the grievor and his union representative. At that meeting, the grievor, through his representative, denied any sexual involvement with either C.B. or D.C. One visit to his apartment by C.B. and two visits by D.C. were acknowledged. However, as at the meeting with Mr. Robinson in October, 1986, the grievor maintained that he did not know how D.C. had his unlisted phone number. Yet, at the hearing, he admitted that he gave her his telephone number at the time he was going to retrieve her jacket and later gave his phone number to D.C. through her worker. The grievor explained that he could not remember that he had given D.C. his phone number 30 i 1 because he was flabbergasted by the nature of the allegations levelled against him. Both Mr. Robinson and Ms. Renwick recalled that at a second disciplinary meeting on June 8, 1987, the grievor, after being confronted with the allegations again, commented, "I can understand C.B., but not D.C.". Ms. Renwick took this as an admission of guilt. The grievor at the hearing, explained that he meant that C.B. was a malicious, angry person who could be expected to concoct such a story, but that he believed D.C. to be a good person essentially, who would not do so. Indeed it is clear from the evidence that D.C. and the grievor had developed a close rapport over four years during which D.C. was required to stay at York O&D episodically. The grievor knew that he was one of her favourite staff. It is apparent that the grievor developed a special interest in D.C.'s welfare. As the grievor and Ms. Renwick indicated, it is expected that staff at York 0&D will perform their duties in a manner which balances the custodial ' function with a nurturing role. It is apparent from the wording of her July 31st, 1986 letter that D.C. is not a bashful girl, but wears her heart on her sleeve. She admitted to having prostituted. It does not take a giant leap of logic to conclude that she would know how to entice a person such as the grievor into a sexual encounter, if she so intended. Indeed, the tone of her July 31st letter was flirtatious and should have alerted the grievor to the fact that D.C. had a propensity to be sexually manipulative. Indeed, D.C. is described by her probation officer as "a highly confused young person with many problems". Both the grievor and D.C. are agreed that on one of the visits to his apartment, D.C. was caught in the rain. When she arrived at the apartment, 31 n she removed her wet clothing and borrowed a long T-shirt from the grievor to wear. They engaged in a long conversation about matters intimate to D.C. The grievor provided the reassurance she was seeking. The grievor, at 38, is still unmarried and lives alone. On D.C.'s version, one thing led to another, although on her version of the facts, she was responding to the grievor's advances. Had the grievor not anitted to tell Mr. Robinson about D.C.'s visits, and not reacted with so much discomfiture when he was pressed in cross-examination about the nature of his involvement with D.C. and about his knowledge of the policy against contacts and obligations to report, the Board would have concluded readily that the grievor merely counselled D.C. The difficulty is that the evidence of D.C. is also very unreliable and it is clear that she has an inclination to sexualize her contacts with men, and a propensity to be untruthful. ribe Board therefore finds that the evidence falls short of being clear, cogent and compelling on the issue of whether the grievor engaged in sexual intercourse with D.C. at his apartment on or about September 9, 1986. However, it seems likely that on the second visit, the grievor became angry with D.C. because he surmised that she was working the streets again. This would explain why their contacts by telephone, letter, and personal visits ended so abruptly. on D.C.'s version, there was no reason why, after the second visit, their involvement could not continue. On the grievor's version, he felt betrayed by the breach of her promise to stay off the streets and realized the futility of his effort to rehabilitate her. Counsel for the grievor rightly conceded that if this Board were to make a finding of sexual misconduct, then the Employer would have met the onus upon it to establish just cause for discharge. The Board has refrained 32 f I - � ti r+ from finding sexual misconduct on the part of the grievor . However, the Board has found that the grievor's contacts with C.B. and D.C. at his apartment did constitute breaches of Ministry policy. The Ministry's Standards of Conduct and Disciplinary Guidelines established that for a first infraction, up to three days' suspension can be expected as a penalty for breach of policies; for a second infraction, up to five days' suspension or dismissal is stipulated as the penalty. The policy manual for the Boys' Unit at York O&D has stipulated the following since 1980: Any sexual overtures from children to staff must be firmly rejected by staff. If a staff member is contacted by a child who has been in the 0/D Home, this contact must be reported to the Superintendent. Any future contact with a child who has been in the 0/D Hone must be approved by the Superintendent. The grievor acknowledged having lead or having received instruction about the Ministry's policy on staff conduct and discipline on April 23rd, 1982. Naturally enough, he couldn' t recall having signed that acknowledgement some six years earlier. However, the grievor participated with the other staff of the Boys' Unit in a policy review session for the revised policy manual in October, 1985. He signed a form indicating he had reviewed the revised manual frcm September 18 to 25th, 1985. His report of October 21, 1986 demonstrates that he knew he needed authorization to continue contact with D.C. for the purpose of retrieving her jacket. The evidence indicates that when allegations against the grievor and another staff came to light in the fall of 1986, Ms. Renwick held a meeting to refresh staff's awareness of the policy against continuing contacts with residents. 33 Ms. Renwick candidly acknowledged that she did not know if the former Superintendent took a more lenient approach to this matter, but the evidence of the grievor and of Mr. Fraser would suggest that this was so. However, the evidence did not go so far as to suggest that the current or former Superintendent countenanced or encouraged unescorted visits to a staff's home by current or former residents of the opposite sex. In any event, the evidence is that the grievor sought and obtained permission from Mr. Robinson to retrieve D.C.'s jacket. The grievor could not reasonably conclude that he had permission to continue contact with D.C. afterwards or to allow visits by her to his apartment. The Board therefore finds that the grievor was in breach of the Rnployer's policy against continuing contact by his conduct in respect to D.C. . The Board has already found that the grievor gave C.B. his unlisted home phone number, told her where he lived, and indicated that she could avail herself of his assistance, if need be, in the future. The Board finds that this conduct was inappropriate and in breach of the policy requirements against continuing contact. The Ministry's Standards of Conduct and Disciplinary Guidelines provide that for a second infraction the penalty ought to be up to five days' suspension or dismissal, depending upon the gravity of the breach and other relevant factors. In October 1986, D.C. was still on probation and was described by her probation officer as "a highly confused young person with many problems". It was the concern of the probation officer that continuing contact with the grievor, where there seemed to be undercurrents of intimacy, would have a negative effect on her rehabilitation. It is important to note that the Boys' Unit policy manual anticipates that 34 a residents will attempt to use sexual favours to their own ends - hence the admonition that any sexual overtures are to be firmly rejected. While the Board has stopped short of finding that there was sexual abuse of D.C. by the grievor, the Board finds that it was a grave lapse of judgement on his part to set up a situation whereby he was vulnerable to such an accusation. Tine grievor has worked as a Correctional officer at York o&b since August 1980. His contacts with D.C. continued over a course of four years. The letter of July .31st from D.C. to him was filled with romantic innuendo. He knew that it was a violation of Ministry policy not to firmly reject sexual overtures and to foster outside contact with residents, particularly at his home with a girl known to have emotional difficulties. The Board finds that the grievor's contact, with D.C. amounts to a second infraction of Ministry policy of grave proportions which compounds the breach of policy in respect to C.B. 9ne Board therefore finds that the Employer did not act unreasonably in deciding that the grievor ought to be dismissed. In the result, for the reasons given, the grievance is denied. 35 I e •b• Dated at Kingston, this 6th day of , 1989. J.E;, Emrich,, Vice-Chairperson "I dissent" (dissent attached) J. Solbet-g, Member H. R---obirts, =Riger 36 `r. Dissent from: Janet Solberg Union Nominee Re: OPSEU ( Neckles ) and Ministry of Community and Social Services GSB File Number 1291/87 This Board has cleared the grievor of any sexual misconduct . I believe that is a correct and just decision . But the Board did- find that the grievor committed two infractions of Ministry policy by his unauthorized contact with former residents . On that basis , the dismissal was upheld . To the extent that the Board relied on the Ministry 's disciplinary guidelines to sustain the discipline , I submit that the Board made an error in the interpretation and application of those guidelines . Ministry standards suggest a penalty of up to three days ' suspension for a first infraction and up to dismissal for a second infraction . However , those guidelines have been drafted within the context of progressive discipline . They contemplate incidents separated by an intervening period of time during which a grievor may either improve his behaviour or file a grievance on the first discipline imposed . That is not what happened in this instance . All claims against the grievor arose during one single Ministry investigation. And as a result , the grievor was confronted on one single occasion with all the charges which formed the basis for his dismissal . There was no "first" infraction , no warning , no chance to file a grievance , no opportunity to remedy his conduct , no intervening period , no "second" infraction . It was all of one piece . In my view , those circumstances more properly characterize the breaches of policy as a single infraction under the Ministry guidelines . As such, a suspension of some length is within reason; dismissal is not .