HomeMy WebLinkAbout1987-1291.Neckles.94-01-14- -
ONTARIO EMPLOYiS DE ‘,4 CO”RONNE CROWNEMPLOYEES DEL’ONiAR,O
GRIEVANCE CPMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
pJ ~&m +& b?:“‘
&‘-/ClF
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
BEmEN
BEFORE
FOR THE
GRIEVOR
FOR THE, EMPLOYER
HEARING
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Neckles) Grievor
-and-
The Crown in Right of Gntario
(Ministry of Community & Social Services)' Employer
J: EZnrich Vice-Chairperson
J. Solberg Member
H. Roberts Member
R. Wells
Counsel Gowling, Strathy & Henderson
Barristers & Solicitoi+
S. Mason
Counsel
Legal Services Branch Ministry of Community & Social Services
April 2, 1993
I” I
I also wish to emphasize that it is not mandatoryfor
~.. the Board to which this matter is remitted to deal with the
doctrine of progressive discipline. It was not applied by the
Ministry and appears to be something of a red herring. I
dealt with it only because the majority of the Board mis-
applied it and counsel for the Ministry contended that a mis-
,application of the doctrine was not an error in law and, in
any event, was not signifkmt to the decision under review.
On the other hand, this is not to say that the doctrine is
irrelevant. Depending, on the fimdings made by the Board
with respect to breaches of Ministry guidelines, it may be
raised by the griever as a limitation on the right of the
Ministry .-to discharge him. I am not in a position-~ to
anticipate those.fmdings nor the arguments arising out of
them.
As I have indicated, the Ministry relied upon seven
grounds of complaint as establishing just cause. There was
no reference to progressive discipline. The task of the Board
onthenewhesringwiLIbetodetermine~ifanyoralIofthese
~grounds were established and whether, if established, they
constituted just cause for dismiasaI...,.There is nothing in
principle to prevent the Board from finding that only one of . the grounds was established and that it alone constituted just
cause for dismissal. If that is the fmding, the next step is to
determine if the penalty of discharge is .excessive for the
ground established. The answer could be yes or no.
--Madame Justice Weiler, J.A., writing the minority report, agreed with the result,
but disagreed as to whether the Board’s interpretation of the disciplinary guidelines was
patently unreasonable. At ‘pp.572~573; Madame Justice Weiler reasons that the
fundamenttal issue is “whether the. conduct in question amotits to just cause for
dismissal - not what level of the guidelines the conduct has reached. The guidelines are
a factor to be considered but they are not to be applied mechanically or rigidly.” At
p.574, Madame Justice Weiler leaves open the questions of whether the guidelines apply
and how the guidelines are to be weighed as matters to be addressed in argument on the
rehearing.
2 - I -.
While the guidelines are intended to provide a degree
of predictability and accountability in the relationship
between the employer and the employee they do not have the
force of law. They are intended as guidance as to how the
employer will treat misconduct but they do not create the
same legitimate expectations created by rules of law.
Inasmuch as the question of justcause is to be left to another
Board, the question of whether the guidelines apply to this
situation and the role that they play in it should also be left
for argument.
At, p.576, Madame Justice Weiler turns to the question whether the Board’s ”
interpretation of the guidelines was patently unreasonable. At pp.574-575, the majority
opinion is summarized and reasons are elaborated concerning the assumptions
underlying that interpretation.
My colleagues are of the view that the only
interpretation of the guidelines. which is not patently
unreasonable is the interpretation given to the term “offence”
in criminal law. Because the secret contact with C.B., which
was fust chronologically in time, was not the subject of a
separate and previous disciplinary proceeding, the contact
with D.C., cannot, in their opinion be a “second offence”. This
ignores the fact that the employee’s earlier conduct co&d not
be subject to sanction because he successfully concealed it.
Progressive disciplinary guidelines presume that the
initial misconduct of the employee is known to the employer
and that the employer has the opportunity to discipline the
employee before other misconduct arises. If the employer
chooses to ignore the earlier conduct and not to discipline for
it, it is unfair if the employee is later found guilty of a
“second infraction” because, until then, the employee has not
been warned or put on notice as to the allegation of
misconduct, had an opportunity to grieve the allegation, and -
if adjudged guilty, has had no intervening period in which to
attempt to correct the misconduct.
The ordinary presuppositions, knowledge on the part
of the employer of the earlier misconduct ,and an opportunity
to discipline, do not apply here. To interpret the guidelines
as my colleagues suggest would be to impose the same result
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~irrespective of the validity. of these underlying
presuppositions.
At pp.575~576, Madame Justice Weiler proceeds to.articulate the reasons why in
her view it was not patently unreasonable in the circumstances of this case, for .the 1..
Board to have adopted the interpretive approach it did to the Ministry disciplinary
guidelines.
Even although the ordinary presuppositions do not
apply, must the result be the same because the guidelines
admit of only one interpretation?
The guidelines are intended not only to give the
employee notice as to what will be considered misconduct but
to limit the discretion of an empIoyer to impose a penalty on
an employee. In,fhis respect they are similar to sanctions
imposed at criminal law. However, they lack ‘the subtlety
and comprehensiveness of a code of law which envisages that
an accused person may have several charges or counts joined
.m one indictment and that where the conduct in question
does not relate to the same factual situation, consecutive
penalties may be imposed.
Perhaps one way to discover whether the guideline can
bear more than one interpretation is to consider whether the
interpretation placed on it by the Board ;-in these
circumstances contravened the principles of fundamental
justice. This would be in accordance with the approach taken
by the Supreme Court of Canada recently in R. v. Nova Scotia
Pharmacetiticd Society, [1992] 2 S.C.R. 606, 10 C.R.R. (2d)
34. There, Gonthier J., on behalf of the’ court, discussed the
principles of fundamental justice embodied in the rule of law.
He then applied these principles to determine whether
legislation making it an offence to act so as to “unduly” lessen
competition pursuant to the Combines Investigation Act
violated the Charter because it violated fundamental justice
as being vague.
Gonthier J. initially observed that the rule of law
limits enforcement discretion by introducing boundaries, and,
by giving citizens notice, delineates an area of risk for them.
Here, the employee was given notice that misconduct was
alleged in relation to two persons over two defmite periods of
time as soon as the employer discovered it. He was given an
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opportunity to grieve both the allegations of misconduct in
relation to C.B. and the allegations of misconduct in relation
to D.C. which he did. Adopting the interpretation of the
Board would.& result in a finding that the employee was
guilty of a second offence unless, after the fundamental
requirements of justice in relation to notice had been
observed, misconduct was proved both in relation to C.B. and
D.C.
Would an employee have a right to expect that if he
successfully concealed his misconduct from his empioyer, the
same area of. risk ~would be ..deIineated for him, no matter the
number of persons with whom he engaged in misconduct or
no matter for how long he did so? If so, it would mean, for
example,’ that an employee who dishonestly falsified his
attendance record for a year and was then caught would be
entitled to expect the same range of disciplinary sanction as
an employee who had do .so only once, namely a maximum
three-day suspension. This is the result if the guidelines
admit of only one interpretation.
Does the rule of law require this degree of certainty of
interpretation? The words of Gonthier J. at p.639 S.C.R.,
p.56 C.R.R., would appear to indicate it does not:
Semantic arguments, based on a perception of language a~
an unequivod medium, are unrealistic. Language is not the exact tool some may think its is. It corm& be argued
that an enactment can and must provide enough guidance
to predict the legal consequences of any given course of
conduct in advance. AlI it can do is enunciate some
boundaries, which u-e&e an area of risk. But it $ inherent
to our legal system that some conduct will fall along the
boundaries of the area of risk; no definite prediction can
then be made. Guidance, not direction, of conduct is a more
realistic objeotive.
The legal content of a rule is not exhausted by a search
for the meaning of a particular word, in this case the word,
“infraction”. Words must not be~looked at in a vacuum. As
,was pointed out in Nova Scotia Pharmaceutical Society, the
use of a word in another context or its synonym, is a
beginning of an inquiry intq its meaning, not an end.
History, public policy interests, the need to balance the
competing interests involved, the “spirit” as well as the letter
of the rule, and whether the rule is a per se rule which
dictates a result irrespective of circumstances or a more
general rule of reason, must all be taken into account before
interpretation.
Guidelines are an attempt to articulate a standard of
discipline which is proportionate to the misconduct involved.
It was not argued here that dismissal was a grossly
disproportionate punishment for the conduct as found by the
Board. Rather, it was argued that the interpretation given by
the Board to the guideline was patently unreasonable, as
though conformity .to a particular interpretation was an end
in itself, rather than the means to an end, namely,
proportionality.
In the instant case if the Board’s interpretation of the
guideline was accepted in situations where the employer was
unaware of the prior misconduct, it could coexist with the
more traditional interpretation afforded in the usual
situation. While the guideline would not afford the same
degree of ‘certainty, it would still be capable of being
understood, and the need for flexibility depending on the
underlying factual context would be recognized.
If the guidelines are applied to this situation, then, for
the reasons I have indicated, the interpretive approach
adopted by the majority of the Board does not strike me. as
patently unreasonable in these circumstances. Rather, it
reoognizes that the offender ought not to be treated as having
committed one offence inasmuch as there was misconduct
with two separate individuals and that the lack of discipline
with respect to the earlier misconduct was due to no fault of
the employer. In addition the Board’s interpretation does not
offend the rules of fundamental justice.
The parties werecagreed that the issue before the Board is to address the
question!, whether there is just cause for discipline based on the facts found&r the award
dated September 6, 1989 and if so, whether the penalty of discharge is excessive in all
the circumstances. _~
The effect of the Ministry’s disciplinary guidelines in assessing the
appropriateness of the.penalty if cause for discipline is found was addressed in argument
of the parties.
6
I
.: i(,
‘Ihe starting point for our analysis is that our jurisdiction to review whether there
is just cause for discipline and if so, to assess the propriety of the penalty imposed and
to substitute a~ penalty which the Board considers just and reasonable in all the
circumstances flows from s.18 and s19, particularly s.19(3), of the Crow Employees’
Collective Bargaining Act R.S.O. 1980 c.108.
18. (1) Every collective agreement shall be deemed to provide
that it is the exclusive function of the employer to manage,
which function, without limiting the generality of ~the
foregoing, includes the right to determine,
(a) employment, appointment, complement,
organization, assignment, discipline, dismissal,
suspension, work methods land procedures,
kinds and locations of equipment and
classification of positions;
and such matters will not be the subject of collective
bargaining nor come within the jurisdiction of a board.
(2) In addition to any other rights of grievanceunder a
collective agreement, an employee claiming, ..j
(cl that he has been disciplined or dismissed or
suspended from his employment without just
cause,
may process such matter in accordance with the grievance
procedure provided in the collective agreement, and failing
final determination under such procedure, the matte* may be
processed .in accordance with the procedure .for fmal
.determination applicable under section 19. R.S.O. 1980,
.c.108, s.18. ~_ .,
19. (1) Every collective agreement shall be deemed to provide
that in the event the parties are unable to effect a settlement
of any differences between them arising from the
interpretation, application, administration or alleged
contravention of the agreement, including any question as to
whether a matter is arbitrable, such matter may be referred
for arbitration to the Grievance Settlement Board and the
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Board after giving full opportunity to the parties to present
their evidence and to make their submissions; shall decide
the matter and its decision is final and binding upon the
parties and the employees covered by the agreement.
(3) Where the Grievance Settlement Board determines
that a disciplinary penalty or dismissal of an employee is
ticessive, it may substitute such .other penalty for .the
discipline or dismissal as it considers just and reasonable in
all the circumstances.
The allegations levied against the grievor and upon which the Employer relied in ..~
suspending the’grievor on December 2,1986 and in dismissing him on June 8, I987 were
set forth in the letter of discharge:
Dear Mr. NeckIes:
I have now had the opportunity to fully review the allegations made
against you, which were discussed at a meeting with you and your I&ion
representative on May 6th, 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 following incidents
occurred:
1) that on or .about February the lOth, 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 Detention Home; _
2)
3)
4)
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;
that in the Fall of 1985 at your home, you engaged in inappropriate
sexual activity with former resident C.B.;
that in the Summer of 1986 you acted inappropriately by giving
resident D.C. your home telephone number and asking her to
contact you;
I
.
5) that on several ocksions 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 home;
6) that on or about September the 9th, 1986, and again ori or about
September the 12th, 1986, you had sexual intercourse with former
resident D.C. at your home;
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 Home, both in the Home and after
their discharge, as exemplified by the allegations of sexual misconduct and
contact with former residents. In November I986 the Programme Manager
provided you with a letter regarding unauthorized contact with former
resident D.C.
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 f&m your employment as a Correctional
Officer II at the York Detention Home, effective June 8th, 1987.
Ymrs truly,
Marilyn Renwick
Superintendent
cc. Terry Moore, Union Rep.
9
The policies referred to in the allegations against the grievor were filed in
evidence. The relevant excerpt from the 1980 staff manual of York Observation and
Detention Home was ftied to show the policy at the time the grievor received orientation
following his hire in Au&&l980
SECTION VII
STAF’F ~PROCEDURES .>
VALUES, BEHAVIOUR & CONDUCT (cont’d) :; ; _ . .
Any sexual overtures from children to staff must be firmly rejected
br.~ staff.
No gifts mziy be accepted by staff from children or from the parents
of &i&en unless the Superintendent has been consulted and given
permission.
If a staff member is contacted by a child who has been in the O/D
Home, this contact must be reported to the Superintendent. Any future
contact with a child who has been in the 9/D Home must be approved’by
the Superintendent.
St&must not discuss another staff member with a child or give any
personal information about other staff without prior consuhation with
senior staff.
Staff must support decisions about children made by authorities.
Any staff with a complaint.about another staff member may submit
the complaint, in writing, to the Superintendent.
Staff should keep in mind, at a.U times, that they represent the
Ministry and the community to the &i&en and their parents. Their
behaviour should convey respect for.the children and their parents, as web
as respect for the O/D Home and its functions. Staff present role models
for the children who are placed in their care.
The manual was revised in the faII of 1985. The 1985 section on Staff Values;
Behaviour & Conduct was ffied as Exhibit #13:
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,
1.
2.
3.
4.
5.
6.
7.
8;
9.
STAFF VALUES. BEHAVIOUR & CONDUCT
Because we represent the Government of Ontario to children,
parents, and visitors, our attitude and behaviour should reflect the
highest standard of conduct. Please maintain a high degree of
respect and personal concern for those with whom we interact with.
The procedures outlined .in this manual are to be followed.
..-
Please advise peers and shift leaders when absent from assigned
work areas.
Support your w-workers by “sharing the load”. No one person
should carry the responsibility of ensuring that rules are upheld.
It is not acceptable to argue .in front of visitors of children.
Don’t discuss your peers (or their schedule) with the children.
Alcohol consumption is not permitted prior to the commencement of
your shift.
Any sexual overtures from children to staff must be firmly rejected.
Please advise shift leader or manager if this occurs.
If a staff member is contacted by a child who has been in the O/D
facility, this contact must be reported to the Superintendent. Any
future contact’ with the child must be approved by the
Superintendent.
The Ministry’s Standards of Conduct & Disciplinary Guidelines, which were
inserted as Section 21 of the staff manual, were filed as Exhibit #14. The relevant
sections are sections 6 and 10:
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STANDARDS I ~’ DISCPLTNARY CXJTDELlNES
Acoeptable U-ptsble First second Repeated
Employee Conduct conductmcb as Inhction Infraction -ona
i. compliance with Violation of policies, Up to three days’ Up to five days’
policies, statutes and statutory and regulatory suspension suspension or
regulatory requirements; work diSmiSSal
requirements related fraud; dishonesty,
(employees must be deception: falsifmtion of
informed of their records, reports,
obligations) 1 documents, etc.
.O. Orderly conduct Gambling; abusive From a mitten
From up to one month’s
threatening or profand reprimand up to suspension to dismissal
Iangu~ge. fighting. five days’
.horseplay, harassment or suspension &
threatening to harm diSmiSSEd
other3
Endangering wellteiig of W&en Dismissal
any persoti on Mi+try reprimand and
preL@ises; use of force in up to or+.
excess of approved month’s
methods resulting in suspension or
injury or *‘abuse to diSmiSSal
trainee, resident or war& dependent on
assault or sexual seriousness of
harassment of or offence
involvement with
employees, clients or
visitws
l *DefinitionofAbuse
The unwarranted and/or inappropriate use of physical force, psychological
‘sess 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.
In our award dated September 6,1989, we concluded that the,evidence supported
findings that allegations #2,4, 5 and 7 in the letter of discharge were established. At
p.18 of the award, we found that the grievor did not engage in inappropriate sexual
activity or sexual intercourse with resident C.B. at the York. Detention ~Home’ on
February 10,1985. Therefore, allegation #l in the discharge 1etter:was not established.
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.
At 0.15, the Board found that allegation #3 had not been established insofar as
the evidence-did not support a fmdirig that the grievor engaged in inappropriate sexual
activity with former resident C.B. at his home. The evidence did establish that in the
Fall of 1985 C.B. visited the grievor at his apartment, used his telephone, but the visit
was short and there was no extensive conversation about C.B.‘s perscnal problems. The
grievor never reported this contact to supervision at that time or any subsequent time.
This contact did not come to light until the ~Employer conducted an investigation
following the grievor’s suspension on December 2, 1986. .In cross-examination, the
suggestion was put to the grievor that he knew’he had an obligation to report this visit
by C.B. to his apartment. The grievor responded that he “might have an obligation to
report it.” When pressed as to whether he was av&re of the policy concerning reporting
contact by ex-residents, the grievor vacillated. He explained that it was not until the
hearing that it was brought to his attention that he had signed on April 23, 1982 a
formal written acknowledgement that Ministry, as well ,as Detention Centre, policies
pertaining to such contacts’ had been reviewed by him. The grievor seemed to suggest
that the Detention Home policy about contacts filed as Exhibit #12 was not enforced.
Despite suggestions in the evidence of some leniency in enforcing the policy
concerning reporting contacts with ex-residents, we concluded at p.34 of the award that
“the evidence did not go so far as to suggest that the current or former Superintendent
countenanced or encouraged‘unescorted visits to a staffs home by current or former
residents of the opposite sex.” At p.33 of the award, the Board noted that the grievor
acknowledged on April 23,1982 that he had reviewed Ministry policies on staff conduct
and discipline as well as the staff manual containing policies on values, behaviour and
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conduct. At p. 33, the Board noted that the grievor had acknowledged in September 1985
that he had reviewed the revised staff policy ~manual. In October 1985 he participated
in a policy review session of the.staff manual. While implicit in the award, we explicitly
find that the grievor knew or reasonably ought to have known that it was improper for
him not to have reported to supervision the visit by C.B. to his home in the fall of 1985.
Furthermore, as mentioned above, and at p.34 of the award;~ the Board-found that the
grievor breached policy requirements and behaved inappropriately by divulging his
unlisted telephone number, giving C.B. his address, and inviting her to contact him.
Accordingly, allegations #2 and #7 in the discharge letter are established on the evidence
in respect to C.B.
In respect to allegation #6 the Board concluded, at p.32 of the award, that the
evidence was not clear, cogent, and convincing enough upon which to base so grave a
fmding that the grievor had engaged in sexual intercourse’with D.C. at his apartment -. *_: --.
on or about September 9, 1986. The reasons set forth our doubts as to the grievor’s
credibility on this issue, as well as our doubts about D.C.‘s credibility on this point.
UItimately, the finding turned upon the onus of proof upon the Employer. The burden
of proof required us to fmd on clear, convincing evidence, commensurate with the gravity
of the allegations against the grievor, which involve abuse of his authority and ssxual
misconduct with minors, that it was more probable than not that the grievor had
engaged in intercourse with D.C. at his apartment. The evidence did not meet. that
standard and we concluded that allegation #6 in the discharge letter was not established.
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Given that allegations #l, 3 and 6 were found not established on the evidence, it
followed that the grievor was not in breach of the Ministry’s Standards-of Conduct and
Disciplinary Guidelines #lo, as alleged in the discharge letter.
We have found that allegations #2, 4, 5 and 7 a&established in respect to the
grievor’s contact with D.C. and C.B. At p.34 of the award, we stated the finding that the
grievor behaved inappropriately and breached the policy concerning contacts by allowing
D.C. to contact him through visits to his apartment on September 9 and 12, 1986. We
would add in further explanation of our fmding that it was improper and in breach of
.-. policy for the grievor to have fostered contacts by DC. over a four year period and ,to
have omitted to report the visits to his apartment, particularly when the grievor was
questioned by supervision twice concerning the nature of his relationship with DC. The
Union argued before us on April 2, 1993 that it was a change of grounds for the
Employer to rely upon the grievor’s failure to report his contacts with, C.B. and
particulary with D.C. to Mr. Robinson. We do not fmd merit in that argument. The i
discharge letter speci&ally refers to the grievor’s failure to observe the policy of the
Detention Home Manual on ‘Staff Values, Behaviour and Conduct” relating to the
procedure for contact with ex-residents. Since 1980, that manual required comacts with
ex-residents to be reported to the Superintendent and’any future contact to be approved
by the Superintendent. In our award at p.33, we held that allegation #7 was established
in respect to C.B. and D.C. In this award, we have clarified our reasons on these points.
Based upon the facts as found, we conclude that the Employer has met the burden
upon it to establish that it had cause to impose some discipline upon the grievor. The
grievor’s position as a Correctional Officer at York Observation and Detention Centre
._c 15
entails the exercise of authority .over the security and quality of life of a vulnerable
resident population. As a phase I facility under The Young Offender’s Act, this facility
houses children ranging in age from 12 to 16 years who have been placed in secure
detention or secure custody. The residents are .generally suffering from significant
emotional and behavioural problems which have led to the commission of offences. It
.~ ~was apparent from the testimony that both~ C.B. and D.C. were no exception in this
respect. The preamble and content of-the 1980 and 1985 versions of the policies on Staff
Values, Behaviour and Conduct makes it clear that there is a clear expectation upon staff
to treat residents with respect and to adhere to an exemplary standard of conduct worthy
of the’ public trust. The policies contemplate that residents may use various strategies,
including sexual overtures, as a means to manipulate persons in authority over them.
For this reason, there is an admonition to reject sexual overtures unequivocally. To
Meguard the integrity and reputation of the staff and the facility from allegations of
abuse of authority, whether this be complicated by allegations of sexual harassment or.
not, contacts with residents and ex-residents are not to be initiated or invited by staff,
but reported to and approved by supervision. We have found on the facts that the
grievor knew of the policy requirements and breached them in respect to his contacts
with C.B. and his contacts with D.C. The policy is well-founded and we conclude that
the grievor’s misconduct constitutes just cause ,to impose discipline.
We turnto consider the issue of whether the penalty of discharge was excessive,
and if so, what penalty would be just and reasonable in all the circumstances.
We begin by considering in what fashion, if any, the Ministry’s Standards of
Conduct and Disciplinary Guidelines (the guidelines) constrain us in reviewing whether
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the penalty of discharge was excessive. We note that guidelines #6 and #lO were relied
upon in the letter~of discharge.. We have already concluded that guideline #IO has no
application.on the facts as found. The effect of guideline #6 remains to be considered.
Our jurisdiction to assess the propriety of the penalty flows from the s.19(3) of the
Crown Employees’ Collective Bargainfng Act. The guidelines are not jointly agreed by
the parties and do not form p.art of the c@active agreement between Management Board
of Cabinet and O.P.S.E.U. Bather, these guidelines are an emanation of the Employer’s
right to impose discipline, as set forth in S.l8(l)(a) of the Crorcll Employ&’ Collective .z
Bargaining Act. As such, the application of such guidelines is subject to the right to
grieve just cause as set forth in s.l8(2)(c) and the jurisdiction of this Board to substitute
a penalty where it determines that there is cause for discipline and the disciplinary
penalty of dismissal is excessive, as set forth in s.19(3). The guidelines serve as evidence
of the gravity with which the employer views the various sorts of misconduct identified.
They further serve the dual purpose of constituting notice to the employees of the
escalating penalties to be expected from repeated instances of such misconduct and they
constitute a qua&z&ion upon the Employer’s discretion to impose a penal* in respect
to each instance of misconduct. The objective of such a system would seem to be to guide
the uniform application of disciplinary penalties.
The effect of an Employer’s codified approach to progressive discipline has been
‘considered in a number of cases, such as the celebrated case Be Lumber & Sawmill
Workers’ Union, Local 2537 and KVP Co. Ltd. (1965), 16 L.A.C. 73 (Robinson) and the
more recent cases Be British Columbia Bailwav and C.U.T.E. Local 6 (Kenneth Piclmell
grievance) (1982), 8 L.A.C. (3d) 233 (Hope) and Be County of Smoky Lake No. 13 and
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C.U.P.E.. Local 1461 (19891, 7 L.A.C. (4th) 353 (power). The point to be drawn from
these cases is that the Employer cannot derogate from the function of this Board to
review for just cause thebasis for discipline and the penalty imposed by the unilateral
imposition of a codified approach to progressive discipline. Such a system remains as a
relevant factor to be considered in all the circumstances of the case: As noted in the
British Columbia Railway case at p.238 the long existence of the system, the knowledge
of employees of its application, and its apparent long acceptance by the Union are factors
tobe weighed in assessing just cause for discipline or dismissal.
We fmd that we are constrained by the reasons of the majority of the Court of
Appeal to find that the improper contacts with ex-residents C.B. and D.C., and the
breach of the reporting requirements in respect to these contacts as set forth in
allegations #2,4,5, and 7 of the discharge letter are to be considered together as a single
fast infraction since they were discovered in the course of the Ministry’s investigation
following the grievor’s suspension and were the subject of the same grievance.
The relevant standard in the Ministry’s guidelines is #6:
SMNDARDS D-Y GUlDELINEX
Amephbl.3 Unalaxptable First second Repestea
Employee Conduct condlict such a8 l?&xtion ll&xtion Illfmctions
6. Compliance with Violation of policies, Up to three days’ Up to five days’
policies, statutes and statutory and regulatory suspension suspension or
regulatory requirements: work dismissal
requirements. ,related fraud; dishonesty.
(employees must be deception: falsification of
informed of their records, reports,
obligations) documents, etc.
18
On behalf of the grievor it was argued that the Ministry relied apon the guidelines
, .~
to establish cause for disciphne and concomitantly the Employer is limited by the term
of its code to impose no more than the specified penalty for the misconduct established.
Mr. Wells points out that the grievor’s misconduct as found by the Board, including his
omission to disclose contacts with C.B. and D.C. to supervision, is~no more culpable and
probably less culpable than the specified list of work-related fraud, dishonesty, deception,
falsification of records, reports and documents. On behalf of the grievor, Mr. Wells points
out that’the grievor had seven years’ seniority and a good work record with no .prior
incidents of discipline. Furthermore, the grievor’s misconduct was found by the.Board
to be a misguided effort to assist ex-residents C.B. and D.C. and the Board did not
uphold the allegations of sexual misconduct which had underpinned the Employer’s
penalty of discharge. Furthermore, although the grievor may have exhibited’poor
judgement in his conduct with C.B. and D.C., the Ministry also placed the grievor in a
situation where he was vulnerable to the allegation of sexual misconduct by C.B. when
he was assigned to supervise her 13 in isolation, contrary to usual practices.
On behalf of the Ministry, Mr. Mason argued that it was open to the Board to rely
upon the reasoning of Madame Justice Weiler, J&in finding that the guidelines could
be interpreted to find a second infraction where the ‘first infraction was not subject to
prior discipline by reason of the grievor’s concealment of such misconduct. In any event,
Mr. Mason argued that the Board could assess just cause and weigh the application of
the guidelines. He contended that it was still open to the Board to uphold the penalty
of discharge, or to reinstate the grievor subject to a lengthy suspension without pay. In
support of his submissions, Mr. Mason referred ‘us to the following cases: G.S.B.
19
/... :
#l&7/87 Re O.P.S.E.U. (Marian Schaefer) and The Crown in Right of Ontario (‘Ministry
of Correctional Services) November 29, 1988, unreported (Wright); G.S.B. #3100/90,
310#0 Re O.P.S.E.U. (Bavlis) and The Crown in Right of Ontario (Ministry of
Correctional Services April 14, 1992, unreported (Simmons); G.S.B. #27-29/84,35-37/84
Re O.P.S.E.U. (Garv Goean and Corv Sinclair) and The Crown in Right of Ontai-io
(Ministrv of Correctional Services) August 29,1984, unreported (Draper); G.S.B. #467/82
Re ‘O.P.S.E.U. (James Heath) and The Crown in Right of Ontario (Ministrv of Heith)
August 17, 1983, unreported (Draper); G.S.B: #138&91 Re O.P.S.E.U. (Smith) and The
Crown in Right of Ontario (Ministry of Transnortation) June 8, 1992, unreported
(Wattem); G.S.B. #40/87,23$51,~264/81 Re Vianeuxand The Crown in Right of Ontario
(L.C.B.0.) November 18, 1981, unreported Draper); and G.S.B. #1128/90, lSls/sl &
O.P.S.E.U. (Kanevra) and The Crown in Right of Ontario CMinistrv of Correctional
Services) December 16, 1992, unreported (verity).
We have reviewed carefully the submissions of counsel and the cases cited to ‘us
in reaching our conclusions. The cases turn on their facts and none considered the
application of the particular disciplinary guidelines at issue here. We begin by noting
that a Correctional Officer at a facility such as the York Observation and Detention
Home must conduct himself or herself in a manner which is responsible, disciplined,
manifests integrity, and demonstrates respect for the individuals under his or...her
supervision and for the reputation and security of the facility. These expectations have
been made known in the staff manual’s code of Values, Behaviour and Conduct and were
known to the grievor. His primary function is custodial, but he was expected to treat
residents with personal concern. The evidence paints a picture of the resident population
20
as significantly disturbed. In the case of C.B., the evidence indicated that her actions
were characterized by anger, malice, and resentment of authority figures. In the case
of D.C., the evidence indicated that. she had a propensity to lie and to sexualize her
relationshiswith men as’ a means to manipulate the relationship to her own ends. The
evidence portrayed the behaviour and emotional dynamics of residents D.C. and C.B. as
more typical than not of the resident population. In this context, it is of the utmost
importance that a ‘male, authority figure, such as the grievor in his classification as a
correctional officer, conduct himself in a manner which is above reproach and which
enables the facility to protect and defend its own reputation and security and that of its
staff and the residents. Correctional officers ~may be required to supervise residents 19
in isolation and may be contacted by residents or ex-residents while off-duty. As such,
it is vital that persons in such a position be worthy of the trust reposed in them to
conduct themselves in a manner which is responsible, professional, and which maintains
the security and well-being of the residents as well’as the reputation of the facility.
The considerable potential for contact with ex-residents to be so harmful isreadily
evidenced by the,nature of the allegations which arose against the grievor. The case was
complicated by problems encountered with the grievor‘s credibility., The grievor did not
admit to his contact with C.B. at his apartment until the arbitration proceeding and even
in the course of the hearing, his evidence was defensive and vacillated concerning the
requirement to report contacts. We find that the grievor attempted to mislead the Board
concerning whether he knew that he should have reported the contacts with D.C. at his
apartment. We were left withy doubts concerning the credibility of his version of events
at his apartment during the visits by D.C. The discomfiture that the grievor displayed
21
when questioned about these visits revealed to us that the grievor had developed an
emotional tie to D.C.; he certainly did not take action to rebuff the affection she
expressed in her letter of July.~3lst, and her visits to his apartment occurred just over
a month later. Allegations- of sexual harassment often arise out of relationships where
there is an imbalance of power between then individuals involved. The risk of such
allegations is great where the situation entails a relationship between a male authority
figure with a vulnerable, manipulative and disturbed female minor who sexualizes her
contacts with men. We found that the allegations of sexual misconduct were not
established on a balance of probabilities. However, for the reasons outlined, we conclude
that it was a grave error in judgement for the grievor to foster contact with D.C. over a
four year period - contact which culminated in two unescorted visits to his apartment at
night. The invitation extended to C.B. to contact him was less serious in that there did
not seem to be a prolonged course of contacts with C.B. as with D.C.
Had the Employer grounded its discipline of the grievor only upon allegations #2,
4, 5 and 7, we have no doubt that the guidelines would have constrained the,Employer
from imposing the penalty of’discharge since guideline #lO would not have applied. Our
jurisdiction to review for just cause allows us to weigh the guidelines as a factor in
assessing the appropriateness of the penalty. As set out in the m case, we must be
satisfied that the guideline is reasonable. A system of progressive discipline ought not
to preclude a disciplinary response which is sensitive to the circnmstances of the
particular case and proportionate to the misconduct. We certainly conclude,that absent
the establishment of the allegations of sexual misconduct with C.B. and D.C., and given
that the breach of the procedures regarding contacts with ex-residents C.B. and D.C. are
22
to be viewed as .a single first infraction, the penalty of discharge is excessive. However,
we also find that a maximum penalty of a three day suspension is not reasonable, in that
it is not commensurate with gravity of the misconduct established on the facts of this
case. In further explanation, we find the following facts to warrant a nenalty more
severe than a three day suspension for a fist infraction:
1)
2)
3)
4)
5)
The grievor invited the contacts by C.B. and D.C. by
divulging his, unlisted telephone number, giving them his
address, and suggesting to them that they could contact him.
The grievor concealed the visit by C.B. to his apartment,
although he knew that such a contact ought to be reported to . ., supervision.
The contacts with D.C. continued over a period of four years
through correspondence and there were romantic overtones in
the correspondence, in particular the letter of July 31st, that
the grievor did not firmly rebuff. Indeed, the visits by DC.
to his apartment occurred just over a month later.
The contacts with D.C. were not reported in their entirety to
supervision, even when the grievor knew that information
about the nature of the grievor’s contacts with D.C. was being
sought.
The contacts with DC. and C.B. occurred in the privacy of
the grievor’s apartment with no other people present to
witness what occurred, rather than in a more public, less
intimate surrounding. This setting was foreseeable since the
grievor had given his address to the ex-residents, yet the
grievor should have known that such a’setting could place
him in jeopardy for allegations of sexual misconduct to arise.
Taken as a whole, the grievor can be considered to have engaged in a course of
conduct, particularly in respect to D.C., that reveals a serious error of judgement on the
part of the grievor which jeonardized his o-m .reputation and that of the facility.
Correctional officers in a setting such as this must adhere to an exemplary standard of
23
i
conduct having regard to the emotional and behavioural disprders of the residents whom
he is required to supervise, the antipathy that such residents can be expected to
demonstrate against his authority, and the working conditions which require him to
supervise residents occasionally in isolation under minimal supervision.
The grievor had seven years’ seniority and a clear disciplinary record at the time
of discharge. His years of experience as a Correctional OfEcer in this setting should have \
contributed to his understanding of the treasons why a policy concerning contacts with
residents and ex-residents, among other issues, needs to be in place. Indeed, his
‘-- comment to Superintendent Renwick at the second disciplinary meeting on June 81987
mentioned at p.31 of the award, suggests that he was aware of the risks that wntact
.~ with residents can bring to the reputation and security of staff. His participation in the
&icy review session in the FaII of 1985 shouId have contributed to his understanding.
No doubt his understanding contributed to his discomfiture on the witness stand when
he was questioned about reporting requirements pertaining to contact+ It is our view
that a penalty more severe than a three ‘day suspension is just and reasonable in all the
circumstances. We order that the following penalty be substituted:
!) The grievor is to be suspended for a period of four months without
pay, but without loss of seniority, from the date of his discharge.
2) Subject to the four month suspension, the grievor is to be reinstated
to his position as a Correctional Officer.
3) Prior to his reinstatement, the grievor is to attend at a counselling
session concerning the policies on. Staff Values, Behaviour and
Conduct.
24
I I
. (-
4) After his suspension and upon his reinstatement, the grievor is to
receive comnensation for his loss of salary and benefits to the date
of reinstatement, subject to a duty to mitigate his losses. The
quantum of compensation is remitted back to the parties to
determine. In the event they are unable to resolve the issue of
quantum, we remain seised of jurisdiction to resolve the matter.
5) Upon reinstatement, the grievor is not to be assigned on 12
su+rvision of a female resident for a period of done year &om the
date of reinstatement.
In the result, the grievance is allowed in part. At the request of the parties, we
remain seised of.jurisdiction to determine any problem in the implementation of this
award which the ‘parties are unable to resolve.
Dated at Kingston, Ontario, on this 14 K day of January, 1994.
Jane E. Emrich \ Vice-Chairperson
‘i
“I wncur - addendum appended”
Janet Solberg Member
“I dissent - dissent appended”
Harry Roberts Member
25
Janet Solberg
c/o Stepheri Lewis Associates
6 Montclair Ave.'
- Toronto, Ontario
x4v x.71
488--1883(b)
4g5-4154(-f)
Re: GSB File 129/S?
OPSEU (Neckles) v. MCSS
ADDEh'DUM
This was an extraordinarily difficillt case for all concerned. .At
every. step of the way.
With that in mind, and given the facts qf tlze case and the
sgperior~ courts' rulings, I believe the Chairperson has fashioned
a fair and reasonable and thoughtful decision. One which will . .
enable the parties to work together again and in.a manner beneficiai to the children in their care.
-. -.
,I
.,
:
DISSENT
RE: 1291/87 OPSEU (Neckles) and the Crowu in Right of Ontario
(Ministry of Community & Social Services)
I am'aware that the decisions of the Divisional
the .Court of Appeal' in this case direct the panel
Court and
to view the
L.~~ grievor's conduct.as a single, first offence.
My dissent is based simply and solely on the frequency and
seriousness of 'the breeches of ministry policy and standards of
conduct, committed by the grievor. '..
If this recorded behaviour is not considered sufficient to
warrant discharge, then conversely, in my view, the four month
suspension proposed as an alternative penalty falls short of being
adequate.
Fihirii
H. Roberts, Member