HomeMy WebLinkAbout1987-1847.Schaefer.88-11-29.i, j B ONTARIO CRcJWNEMP‘0”EE.s
GRIEVANCE
SETTLEMENT
BOARD
e EMPLOYCS DE L.4 CO”RONNE DEL’ONTARIO
C$lMMISSION DE
REGLEMENT
DES GRIEFS
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Marion Schaefer) Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services) Employer
Before: M.W. Wright
J.D. McManus
W.A. Lobraico
Vice-Chairperson
Member
Member
For the Grievor;. R. Nelson
Counsel
Gowling & Henderson
Barristers and Solicitors
,:
For the EnDlover: J.F. Benedict
Manager, Staff Relations'& Compensation
Ministry of Correctional Services
Hearinqs: February '29, i980
June 1.5, 19fifi
September i, 198R S~pt~tllb~r 2, i986
DECISION
The Grievor was employed as a Correctional Officer by the Ministry
of Correctional Services. She grieves against her dismissal. The outcome
of this case rests upon its facts. Although we shall not attempt to review
all of the evidence which was placed before us in four days of hearings,
it is nevertheless necessary for an understanding of the case to go into the
evidence in some considerable detail.
The Grievor is presently 29 years of age, she is married and lives
in Goderich. She was first employed by the Ontario Government in June 1982.
After a brief layoff she was hired by the Ministry of Correctional Services
in 1985 to be employed at Bluewater Detention Centre at Goderich, Ontario
(which will hereinafter be referred to as "Bluewater"). Bluewater was built
in 1962. Until the mid 1970s it was used as a psychiatric hospital and sub-
sequently for the treatment of developmentally handicapped persons. In 1985
the facility was converted for use as a place of detention for young offenders
in accordance with the provisions of The Young Offenders Act. Consistent
with the objectives of The Young Offenders Act, youths detained at Bluewater
are described as "residents" and not as "inmates". The residents are over
the age of 12 and under the age of 18 at the time that they are charged and
all residents have been found guilty of some offence under The Criminal Code
of Canada. Bluewater was planned to accommodate 108 residents. Detention
cells are not used at Bluewater; rather, : a dormitory setting is in place.
There are 3 units of 36 beds each. The dorms are unlocked. The~institution
is staffed by Youth Officers on a 24-hour basis. The Grievor was employed
as a Youth Officer at Bluewater.
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The facility at Bluewater has a full range of programs which emphasize
the treatment, academic and residential aspects with a view to establishing
better living patterns on the part of the residents. Youth Officers may
recommend a temporary release program for a young offender based on the
resident's behaviour; the young offender may, on the recomnendation of a Youth
Officer, be released to a home -- his own home or another home -- and he may
get passes on special occasions such as Christmas, Easter or on weekends.
A Youth Officer is assigned to a living or security unit. 14 Youth
Officers are assigned to a unit whose maximum complement, as has already been
stated, consists of 36 residents. An attempt is made to have the Youth Officer
work continuously in the same unit unless there is some operational reason
which necessitates other arrangements. Bluewater is a medium security institu- -"
tion with minimal security standards although it is surrounded by a fence.
The issue which is at stake in this case .is the Employer's claim, as
expressed in the letter of dismissal, that ' . ..your actions render you unable
and unsuited, both professionally and personally, to hold the pivotal role
in the lives of young persons in our care that Youth Officers hold." (Exhibit 2)
It is germane, therefore, to consider carefully the nature of the dutyes of
a Youth Officer, such as the Grievor was, and the role which she was expected
to play in the institution's program. The governing legislation under which
Bluewater and other similar institutions operate is The Young Offenders Act,
S.C. 1980-81-82-83, Ch. 110. Section 3(l) of The Young Offenders Act is a
Declaration of Principle which it is appropriate to quote in part:-
l
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‘I 3. (I) It is hereby recognized and declared
that
(0) while young persons should not in all
instances be held accountable in the same
manner or suffer the same consequences
for their behaviour as adults. young per-
sons who commit offences should nonethe-
less bear responsibility for their contraven-
[ions;
(b) society must, although it has the re-
sponsibility to take reasonable measures to
prevent criminal conduct by young per-
sons, be afforded the necessary protection
from illegal behaviour;
guidance and assistance;. . . I’
(Underlining added) "
Thus, even though the young offender is responsible for his actions
there is a legislative realization that the young offender has not yet reached
a level of maturation and has "special needs" which "require guidance and
assistance".
.
The principal witness for the employer was Carl DeGrandis. Mr. DeGrhndis
has been the Superintendent of Bluewater since its inception in May 1985.
his career in the Ministry of Correctional Services began in 1975 and he has
held senior managerial positions during that time. The Board found his evidence
to be of the highest value. Mr. DeGrandis pointed out that the Ministry is
mandated to present moderating influences to residents in order to enable
them to lead more productive lives and not to continue to offend against
society. The biggest single factor in obtaining such an adjustment is through
the quality and character of the staff members and the role models which they
represent to the residents.
The Ministry has codified the instructions which are to be followed
by its employees. There was filed with us a document entitled "Youth Offenders
Act Operational Policy & Procedures" .(Exhibit 4). I am quoting certain excerpts
from Exhibit 4 because they will impinge on the evidence in this case. Under
the heading of "Correspondence - Mail" the following is provided for:-
!..Mail to and from the young person's solicitor shall not be
examined or read unless there are reasonable and probable grounds
to believe that it contains material that is not privileged
as a solicitor-client communication.
Other mail to and from a young person may be opened by the super-
intendent or designate in the young person's presence and may
be inspected for articles prohibited by the superintendent...
Where the superintendent or designate believes on reasonable
grounds that the contents of the mail may be prejudicial to
the best interests of the recipient, the public safety or the
secunty of the place of detention or custody It may be read
and withheld from the reclplent in whole or in part."
(Underlining added)
.,.
The Ministry has issued a Manual of Standards and Procedures::which
deals in considerable detail with the operational procedures to be followed
at an institution such as Bluewater. (Exhibit 51 Again, it is necessary
to quote certain excerpts from the Manual:-
"In order to ensure that appropriate security and control is
maintained, the Superintendent is responsible for the custody
and control of every inmate admitted to his institution...
REPORTING AND DISCHARGE OF DUTIES
The following paragraphs outline in brief what is expected of
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each member in the performance of duties. The Staff member
shall:
(a) Perform his or her duties in an orderly manner and in
full co-operation with other staff members;
(b) .Be alert, courteous and professional in dealings with
inmates, other staff members, visitors and members of the
public;...
(f) Ensure the security of all inmates under his control,
follow all instructions and procedures in regard to custody,
and take all additional action required to maintain the security
of the institution;...
(h) Upon completing his or her tour of duty the staff member
shall make a written report of any unusual incident occurring
during tnat tour. Any matters apparently requiring immediate
attention shall 6e reported at once to the otficer-in-cnarge....
CONTACT WITH EX-INMATES AND/OR THEIR FAMILIES
In order to ensure that the appropriate personnel involved in
the after-care program of an inmate are kept informed, any staff
member who is contacted by an ex-inmate, a member ofanex-inmate's
faml1~. or a member of the fame ly of an inmate who is currently
serving a sentence, must bring this to the attention of the
appropriate personnel. To do so he should record briefly by
memorandum any telephone call received or other contact of this
type made by the ex-inmate or family member and give this report
to the senior supervisor for the attention of the Superintendent.
No arrangements should be made to meet the former inmate or
member of his family without tne authonzation of the Supenn-
tendent. ihe Suoenntendent will ascertain whether the ex:inmate
mly member'is receiving attention from other rehabilitation
personnel prior to giving such authorization...
In order to prevent staff members from being accused of any
conflict of interest or possible breaches of security, staff
members are not permitted to enter into any personal relatios
not in the line of duty with any inmate without tirst receiving
the written approval of the institutional or Dranch head.
In the case of ex-inmates, their relatives or the relatives
of inmates and their friends, should the staff member engaging
in a personal relationship not in the line of duty, feel that
the relationship could be construed by others as a conflict
of interest or possible breach of security, the staff member
must discuss such situations as soon as they are known to ilim
with the institutional or branch head. The institutional or
branch head'will be the sole arbiter of what constitutes a
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conflict of interest or possible threat to security in the afore-
mentioned relationships, and will advise the staff member in
writing of his approval, or- that the personal relationship is
to be terminated.
Staff not conforming to the above may be subject to disciplinary
action.
PROHIBITIONS
The following paragraphs outline in brief certain prohibitions
placed on staff members while in performance of duties:-
The staff member shall not:
. ..(f) Carry or send written or verbal messages to or from
an inmate except under such circumstances as are necessary in
transacting the business of the institution."
(Underlining added)
In addition, the Ministry has issued Standing Orders
(Exhibit 7) which are not guidelines but are orders binding
upon the Grievor. Certain portions of the Standing Orders are
relevant to this case as set out hereunder.
"Procedure
2.1 During any tour of duty, you are required to
comply with all Standing Orders and any esta-
blished operational procedure of the assigned :
duty area. It is the responsibility of all
staff and employees to familiarize themselves
with any order or directive which has been
issued since they last performed duty at the
institution...
2.3.7 Carry or send written or verbal messages to
or from a resident except under such circum-
stances as are necessary in transacting the
business of the institution...
.ii
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STAFF INVOLVEMENT WITH RESIDENTS,
1. Policy
In order to prevent staff members from being
accused of any conflict of interest or possible
breaches of security, staff members are not
permitted to enter into any personal relation-
ship, not in the line of duty with any resident,
ex-resident, friend or relative without first
receiving the written approval of the Supenn-
tendent.
2. Procedure
2.1 In the case of ex-residents, their
relatives or the relatives, of residents
and their friends, should the staff member
wish to engage in a personal relationship,
not in the line of duty, the staff member
must discuss such situations as soon as
they are known to him with the Supenn-
tendent. Th Superintendent
-arbiter :f what
I1 b h
constitutes'8 confqiite
of interest or possible threat to security
in the aforementioned relationships, and
will advise the staff member in writing
of his approval, or that the personal
relationship is to be terminated.
2.2 In actual implementation of the policy,
staff will submit a written report pro-
viding details of ,the relationship to
the Superintendent sealed in an envelope.
Upon receipt the submitting staff member
will receive a written acknowledgement.
2.3 Should a staff member have any concerns
about the propriety of a personal relatlon-
ship with a resident or ex-resident, the
matter should be discussed with a member
of senior staff.
CRISIS INTERVENTION
1. Policy
Youth Officers must always bear in mind the
possibility of a disturbance suddenly occurring
within a house...
There is little chance at the time of the
incident to make proper plans, therefore, it
should .be part of everyday routine to take
the necessary precautions to minimize the effect
ot such action and report any unusual behaviour.
3. (sic) Preventative Measures
NOTE THE FOLLOWING:
. ..2.6 Care must be taken that Youth Officers do
not aggravate an already doubtful situation
or change a non-violent situation into a violent
one. Is -
SUICIDES
1. Policy
All threats of suicide are to be taken seriously,
to be noted and reported. Suicide attempts
can take the form of hanging, slashing, ingest-
ion of poisonous or noxious substances; electro-
cutions, etc."
(Underlining added)
The foregoing instructions must serve as a backdrop against
which to consider the propriety or otherwise of the Grievor's
conduct and of the Employer's reaction thereto. Throughout
his evidence..Mr. DeGrandis emphasized the importance of a Youth
Officer acting in "a professional manner" and pointed to the*
danger of a Youth Officer exposing himself or herself to black-
mail at the instance of a young offender. He pointed out that
the young offenders have criminal records and are capable of
committing the most serious crimes including, in some cases,
murder, rape and extortion. In a word, they can be dangerous.
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In the case before us the young offender in question, who
will be hereinafter identified as "X", was received at Bluewater
on February 11, 1987. He had a record of criminal convictions
for breaking and entering and had been sentenced to serve 730
days. From February 11, 1987 until March 24, 1987, X was housed
in Huron House, a unit within Bluewater, and between April 11,
1987 and June 29, 1987, he was a resident at Ontario House,
which is also a unit in Bluewater. X is of formidable size
and physical strength. Mr. DeGrandis was familiar with X's
pattern of conduct at Bluewater. Following his usual practice
of meeting personally with incoming residents, Mr. DeGrandis
had personally counselled X when he was admitted into Bluewater.
He described X as "a kid whose body had outgrown his level of
maturation and his emotions". He felt that X's physical size
often got him into difficulties. DeGrandis testified that he
had become concerned about X's behaviour and his attitude.
A pattern had emerged of disruptive behaviour by X including
"muscling other residents" and forcing other residents to do
his bidding. DeGrandis had warned X that if his conduct did
not improve he would be moved to a more secure institution. ;
As a result of X's behaviour during the weekend prior to June
29, 1987, Mr. DeGrandis took steps to have X transferred to
the Elgin-Middlesex Detention Centre at London, Ontario.
The transfer on June 29, 1987 was not a peaceable exercise.
X was placed in a van and was handcuffed. In spite of the fact
that he was handcuffed, X proceeded to cause considerable damage
. : , c
e ’
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to the van to the point where he had to be overcome physically,
his hands handcuffed behind his back; he was also placed in
leg irons and delivered in that manner to the Elgin-Middlesex
Detention Centre (which will hereafter be referred to as
"Elgin-Middlesex".) So far, the Grievor had not entered the
picture but as a result of information which came to Mr.
DeGrandis' attention the following day, the June 29th incident
took on special significance for him. He stated in his evidence
that he received information on June 30th to the effect that
the "catalyst" for X's behaviour on June 29th was that the move
out of Bluewater had disrupted "a personal and intimate relation-
ship" which he had with a female staff member, namely the Grievor.
The next morning Mr. DeGrandis made certain inquiries and, as
a result, he called the Superintendent of Elgin-Middlesex, Alan
Dunbar. DeGrandis told Dunbar, in confidence, the information
which had come to his attention and asked him to monitor any
contact between X and the Grievor. In doing so, both DeGrandis
and Dunbar relied on provisions of the Correctional Services
Act which allow monitoring, including interception of mail;in
-appropriate circumstances.
I About an hour later, Dunbar called DeGrandis and said that
the mail log at Elgin-Middlesex showed that the night before
a letter had been mailed from X to the Grievor; the letter had
left the institution before DeGrandis and Dunbar had talked.
DeGrandis thereupon asked Dunbar to continue to monitor. On
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either the same day or the following day, Dunbar called DeGrandis
and read to him a report prepared by Youth Officer Stewart at Elgin-
Middlesex concerning a conversation which he had had with X. The
next day the report came into DeGrandis' possession. The report
was entered as an exhibit but, although no objection was raised
to the admissibility of the document, the Board,in arriving at its
decision, has not relied on any statements made by X which might
implicate the Grievor. Indeed, Youth Officer Stewart in his report
stated that he assumed that "this Y/O was Just telling me a wild
tale to try to impress me".
On July 2, 1987 X wrote another letter to the Grievor. The
letter was intercepted, opened and brought to DeGrandis' attention.
The contents were extremely disturbing to Mr. DeGrandis. Neverthe-
less, both he and Mr. Dunbar decided to -have the letter mailed on
to the Grievor. The original envelope was retained rogether with
a photocopy of the letter and a new envelope was substituted so
that it was quite impossible for the Grievor to know that the
original envelope and its contents had been intercepted. Counsel
for the Grievor objected strongly to this letter being admitted,
especially since counsel for the Ministry stated that he would not
be calling X as a witness. This meant ,that the truthfulness of
X's statements could not be tested through the usual method of cross-
examination. The Board decided unanimously that we would admit
the letter but we made it absolutely clear at the time that we would
accept the letter as evidence only that a letter had been written
by X to the Grievor but we would not take into account any statements
made by X which affected her in any manner. And we did not.
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Mr. DeGrandis decided that monitoring should continue. Thus
far, he had before him only statements by a young offender and,
quite properly, DeGrandis considered such evidence alone to be un-
reliable. He wanted, he said, corroboration from a source other
than from a resident. Such evidence became available several days
later.
On or about July 7, 1987 Dunbar phoned DeGrandis and informed
him that a letter had been received at Elgin-Middlesex which was
addressed to X. This letter will be referred to frequently and
will be described as "Exhibit 14" or "the Exhibit 14 letter".
Dunbar's suspicions were aroused by reason of the fact that although
the back of the envelope stated that the sender lived in Welland, "'
Ontario and had the same surname as X the envelope 'das actually
postmarked in Goderich. The envelope was opened and Dunbar found
in the envelope a letter addressed to X which was signed "Love Jo
OXOX" and there was also enclosed a picture of a female. The envelope
and its contents were delivered to DeGrandis the following morning.
The picture turned out to be that of the Grievor. DeGrandis con-
sidered that he now ,had the corroboration which he required an6'
this was confirmed, in his view, by tne unusual nature of the letter
which, I regret, must be reproduced herein:-
"July 3, 87
Dear (First name of X)
Hi Sunshine! I miss you. Hope things are still going
well for you, and that you are still smilin *G (sic).
Things just aren't the same without you.
I miss your
,i.. .
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smile, your company and much, much more. Here's the picture
you wanted of your friend. 1 hope you like it. I'm going
partying this weekend, I'll have a few for you. I said
hi to Donut for you, I made a special trip to his house
to do so. I'll send his address later OK. I'll have
to keep this letter short, as work called me and I have
to go in for awhile. Oh well, free money for my vises
(sic).
Take care of yourself and write soon. We all miss you
and send our love, especially me.
Bye for now, and see you in my dreams.
Love Jo. OXOX
P.S. Don't get excited but my monthly visitor hasn't
arrived yet. Love you. oxoxoxoxox"
DeGrandis took the matter up with his Regional Manager and
they decided that an investigation was warranted. Inspector McMaster
was assigned to investigate. Mr:, DeGrandis suspended.the Grievor
without pay from July 16 until July 22. On July 16 Inspector
McMaster obtained a written statement from the Grievor. A meeting
was held on July 20, 1987 which was attended by the Grievor, her
Union representative, Mr. DeGrandis and several of his junior
officials. DeGrandis related to us his position on the case which
necessarily focused, to a large extent, on the Grievor's Exhibit
14 letter. DeGrandis found the Grievor ,to be somewhat less than“
forthright. At first she denied that she had written the Exhibit
14 letter but later she admitted it to Inspector McMaster.
DeGrandis found the letter to be "highly suggestive" and the conduct
of the Grievor "contrary to the role model expectation of a Youth
Officer". It had now become known that several phone calls had
been made by X to the Grievor; when questioned about them the
Grievor characterized the calls as "normal". DeGrandis asked why
t a *
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the Grievor had not disclosed receiving phone calls from X and
the Grievor's reply was that she "had no opportunity to do so"
even though she had been on duty after receiving the first of the
phone calls. DeGrandis observed that the envelope containing the
Exhibit 14 letter had been sent under what he called "an alias"
since it showed the sender to have the same surname as X and as
living in Welland when in fact the letter was sent by the Grievor
from Goderich. DeGrandis testified that the Grievor had said that
there was "nothing wrong with what she had done". OeGrandis said
that the Grievor had stated that she wrote the letter because "X
was down and I thought he might be suicidal and I wanted to cheer
him up". DeGrandis asked why she had not, consistent with Standing
Orders, reported her suspicions concerning suicide so that X could "
be observed; the Grievor's answer was that she thought someone
else in the institution would notice the same symptoms. DeGrandis
pointed out that the aspect of suicide was extremely important
and that failure to communicate her suspicions or opinion concerning
X's motivation was in breach of established procedures. DeGrandis
wanted to know why such personal and intimate cormnents were made
in the letter, to which the Grievor replied that she was a "caring,
person" who was only using the Exhibit 14 letter to calm X down.
OeGrandis questioned the Grievor concerning letters written
by X to her home. At Bluewater the Employer's records showed the
Grievor's address to be a street number in Goderich but the letters
written by X to the Grievor were addressed to a post office box
in Goderich and DeGrandis wanted to know how X .had received that
information; the Grievor replied that he must have gotten the
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address from some magazines that the Grievor had brought to work.
OeGrandis pointed out that X had listed a "Marion Beattie" as a
possible visitor to Maplehurst Detention Centre to which he had
been transferred and OeGrandis observed that, according to personnel
records, the Grievor's maiden name was "Beattie". OeGrandis wanted
to know how X had learned the Grievor's maiden name; the Grievor
suggested that X must have seen an old identification card with
her picture and her maiden name on it. She related that in banter
with X and other residents, she and another female officer had
shown old identification cards and that her maiden name and picture
had been on the 1.0. card.
Finally, OeGrandis asked the Grievor about the post-script
to the Exhibit 14 letter which reads:-
"P.S. Don't get excited but my monthly visitor hasn't
arrived yet. Love you. oxoxoxoxox"
OeGrandis asked why she would be writing to a young offender con-
cerning what must have been her menstrual cycle and he stated that
he was chagrined to hear the Grievor reply that "she was not
,"
uncomfortable" discussing this matter with a young offender.
Faced with the above evidence, Mr. OeGrandis decided to dismiss
the Grievor. The letter of dismissal dated July 23, 1987 is
reproduced here in its entirety because it summarizes the Employer's
case against the Grievor. (In order to preserve the identity of
the young offender his name is deleted from the letter and he is
referred to as X.1
., . ,
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"PRIVATE & CONFIDENTIAL
July 23, 1987
Mrs. Marion Schaefer
43 Bruce Street, E.
GODERICH, Ontario
N7A lS7
Dear Mrs. Schaefer:
Re: My Letter of July 15, 1987
Meeting in my Office July 20, 1987
On July 15, 1987, as noted above, I wrote to you
suspending you without pay pending the outcome of
the ongoing investigation and the meeting noted above.
On July 20, 1987, you attended in the presence of
your representative, Mr. Vic Cooper, during which
you were afforded an opportunity to present your
account of the matter in question, to wit: involvement
in an inappropriate relationship and conduct with
a resident (X1. The investigation also led to
allegations of failure to adhere to Standing Orders
in the establishment of such a relationship and the
disclosure of same. In addition, the investigation
revealed the existence of a letter toX received at
another Institution sent by you under an alias.
This letter, clearly one of a personal and intimate
nature, reveals an illicit relationship with X.
Moreover and equally problematic it reveals an
employee who will go to great lengths to conceal
such a relationship in a covert and deliberate manner.
The meeting, in my judgement; further reveals you
to be unable or unwilling to be as forthright and
candid as required by the information at hand, except
in the.- sole case of the letter you wrote, using an
alias. Even then your initial stance was to deny
you wrote the letter until confronted with our deter-
mination to use whatever forensic means available
to verify the true author of the letter and/or advised
to do so by your representative. Some- of your claims
and statements, especially in regard to your failure
to disclose telephone and mail contact with X, insults
the intelligence of whomever you expect to give
credance to your position. Further, it reveals an
employee who does not appreciate or dismisses out
of hand, the need to have an employee/employer
relationship based on honesty and trust. I find
your actions and attitude to be devoid of any such
appreciation.
In concluding my thoughts on your relationship with
X, I believe it open to any reasonable viewer of
’ c ” .
a 0
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the material at hand that an intimate and personal
relationship was entered into by you with X and
further I believe it open to a conclusion that you
fostered such a relationship.
The young people in our care come to us full of con-
fusion regarding their lifestyle, their life
experiences, life role models, relationships between
the sexes, etc. It is our job to present a role
model that leads them in an honest way towards the
resolution of that confusion, and not add to it.
Your explanation of your interest in entering such
a relationship, if believable and I find it not to
be, shows total lack of understanding what long range
damage can be caused by such unethical methods.
As the person in a position of authority (Power
Position), YOU must carry the buraen for the
establishing, maintenance,
illicit relationship.
and fostering of the
I therefore conclude that your actions render you
unable and unsuited, both professionally and per-
sonally, to hold the pivotal role in the lives of
young persons in our care that Youth Officers hold.
Having so concluded and using my delegated authority
under Section 22(3) of the Public Service Act, I
hereby dismiss you for cause from the employ of the
Ministry of Correctional Services. This dismissal
is effective immediately.
"Signed"
Carl OeGrandis
Superintendent
COG:fp
cc: Mr. 0. Spencer, Regional Manager
Mr. 0. Bolton, Regional Personnel Administrator
Mr. R. Dickson, Deputy Superintendent
Mr. J. Featherstone, Program Co-ordinator
Personnel File"
Mr. OeGrandis stated that he was greatly upset by the Grievor's
misconduct which he considered to be totally in conflict with the
objectives of The Young Offenders Act. He stated that a Youth
Officer is a person who has almost the last chance to moderate
behaviour patterns of young teenagers and to undo some negative
role models experienced
Officer whose personal
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by young offenders
conduct reflects
is a role model which will help a young offender and is of the'
greatest importance in furthering the objectives of The Young
Offenders Act. Referring to the Grievor's conduct, DeGrandis
stated: "This is not the role model I want for anyone under my
care to experience. I am responsible for those young people".
He stated that the primary purpose of The Young Offenders Act is
to remove young teenagers from negative influences whereas the
Grievor's influence was anything but constructive.
The foregoing is the substance of the Employer's case. Other
witnesses were called such as Inspector McMaster, Youth Officer
Stewart, Alan Ounbar and another Youth Officer but their evidence
was primarily to corroborate the evidence of Mr. OeGrandis and
to fill in any gaps in presenting the case which was articulated
in considerable detail by Mr. OeGrandis.
The Grievor began her evidence by stating that after she was
dismissed by Mr. DeGrandis she applied to the Goderich Police
Department for the position of Dispatcher. She was asked to submit
a reference and she did so; in fact, she submitted the name of
Mr. OeGrandis as a reference. Thus, it was being .pointed out that
Mr. OeGrandis who had dismissed her must have spoken favourably
about her as regards the Dispatcher's job. More will be said below
about this aspect of the case.
in the past. 'A Youth
constructive attitudes
The Grievor told us about her educational background. She
received her Grade XII diploma. Subsequently, she took a 2-year
course at a community college dealing with. counselling persons
afflicted with mental retardation with a view to enabling them
to cope with their behavioural problems and improving their life
skills. She graduated from community college in December 1982
and began working with mentally handicapped adults at Bluewater.
When the unit was closed at Bluewater she was transferred to work
as a counsellor with mentally handicapped persons at Oxford Regional
Centre at Woodstock. When the Youth Offenders institution was
opened at Bluewater in 1985 she was transferred back. She took
training at Bluewater and, she testified, much emphasis was given
to having Youth Officers develop counselling relationships with
youth offenders. When Bluewater was opened as a Youth Offender
institution the Grievor was assigned to the Program Centre which
was the control module for the facility. The following Spring
she was transferred to Ontario House which is a unit within
Bluewater and she was employed there from the Spring of 1986 until
her dismissal in July 1987.
X came into Ontario House in April of 1987. The Grievor said
he was "loud, boisterous, hyper and emotional". He needed a lot
of staff supervision and he had the ability to upset the Unit.
The Grievor agreed with Mr. OeGrandis' assessment of X as being
one whose body size enabled him to intimidate other residents.
X left Ontario House at the end of June 1987 and the Grievor has
not seen him since then. The Grievor denies having had any sexual
- 20 -
relationship with Xor that she ever spent a weekend with him as
seemed to be implied by the Employer. She flatly denied having
had any sexual contact with X.
The Grievor testified that as a, result of her counselling
efforts X seemed comfortable in discussing his problems with her.
He seemed to consider her as a big sister and she was convinced
that he trusted her. X had told the Grievor about his troubled
life and the matters which he found upsetting. His family life
had been disrupted when is mother deserted the family home. He
was very proud of his ethnic background. The Grievor testified
that their relationship was proper at all times. She listened
sympathetically to him and encouraged him to talk about his past
by relating to him instances about her own experiences and how
she dealt with various problems which had confronted her.
The Grievor testified that X had learned inadvertently 'that
she was pregnant. She related that one day in June 1987 the Grievor
was talking privately to Erica Moody, a Correctional Officer-2
at Bluewater. In the course of their conversation the Grievorcr
told Moody that she was pregnant but that she was not too happy
at the prospect of having a child at that time since she was having
marital problems with her husband. After their conversation ended
and Erica Moody left, X approached the Grievor saying "That's great
if you're pregnant". Apparently, she testified, X had overheard
her conversation with Erica Moody. In cross-examination, the
- 21 -
Grievor said that she did not remember whether the conversation
with Erica irloody was carried on in a "normal" or "hushed" tone
of voice; Moody said the conversation was in a "below normal" tone
of voice. At any rate, the Grievor testified that she did not
volunteer the information to X that she was pregnant and that the
foregoing incident represents the only explanation as to how X
had learned about the Grievor's pregnancy.
On July 1, 1987, a couple of days after X had been transferred
from Bluewater to Elgin-Middlesex, the Grievor testified that she
received a phone call from X. She said that at that particular
time her husband was working on a class reunion and that people
were calling in from different places in connection with the .:
arrangements for the class reunion and that a number of collect
calls were received. She says that when she heard that therewas
a call from a person whose first name only was given she assumed
that the call was from a man on the west coast who had the same
first name and. who was connected with the arrangements for the
class reunion so she accepted the collect call. X told her that
he was upset about being transferred from Bluewater and he wanted.
to know whether the Grievor had anything to do with the transfer.
The Grievor told him that she had. nothing to do with his being
transferred nor did she know why-he had been transferred. X wanted
to know how he could get back to Bluewater and the Grievor told
X to write to the Superintendent, Mr. OeGrandis. The Grievor said
that X was very upset saying that he was unable to "handle the
bucket", meaning the cells. The Grievor testified that X told
- 22 -
her he felt like "killing himself". The Grievor said she did not
think X was capable of that and that she talked to him in a calm
manner. She said her husband was at home when she talked to X.
The Grievor wrote the Exhibit 14 letter to X. She was upset
by his call and wanted to calm him down. She knew that, X trusted
her and that by writing him she might help to introduce some calm-
ness into his attitude.
Counsel for the Employer took sharp issue with the Grievor's
evidence. The Grievor admitted that certain youth offenders are
capable of being "violent and dangerous" committing crimes as
serious as murder, rape and extortion. The Grievor admitted that
X had, in the past, threatened to "get" staff members, that he
had "verbally assaulted" other residents and staff members and
that he had the potential for violence. The Employer's counsel
pointed out that the Goderich telephone directory showed the
Grievor's address according to her street address but X had written
to the Grievor at a postal box address, namely, P.0; Box 243 at
Goderich, Ontario. Counsel wanted to know, therefore, how X had,-
learned about the postal box address. The Grievor replied that
she did not use the postal box for ordinary mail but mainly for
magazines. Also, a postal clerk who knows her sometimes put her
mail into P.O. Box 243. On occasion she brought magazines into
work with mailing labels attached showing P.O. Box 243 and she
surmised that X had gotten her address from one of those mailing
labels.
- 23 -
Counsel for the Employer noted that in the Grievor's statement
to Inspector McMaster she had described X as "...a very emotional
and hyper individual who myself and other staff kept a close watch
on and counselled regularly. He had the ability to be loud and
boisterous and could easily upset the Unit as a whole;.." Why
then, asked the Employer's counsel, had the Grievor not reported
the fact that X had talked about "killing" himself" especially
since she was required to do so under the Manual of Standards and
Procedures as well as under the Standing Orders at Bluewater.
The Grievor's reply was that she did not think X's statement about
suicide was to be taken seriously. At any rate, she certainly
did not report the incident which, she admitted, was a serious
breach of instructions.
How, counsel for the Employer asked, had X obtained her phone
number to which the Grievor replied "out of the phone book". When
counsel pointed out that the telephone listing in the phone book
was in the name of the Grievor's husband she replied that she might
have mentioned tier husband's name to X in the course of a conver-
,'
sation.
The contents of the. Exhibit 14 letter came in for close
scrutiny. Counsel for the Employer put a number of questions to
the Grievor which were answered as follows:-
i :
- 24 -
- What is the meaning of "Sunshine"?;
the answer, was that that was the
nickname for X's father and she
thought she would use the same
expression in addressing X.
- Why did the Grievor write "I miss
you"?; the answer: It was just
a flippant manner of speaking which
was often used by Youth Officers
when counselling.
- Why did the Grievor say "Hope things
are still going well with you" when,
according to her own evidence, X
had been so upset when they talked
two days earlier?; the answer was
that the Grievor had meant to cheer
him up and to calm him down.
- Why had the Grievor said "Things
just aren't the same without you"?
the answer -- a lot of the residents
are missing him.
- What did the Grievor mean when she
said "I miss your smile, your company
- 25 -
and much, much more"? Why had she
enclosed a picture of herself saying
"Here's the picture you wanted of
your friend"? No meaningful answers
were given to these questions.
- What did the Grievor mean when she
said "We all miss you and send our
love, especially me"? the answer:
she referred to the residents in
the Unit.
- Why had the Grievor said "Bye for
now, and see you in my dreams"?
it was meant only as an informal
manner 'of speaking which she often
used in closing letters and was
not to be taken seriously.
- Why did the Grievor conclude her
letter with the words "Love Jo.
OXOX"? Were "OXOX" not a euphemism
for "love and kisses"? the Grievor
admitted that it was but it was
only her way of ending a letter
and was not meant in any improper
manner.
- 26 -
- The postscript came in for especially
sharp questioning. The Grievor
admitted that the "monthly visitor"
referred to her menstrual cycle
and since X had learned that she
was pregnant and it would make him
happy for her to tell him she was
pregnant, "So why not say it?'!
The Grievor concluded her evidence by asserting
I
that part of
her training was to "care" for people. It was as part of expressing
her care and concern for X that she wrote Exhibit 14.
The evidence in reply by the Employer related primarily to
the Dispatcher's job which the Grievor had obtained with the
Goderich Police Department. Mr. DeGrandis testified that around
October or November 1987 he got a call from the Chief of Police
in Goderich. The Chief asked for DeGrandis' opinion concerning
the Grievor. DeGrandis stated that the query by the Chief of Police
placed him in a difficult position. DeGrandis knew that he could
not and would not talk to the Chief of Police about the reasons
for the Grievor being dismissed but at the same time he knew that
the Grievor needed a job. He did not want to place any unnecessary
impediments in her way so he asked the Chief what the nature of
her employment would be with the Goderich Police Department. If
the response by the Chief of Police had required DeGrandis to reveal
the evidence in this case concerning the Grievor he would not have
- -27 -
done so but would have declined comment. When, however, the Chief
of Police described the job as being a Dispatcher giving
instructions on air DeGrandis knew that the Grievor was capable
of performing that job. She had acquired experience of this kind
while working at the Program Centre at Bluewater and she had the
ability to do so. He saw no reason, therefore, why he should not
recommend the Grievor for that job. He stated that the Chief of
Police did not ask him any direct question concerning his personal
assessment of the Grievor and if he had he would not have given
it. DeGrandis stated that he was upset at the time for having
been put in that position, particularly in a small town like
Goderich. After talking to the Chief of Police DeGrandis called
the local representative of OPSEU and told him about the discomfort
he had experienced in dealing with 'the Chief of Police.
The task of this Board is to decide whether or not the Employer
has discharged the onus of establishing that the Grievor was dis-
missed for just cause. There cannot be any doubt, we regret to
say, about upholding the disciplinary action imposed by the Employer.
The facts speak for themselves. We consider that DeGrandis
was completeTy justified in reaching the conclusions that he did
and we. agree with his conclusions as they are so clearly set out
in the dismissal letter of July 23, 1987 which was reproduced above.
We do not have to determine what the exact relationship was between
the Grievor and X but, whatever it was, we regard it as being most
improper insofar as the Grievor is concerned. Mr. DeGrandis was
- 28 -
entitled.'to expect that the Grievor would project the role model
of one who is attempting to demonstrate a wholesome lifestyle for
a youth offender, in this case X. The most damning evidence is,
of course, the Exhibit 14 letter. It is replete with sexual
connotations culminating with the postscript which makes it
difficult not to conjure up thoughts of illicit.sex whether real
or imaginary.
The letter is susceptible, on the evidence before us, of two
conflicting 'theories. The first is that the letter was highly
improper representing an intimate and personal letter .written by
the Grievor to X. The second is that the letter was written by
the Grievor only to cheer X up' and to becalm him in his state of
excitement or depression. The Grievor says that the first theory
is unsupported by the evidence. If such is the case, why then
did the Grievor attempt to disguise her identity as the sender
of the letter by using X's surname and a false address on the back
of the envelope? Why did the Grievor at first deny that she had
written the Exhibit 14 letter and then reverse herself when it
must have become apparent to her that she had been found out?'
What kind of letter is that for a 28 year old Youth Officer to
write to a teen-aged youth offender who is known to be potentially
dangerous, using terms of endearment and references to her menstrual
cycle together with her picture enclosed? It would be an exercise
in gullibility to think of the contents of the letter as part of
the Grievor's constructive counselling activities. On the contrary,
.
l 0 - 29 -
we regard it as being consi;stent only with the existence of some
wholly improper kind of relationship which can only harm the best
interests of the youth offender. We found the Grievor's explanations
as to how X learned about her postal box address, her phone number,
her maiden name and about her pregnancy to be quite contrived.
The second theory, advanced by the Grievor, is that the letter
was written only to cheer X up; in other words, to advance the
welfare of X. Does legitimate and meaningful care for X express
itself in the way that the Exhibit 14 letter is framed? If the
Grievor was inspired by objective caring for X why did she not
report his suicide coaanents, as she was required to? Instead,
after hearing his suicidal threats on July 1 the Grievor writes
the letter that she did on July 3. We cannot see that letter and
the circumstances under which it was sent as advancing X's interests
in any sense. If anything, such a letter must have .an even more
unsettling effect on an immature and volatile youth offender. We
regret to say that we have difficulty in accepting the Grievor's
evidence as being credible. The explanations for a number of the
incidents fit too well to be believable, such as the manner in
which X learned about the Grievor's postal box address, or her
phone number or her explanations concerning the Exhibit 14 letter.
As we have said, we find that her defence is too contrived. We
cannot disregard the fact that the Grievor at first denied that
she had written the Exhibit 14 letter.
.
- 30 -
Even in the light of the evidence which was adduced before
us the Grievor was still not persuaded that she had misconducted
herself. Even when she was confronted with the reference in the
letter to her menstrual cycle she still saw "nothing wrong" with
what she had done.
We have come to the conclusion that the Employer was justified
in dismissing the Grievor. It remains then for us to consider
whether the penalty of dismissal is excessive. Section 19(3) of
the Crown Employees Collective Bargaining Act gives the Grievance
Settlement Board the following power:-
"Where the Grievance Settlement Board determines that
a disciplinary penalty or a dismissal of an employee is
excessive, it may substitute such other penalty for the
discipline or dismissal as it considers just and reasonable
in all the circumstances.".
The evidence shows that the Grievor avoided compliance with
instructions which are of basic importance in the setting in which
she was employed. She failed to comply with:-
The Manual of Standards and Procedures, Volume 1
Sec. A-3, Page 1, Item (b) -- to be 'I... professional in dealings
with.inmates..."
Sec. A-3, Item (h) -- to make a writen report of any unusual
incident,.."
Sec. A-6, Page 3 -- concerning contact with ex-inmates and to
report any such contacts to the Superintendent.
- 31 -
Sec. A-6, Page 4 -- not permitted to enter into any personal
relationship not in the line of duty with
an inmate without receiving prior written
approval.
Sec. A-6, Page 5 -- not to carry or send written or verbal
messages to or from an inmate.
Standing Orders
Page 2.3.7 -- not to carry or send written or verbal messages.
Sec. 4, Page 15 -- staff members are not permitted to enter
into any personal relationship.
Page 2.1 -- to bring to the attention of the Superintendent
situations of the kind encountered in this case.
Page 2.3 -- to report "any concerns about the propriety of a
personal relationship with a resident" to a member
of senior staff.
Sec. 5, Page 35 .-- suicide -- "all threats of suicide are to be
taken seriously, to be noted and recorded".
We have concluded that it would be wholly unreasonable to expect
the Employer to impose a lighter form of discipline. Equally, it
would be unreasonable of us to require the Employer to take the
Grievor back into employment in the light of the evidence which
we have heard. The Grievor has demonstrated by her conduct that
- 32 -
she is not suitable to hold the position from which she was dis-
missed.
The Grievance is hereby dismissed.
DATED AT OTTAWA this 29th day of November,1988.
-3 ,
.4%-.--+.::~ .7,~9 I
Maurice W. Wright,'Q.C, Vice-Chairperson
John McManus, Member
.
A& * Ye
William Lobraico, Member