HomeMy WebLinkAbout1993-0087.Mandar.94-03-15. . -c,. ..,
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EMPLOYiSDELA COURONNE . . ONTARIO
CROWN EMPLOYEES DE L’ONTARIO
GRIEVANCE CgMMlSSloN DE
SETTLEMENT -I’- REGLEMENT ,,. BOARD DES GRIEFS
180 DUNOAS STFIEET WEST, SUITE 2100, TOPONTO, ONTARIO. MSG 128
180, RUE D~NDAS OuEST. i3~ftE~u 2100, TORONTO (ONrARIOJ. MSG 128
,
TELEP~~ONE&L~PHONE: (4 1~) 326- 1386
FACSIMILE/T~L$COPIE : (4 16) 326- 1396
87/93
. . IN TEE MATTER OF AN ARBITRATION
‘I Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Beford ,,./ ,I.,
THE GR+ANCE SETTLE ML NT BOARD.
BETUEEN OPFEU (Mandar)
- and -
The Crown in Right of Ontario (Ministry of Correctional Services)
I
Grievor
Em@Oyer
,
BEFORE: H. Waisglass Vice-Chairperson
E. Seymour Member
M. O'Toole. Member
FOR TEE
GRIEVOR
M. Betian. Grievance Officer Ontario Public Service Employees Union
FOR TEE
EMPLOYER
J. Lewis. Counsel Filion, Wake1y f Thorup Barristers & Solicitors
HEARING October 1, 1993
November 8, 1993
January 15, 17, 20, 1994
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-AWARD
Howard D. Mandar's grievance, dated March i6, 1993, claims that his "dismIssal
from employment (by letter dated March 15/93) is unllist, unfair and
unwarranted, and: is detrimental to my continuing career as a public servant".
He asks “to be re-instated to my position of Rec. Officer 2 wlthout loss of
wages and/or credits". [Exhibit #l)
In its Interim Decision dated 25 January 1994 the Board directed the Employer
to relnstate the grievor immediately in his posit&and-stated: "Th& Board's,
reasons and its decisions on the remaining issu e( , particularly thbse related
to compensation, will be presented in the Award to follow".
Mr. Mandar has had a very successftil and promising career in the correctional
services. He is a model officer with an unblemished record of more than ten
years of exemplary service.. He started with the Ministry in August, 1982, at
the Metro West Detention Centre [MWDC] as a casual. He competed successfully
for a full-time Corrections Officer 2 [CO 21 position at the Don Jail,: where
he started work in-October, 1984. A year later, another competition returned
him to-the MWD< as a CO 2 working with adult males. He competed successfully :,
in another competition, a year later, for a position work i
tiffgrlders. .Two yeqrs later a secondment to.work for three
Recreation Department was extended a further three months
,work with the adult males at' MWDC as a floating auxiliary
competition promoted hiti tb a Recreation Officer 2 [RO Z]
Correctional Centre [MCC] in March, 1991.
ng with young 1
months in the
He returned to
CO 2. Another
at Maplehurst
Mandar was dismissed in March, 1993, shortly after the Superintendent at MCC
was informed by the Acting Manager 'of the Brampton Probation and Parole
Office, that she had received an anonymous telephone call asking why Mandar
was still employed by the Ministry after his conviction of sexual assault on a
minor. Immediately prior to his dismissal Mandar was on an eight-week special
assignment to the MWDC Recreation Department; where he worked with adult
males, adult females, and young offenders.
._
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Both the Don Jail and the MWDC; where the grievor had worked previbusly, are
maximum security institutions. MCC is designated as, medium security. It
provides. educational, recreational and other self-improvement programs. The,
maximum sentence of its inmates is two years less a day. Most inmates are not
'locked up during the day; but are relatively free to move about.
Indicative of the grievor's commitment to his career in’ correctional services
are his continuing special efforts to improve his qualifications and prepare
himself for further promotions. When he was promoted to the RO 2 job at MCC he
started working on a job-related ,Diploma Program i .Iy
Recreational Leadership at
Humber College. In the period September-December, 1992 he was a full time
student while working full time at his job. He received an 85% average for the
seven courses he had taken in that semester.
The "Field Practice Appraisal" reports to the Humber College Recreational
Leadership Program completed by his two supervisors at both institutions, MWDC
and MCC, judge Mandar to be at least average or better in all aspects of his
job. Both Appraisals are dated May 5, 1993, some time after his dismissal on‘
March 15, 1993. His MWDC supervisor, Mr. Howie Ferguson, rates him "Exce1,lent"
.on QDependability", on GQuantity of Work", on "Initiative", and on “Attitude";
and as "Above Average" on "Work Habits", describing Mandar as Qpunctual,
dependable efficient & effective". [Exhibit #14] His MCC supervisor, Mr. Tony
Roth, rates him at least average on al1 factors, noting that he Gshows tact
and ,flexibility when dealing’w,ith others", he is "dependable", “requires the
minimum .amount of direction and supervision", and that “his knowledge &
understanding of his role & responsibilities to this Dept. & this institution
continues to grow>'. EExhibit #12] .'
The concluding question on the Appraisal form asks “Would you consider hiring
or recommending this student for employment if the occasion arises?“. Both
supervisors, Ferguson and Roth answered Qyes". { NOTE: Both Appraisal reports
are dated May 5, 1993, several weeks after the grievor was dismissed. Mr. Roth
notes, above his signature: “appraisal completed prior to March 8/1993".)
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The evidence indicates Mandar was respected and trusted by his peers as well
as his supervi.sors. He had very ef.fective cooperative relationships with the :
other employees In the Recreation Department. They encouraged him in his
College Procjram and helped aF.range shift changes for him tb attend classes.
Ther'e is no convincing evidence that Mpndar's conviction, or their knowledge
of his conviction, has in any way diminished the trust and.confidence of his
peers, supervisors, and managers in his professional competence-and
capabilities to.perform the duties and respohsibilities of an RO 2. However,
the.Employer's witnesses did express a strongly- "2 opinion, based on their Y
accumulated experience in corrections, that there exists an “inmate cod&"
which holds sexual ofjences against minors in very IOCJ esteem, and that if
inmatei had knowledge of Mandar's conviction, their respect for tiim.as "a role
model" would diminish and they might therefore act disobediently and even
violently towards him. While the Employer's witnesses expressed concerns that
the Qinmate code" may cause inmates to act improperly and perh,aps.violently'
towards known sexual offenders,.none of the witnesses expressed any,concern
whatsoever that Mandar would do anything improper, or that he personally would.
be a danger or threat to anyone, in the event of his return to his previous
position.
,
After his dismissal, the grievor worked “on andoff" at a paper company and
continued with his Humber College Program. Also, he maintained his,physical
fitness progrdm, working to advance beyond his blue belt in karate. Mandar
continued to work as an unpaid volunteer. instructor in self-defence courses
for children.and.high schoolc students, under the supervision of the “Academy
of Martial Arts". The grievor testified that on the day of his dismissal he
went to see Mr. Cyr, the head of the Academy and reported to.him fully the
facts about his dismissal and his criminal conviction for sexual assault on a
minor. Mandar testified that notwithstanding this report, Mr. Cyr assigned him
that same day to instruct a class of children, which he has done continuously
to the present time.
The grievor has no disciplinary recdrd, r&r a record of previous convlctions.
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-, In addition to the grievor who testified on his own beha,lf, the following
witnesses testified for the Employer:
cl] Loule Oi Palma, Superintendent,. Maplehurst Correctiona Centre; since
September, 1993, Regional Manager, Southern Region;
[Z] J.W. “Jim” Featherstone, Deputy Superintendent, MCC, and since October,
1993, Superintendent of the Stratford Jail;
[3] Tony Roth, Recreation Manager, MCC;
[4] Donna Sverdruu, a.Probation/Parole Officer; at fhe.time of the dismissal,
the Acting Area Manager, Probation and Parole.Sefle, Brcmpton.
[S] Jdhn J. Jackson, a Recreation Officer 2 at MCC.
We now present the chronology.of events leading to Mandar's dismissal.
On or about Friday, March 5, 1993, Donna Sverdrup received an anonymou~s
telephone calI from a man claiming to be a police officer in PeeI,Region.’ He
refused to.give his name, but said he was calling on,behalf of the victjm’s ’
parents, who wanted to know why the Ministry was permitting Mandar, who was on
probation with an officer-in' the Brampton Office, to continue working at
Maplehurst after’his conviction of sexual assault on a minor. The anonymous
,caller told Sverdrup that the parents intended to call the Superintendent at
Maplehurst.
This anonymous call alerted Sverdrup that the victim’s parents were seeking
Mandar's dismissal. PerceiviFg this to be a potential source of unwanted
publicity for the Ministry, Sverdrup responded promptly. She checked the
office records to find Mandar's file. This led her to his probation officer,
Murray Gingrich. She promptly asked him if he was aware of Mandar's continuing
employment at MCC. He informed her that he was, and, furthermore, that he was
a model client who complied fully with probation requirements, and who was at
that time on special assignment to MWDC. He told her also that in consultation
with Keith Walker, the Area Manager [who subsequently retired and was replaced
by Sverdrup on an acting basis], they decided it was unnecessary to inform
Mandar's Employer of his conviction and advised Mandar not to tell anyone.
Sve:-dl,u; ac;\t1;w!23cj;, 3 that ti-.? przbat1on :,ff-L(.e!-? wit!? thcj approval of his
manager, had aut,horlty to make this decision if In his professional judgment
Mandar's continuing employment presented no risk of harm to his employer 01'
others. She acknowledged also that this judgment of Mandar, made by Gingrich,
.the probation- officer, with his supervisor's approval, vas based upon their
thorough and intimate familiarity.with his case which she did not possess.
Sverdrup agreed she.had no reason to question their judgment .and no rea'son to ..
suspect that Mandar was a danger to others. She confirmed that neither
Gingrich nor Walker have been criticized oi, reprimanded in any way for their
decision on Mandar. in her testimony, the only re-
consulting Walker &s his retirement.
p"
on Sverdrup had for not
Also, she did not.c&sult or inform her
superiors until after 'she called Di Palma, the MCC Superintendent.
Nevertheless, later that day, Friday, March 5, 1993, immediately after.
speaking with Gingrich, Sverdrup over-rode the' GingrichlWalker decision by
calling the MCC Superintendent and informing him of the anonymous telephone
call and Mandar's convict-ion. In cross-examination, her explanation for doing
so was that. she saw it as her managerial duty to report all criminal
‘convictions involving Ministry employees, to protect the.Ministry’s interests;
in essence, to safeguard her Employer against the.possibility of public
criticism for employing criminals.
Further, Sverdrup expressed concern for Mandar's safety, fearing he might be
attacked'by inmates if.they learned about his conviction, and. "if there is a
situation where he needed the assistance of other staff,. they wouldn't give it
to him", because of their attitude toward sex offenders.. However, she had no
direct knowledge or first hand work experience with MCC inmates or with
Mandar's work associates. When asked to explain why she had these concerns
she replied: “I have worked for years as a probation and parole officer with
sex offenders and other offenders." c‘I'm aware that sex offenders are placed
in protective.custody because they are not liked by the other inmates." "It
is an opinion of mine from what I know of the system". She confirmed she had
never worked in a jail, and -knows of no actual case of an inmate assaulting
another inmate, a C.0 or an.R.0. betause of a criminal conviction.
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Nevertheless, Sverdrup testified she believes It 1s "a possibl
Inmate might attack Mandar because he is a sexual offend&r. It
lity" that
is her op
'an
inion
that all who'work with criminals share her belief in the ‘Linmate code".
It was very clear from Sverdrup'3 testimony that she had no reason to believe
Mandar is in any way a danger to others, but she feared%the inmbtes may be. a
danger to him. She was concerned for Mandar's safety not only because the
inmates might attack him, but.also because she ke'lieved othe.r staff members
would not come. to his assistance. She believed that fhe attitude of the staff
towards sex offenders are much the same as the at i';tude,of
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inmates. However,
she offered no experiential or other convincinb evidence to .justify her
concerns, only that she believed this to be a common,ly-held opinion.
Sverdrup's opicion that Mandar's continued employment at MCC would be a danger
to himself or others~ is based on no mdre knowledge of Mandar than she could
obtain from a quick look at his file. On this issue, the judgment'of Gingrich
and Walker is based upon a greater knowledge and familiarity.with Mandar
personally. Sverdrup, when questioned on this, could not say whether an
officer convicted of a sex offence was at more or less risk of being assaulted
by inmates thdn an officer who is a black or a gay, or one who strictly .
enforces the rules. She 'had no personal experience with the attitudes and
behaviour pf inmates and officers within a penal institution, and particularly
within Maplehurst.
After she informed Di Palma, later that same Friday afternoon, March Sth,
Sverdrup received a telephone calI from Adam Borgida,lthe regional director,
to whom Di Palma,reports, asking her to obtain the police report on Mandar and
a statement from Gingrich, and to send them to John Main, the regional
manager, together with her own report of the incident. She did so early the
next week. '5'
The police record of Mandar's arrest, dated 18 February 1992, states:
“The vi
the God
ctim in this occurence is an\11 year old female. The accused
father of the victim.
is
"On Saturday, 15 Feb. 92, the accused and the -11 year old female victim were
alone in the accused house. They went upstairs to the- accused bedroom where
the victim changed from her wool sweater into one of the accused's t-shirts.
They lay on the accused bed watching T.V. They took turns giving each other
back rubs. The accused then suggested they lay side by side and give each
other a massage. The accused stroked the victim with his hand over her
buttocks. He then moved his hand up inside her t-shirt and over her breast
(outside her bra). This activity continued for a few minutes. The victim then
pulled away and moved over to a desk. The- accused asked “are you mad at me?"
The victim asked to be taken home. The accused drove her home.
“On Monday 17 Feb. 92, police attended at the 'accused. residence he was
arrested, given his rights and cautioned. He was r 'rned
J(&"
to.22' Division
where he provided a culpatory statement. He was c arged with sexual bssault
and released on an undertaking 'with. conclitions (by a justice of the peace)."
[Exhibit 91
The letter of Mandar's supervising probation officer to Adam'Borgida, regional
manager, dated March 8, 1993;states:
“Mr. Mandar is currently the subject of a three year probation order that
resulted from a September 2,1992 Court appearance.
“He initially reported,to me on September 23,1992 and has subsequently
reported monthly in a very reliable manner. He impressed me as being quite
open about the oircumstanoes around the offense. He advised that he had worked
for the Ministry of Correctional Services at Maplehurst Correctional Centre.
UFollowing the initial interview, I discussed his situation with Mr. K Walker, -
then my Area Manager. At that time, my understanding was that he deemed it
unnecessary to pass any information along to the institution or any other
Ministry official. I recall discussing the fact that the victim was a 12 year
old girl and that Mr. Mandar was working tiith adult male offenders.
“Aside from .requiring the offender to report, the only other probation
conditions are:
‘Not to associate or hold. any communication directly or indirectly with
‘{victim’s name is deleted), save and except in the presence of her
parents or at their invitation' and
‘To attend for counselling as may be required, upon such. schedule as may
be arranged by the Probation Officer.
“To my knowledge, he is complying with all conditions. He has regular contact
with his family doctor, Dr. H.T. Earle, and to this point the need for any
further counselling has not been apparent." [Exhibit 81
After receiving Sverdrup's telephone call on March Sth,'Di Palma, the MCC'
Superintendent, asked to see Mandar and learned he was on secondment ,to IWDC,
9
but due to.return to MCC on March 10th. Di Palmo decided to wa?t.and
Instructed pony Roth, Recreation Manager, to bring Mandar to his office
- Immediately on his return. Early on March 10th Tony Roth escorted Mandar to
Di Palma who, privately in his office, informed Mandar of.the information he
had rece!ved. Mandar confirmed the information, answering all questions fully . . .
and honestly. Di Palma handed Mandar two letters, both dated March'9, 1993.
One letter [Exhibit 63 suspended him for three days [March 10, 11 and l2-with
,. pay pending a review of the allegations made'against,,him.(Exhibit 2, at p.15). .
The second letter [Exhibit S] informed him thatymeeting is scheduled on
Friday March 12, 1993 at 1300 hours" to enquire into the two allegations.
At the hearing, the first of the two allegations [failure to disclose,the
conviction],was withdrawn upon the representations made by Manaar's lawyer;
that Manbar was acting-on instructions of his probation officer, under
authority of the same Ministry. Thus, this arbitrationis concerned only with-
.the second charae: the'effect of his conviction on his employability.
At the conclusion of the March:lBth meeting, Di Palm! instructed-Tony Roth,
the Recreation Manager, to escort Mandar to his'office, to allow him to gather'
,his possessions, and then to escort him out of the institution. Another RO 2,
John Jackson, seeing Mandar gathering his things in the Recreation Office, '.
asked him what was going on. Mandar responded forthrightly: the Superintendent
,had ordered him to pack his things and leave the institution because he had
been convicted of a sexual assault on a minor; all because he had given -his
eleven-year-old god-daughter “a back rub", which he regarded as an innocent
activity. But his I.awyer had told him this vias legally wrong, based on t,he
voluntary statement he had given the police before he called his lawyer. He
had accepted his lawyer's advice, pleaded guilty and was sentenced to three
years' probation. Mandar told John Jackson that he feared the girl's parents
were “out to get him": “They got my house and now they are after my job too".
John Jackson, later the same day, told the other Recreation. Officers what he
had heard from.Mandar. From the evidence given by Jackson and .the management
witnesses, we have,come to the conclusion that Mandar's conviction is no
longer a secret among MCC-employees. We'are not convinced, hoitiever,.that the,
inmates wo'uld learn about it from the correctIon and recreation officers
because they are prohibited by regulations from passing such detrimental
information about an.officer to an inmate. We were not presented with
cbnvincing evidence on how the inmates would know'of the conviction.
Jackson testified that he had expressed his concerns,.to Tony Roth, his
supervisor, on what it would mean to the recreati _, 7
"department staff if Mandar
returned. He “felt a potential danger" to Mandar, himself and other staff
because, if the inmate population finds out about Mandar's sexual offense, the
inmates might “‘challenge his authority", “create problems", impair his
“dbility to do his job effectively”, and they might create situations where
fellow officers might have to go to his assistance. He believed these things
might happen because sexual offenders are held in contempt by "the inmate
code”. -He -did not say how the inmates would know, but he testified that he
would riot tell an inmate pbout the conviction. r
Jackson acknowledges that the potential danger comes from the inmates and not
from Mandar. He beliebes.Mandar's presence creates a -potential danger for him
and his work associates because, according to their code, inmates might defy ._ ’
him if they: learned about his sexual offense.
Jackson testified: “If an inmate or' group of inmates would assault Howie _.
{Mandar] we'd come to his assistance. It’s my job to assist him. It could
result in a violent transaction. It’s not a situation I would want to be
involved in.” However, Jackson acknowledges that the threat.of violence is
always present in penal institutions, much less so at the Maplehurst
Correctional Centre, which is medium security, than at the Detention Centre
which is maximum security. He could not say, when asked, whether the
“potent ial for violence” which he associates with Mandar’s presence is any
different from the'other potentials for violence among inmates normally
associated with his work at MCC. In Jackson’s view, what was different was
. . ‘..
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that "this could be prevented...lf he doesn't work there, the potential 1s not
there." In cross examination he indicated that his view would be the same in
the event of a racist inmate code which discriminates pgainst blacks: “if
.something could,be done to remove the black officer, he should be moved;
depending on the seriousness of the threat, or how real the danger."
Jackson could not say, however, how real or imminent the danger or how
serious the threat to Mandar: "I can't say how likely, but there is a
potential". He testified that over the past four years he wqs aware of only :
six serious "violent situations of Inmates against inmates" bnd only two
incidents of inmate violence against stciff. Neit 'I'of the two incidents, as .F
far as he knew, involved a staff person convicted bf a criminal offense.
Jackson'does not know of any case where an officer convicted of a sex offense
actually.had been hssaulted by an inmate. ,
.NeVerthel.ess,'Jackson believes there is a potential for danger to Mandar which
would be greafer if the inmates know of his conviction than if they do not
know. This apprehension is based on his opinion that the inmate code holds
sexual offenders in. very low esteem. There is nothing in his testimony to
explain how he has come to this opinion, other than his general experience. in ,
corrections. His own.attitude toward sex offenders is much the same as what
he attributes to the inmates.' He could not explain why their attitude towards
sex offenders are different than towards other criminals, except-to say it
might be because their confinement prevents them from protecting their loved
ones against sexual offenders.
Jackson testified he got along very we.11 b;/ith Mandar during the years he
worked with him prior to his conviction, and experienced no difference in
worki-ng with him bver the seven-month period after his conviction in
September, 1992 until his dismissal. He testified also that he could work with
the grievor again if he had to, notwithStanding his concerns for Mandar's
safety which did,,not arise until he learned about his conviction.
Tony Roth confirmed that Jackson had told him about'his concerns, asking "if,
Mandar comes back to work and I have to work with him, what happens if inmates
‘Y
1.2
find out about nis conviction?" He asked a 50 about "the sub-‘culture code
.among inmates, how they would look on an officer convicted of sexual assault
on a minor". Jackson approached Roth again subsequently;during the course of
these proceedings, asking "what happens if Mandar comes back?" Roth testified:'
"I told him'it was a possibility. I don't know. He would have to work with
him".
Roth testified that Jackson told him he had a persona 1 distaste for working
with someone convicted of a sexual offer&e on a minor; Roth said he does not
share Jackson's point of view, and further: "I.do *'t have a problem working
Iy
with him", except that he has.concerns for the safety and health of his staff.
Roth expressed no concerns whatsoever about Mandar personally being a danger
or threat to others.
Roth also believes'that anyone who has worked in
the inmate code reduces s,ex 0ffender.s to a very
corrections would acknowledge
ow status. -I
"I'f inmates find out Mandar is a sex offender they would look on hi%’
differently than anyone else. They lose- respect for him. and he loses
authority. If confronted by an inmate, other staff will nave to assist him.
If Mandar gives an order .to an inrnate.who knows of his conviction, the
inmate has no respect and might confront him because of the inmate
mentali,ty, the code."
Roth does not know if the inmates.know of Mandar's conviction, but if he
returned to work he was confident "they-would not find out from my staff, but
news travels quickly in corrections." 1
1
j'.
Roth confirmed he had given Mandar fairly good appraisals, particularly for
the period after his conviction when neither he nor others in MCC knew of it
He testified in,cross-examination that he had no doubts about Mandar's job
competence, and that, even after knowing what he knows now; he would not
change anything in his appraisals of Mandar, which he had done before he
_ learned about the conviction. However, he testified that he might have a
that he
inmates
problem hiring him, now
have difficulties with
knows of the'offense, because Mandar tnight.
f they were to know also.
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13
DI Falmn testified he believes there IS a stigma attached to sexual offenses
on minors which are viewed most negatively by inmates.and staff, tnore.so than
other types'of offenses. III his view, Mandar's ability to work in the
institution is impaired by his-conviction for such an offense because of this
stigma, and how it is perceived In a correctional facility. This opinion is
based on his “twenty.years in this business". His belief that the "inmates
wouldn't let him work" is not based on any actual case experiences. Di Falma
believes Mandar's conviction adversely affects his image and impairs his
ability to serve as a role model for inmates. However, he did not have bny
objective evidence to support this opinion arld did not p&sent us with any
instance where the employment of an officer convi ted of,a criminal offe'nse ./i -'
was terminated as a result of concerns about inmates. Di Palma confirmed that
"nobody actually came to me and said 1 couldn't work with Mandar".
Di Palma acknowledged in cross examination there are cases of officers who
were convicted on grounds other than sexual assault and were not dismissed. He
knows of no previous case of an'officer being convicted of a sexual assault.
Why other criminal offenders are treated differently by the Employer than.a
sex offender, on the issue of employability, was not explained by Di Palma or
any of the other witnesses for the Employer, other than in'the context of the
' inmate code.
Di Palma testified also that before Mandar's dismissal was decided “we had'tq
consider the image or reputation of the Ministry." "The anonymous.telephone
call came from the community--- someone there.was dissatisfied." ,
Di Falma assigned the responsibilify,for conducting a disciplinary hearing to
his deputy, Jim Feather-stone. Mandar attended this hearing with his lawyer.
Featherstone testified he made the decision to dismiss Mandar on March-15,
1993, after the hearing on March 12th, and after consulting Di Palma, Ted
Anthony [Regional Personnel Administrator], as well as the Ministry's "Policy
and Procedures for Adult Institutions" on the subject "Employees Charged with
or Found Guilty of Criminal Offenses" [Exhibit 41.
The relevant portions of this Policy directive are:
5
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-“PROCEDURES:
5. In consultationwith the regional directpr/manager,the superintendent
shall then conduct a-full review of all available in.formation concerning
the employee's charge .and empl-oyment record, including information
provided by the inspector,in order to decide on the most,appropriate
course of action to be taken with the employee.
While' each case must be judged on its own merits, the following courses
of action are available to superintendents:
a) no action;
b) job reassignment within the parameters of the Collective Agreement
and(or.the Public Service Act; ,T
c) leave of absence; or
d) disciplinary action; up to and .including dismissal."
********t
"Guide1 ines
"Decisions involving employees charged .with or found guilty of criminal
‘offenses shall be based on a comprehensive evaluation of all-relevant.
and available information and on the real or potential effects-of the
charges on the ministry's legitimate and substantial interests. Cases
shall always, be decided‘individually and on their own merits.
Vhen making decisions, superintendents shall consider the following
information-where availdble: I,
a) the nature and seriousness of the criminal charge;
b) whether or not the offense occurred in the course of employment with
the ministry;
c) any explanation or statement of mitigating factors for the offense
provided by the employee;
d) whether or not the employee is remanded in custody, sentenced, to
custodial' term or subject to future legal proceedings;
e) the position, duties and. responsibilities of the employee and the
impact that the criminal charge may have on the employee's abilities
to perform those duties'and responsibilities;
f) the impact that the criminal charge may have on other employees and
on the legitimate and substantial interests of the ministry;
g) the employment record of the. employee; and
h) the existence of a prior criminal record of the employee;subject. to
the provisions of the Ontario Human Riaht Code."'
+*************
"Employees who are charged with or found guilty of criminal offences may
be unable to fulfil1 their duties and responsibilities because:
a) they are detained pending legal proceedings or have been sentenced to
a custodial term;
b) they may have breached the position of'trust that is an intrinsic
part of employment in the public service or have committed a breach
of the employer-employee relationship
I 1
.) they IWIV be u*lqb1e to maintain sat1sfactory working relations with
peers hndior offenders in their care." [Exhlblt 41
Featherstone's letter to Mandar dated March 15, 199'3, states:
“This wi'll confirtll our tlleeting of March 12, 1992 [sic]. The purpose of the
tlieeting was to inquire into the pllegations:
ti ‘That you failed to disclose your recent criminal conviction to your
immediate supervisor, contrary to Ministry policy.'
i( Further, “ ‘That on September 2, 1992 you were convicted of a critllinal offense,
and in this regard you conducted yourself in a Iilanner inconsistent
with being an employee of The Ministry of the Solicitor General and
Correctional Services.'
i; '." "When questioned about the first allegation, of not reporting the
incident to your supervisor you stated that you had indeed discussed this
issue with your probation officer. At that time you stated he advised
you not to, disclose the criminal convictions to anyone at the
institution. In addition, you stated that you had no knowledge of the
policy. Your probation 0ffice.r has provided a statement which
corroborates your' statement and therefore mitigates the aliegotion. .
“In reference to the second allegation of being convicted of a criminal
offence, you readily admitted the fact. You stated that you hod been
. charged and convicted of the offence of sexual assault. You admitted
receiving a suspended sentence and three year’s probation.
“Based on my investigation, the information provided and your statement,
I find that the allegations hove been substantiated. These actions of
yourself were outside of the workplace, however, they are incompatible
wi’th your role ,as- a Recreation Officer for the Ministry of Solicitor
General and Correctional Services. In assessing the penalty, I did
consider your length of service and job performance, however, this
incident is very serious,, in that it totally impairs your ability to
function .as an employee of this Ministry. Therefore, it is my decision
to dismiss you from employment for cause, effective March 15, 1993,
pursuant to Section 22(3) of the Public Service Act." [Exhibit 21
Featherstone testified that in making the decision to dismiss Mandar he vias
guided by the "Guidelines" in the Ministry's policy directive.'[Exhibit 43 _
In our judgment, based on. his testimony and all the evidence we have heard in
this matter, we do not doubt that he read the.document, but it is very
unlikely that he gave the guidelines sufficiently serious consideration in his
decision-making process. In spite of Mandar's exemplary employment record and /
very f.avourab‘le appraisals, Featherstone testified he found “nothing in
Mandar's file to mitigate against the seriousness of" Mandar's criminal
conviction. He failed to give adequate weight to the Judgment of Mandar'.s
supervi,sing probation officer and his manager, \+/tio apparently scli'l no risk or
danger to anyone resulting from Mandar's ,continuing employment. And he failed
td give consideration to the fact thc;t Mandar continued to perform very well
at work for about seven months after his conviction, without a problem. The
cogent evidence before us on Mandar's conduct slnce his arrest is convincing
proof of his serious commitment to his own rehabilitation.
That same evidence was qvailable to Featherstone. He acknowledged-his decision
was based solely on the conviction. He testified he probably would have
dismissed him even if no one at MCC knew of the.c p" diction, believing
"everitua.lly there would be problems somewhere": “I believe the conviction is
serious because it-goes against the ethics of a correctional organization and
.' impairs his ability to'fuhction-- eventually there could be trouble, they would
find out." He personally believes sexual assault is more serious thah other
criminal convictions sucti as for a bar-room assault; and he acknowledges this
had an impact on his decision, that he might not have dismissed him if his
conviction had been for a crime he personally regards as less serious.
Featherstone test'ified he had no fehrs the grievor would ever again do
anything criminal. Ndr had ,he any fears that Maridar was a danger or threat to'
others. He agreed this. is not an issue. His conclusion that "now that it's out
no one would work with him" [reached without discussing Mandqr's conviction
with any of the employees] wbs based on his general knowledge of the attitudes
of inmates and staff acquired in his many y&ars of work in penal institutions.
Furthermore, hejtestified that even if'Mandar's fellow employees had come and
* told him they wanted-Mandar back, that they would work with him without any
problem, it would have had no impact on his.decision.
Featherstone's judgment chat Mandar is unable to maintain a satisfactory
working relationship with peers and offenders lacks clear and convincing
proof. Nor is there cogent evidence on which to base clear and convincing
proof of his decision that the grievor's conviction created a breach of trust.
On his own testimony, it is not Mandar he distrusts, it is the reactions he
._
z3 ’ 1, .’ - .,, .‘.
.-
1:
expects'from staff and inmates to a sexual offense vdhlcn he personally found
very serious as well qs distssteful.
The Ontario governmk's G%ORKPLACE OISCRIMINATION AN0 HARASSMENT &VENTIOM
DIRECTIVE" commits it as 'an employer to “providing d workplace that is free
from harasstient and discrimination". The directive declares that “emp
have the right to fair,dnd equitable conditions of employment wIthout
discrimination or harassment because of {among other things) criminal
oyees
charges
or criminal record" while drawing attention'to permitted exceptions:
"The Ontario Human Riahts Code, ss. 16, 17; 24 an 25, pertnits exceptions to
certain provisions in this directive. For examp I./ the need for public decency '
'or se%-role identification can warrant a designation of males or fernales only.
Nurses' aides providing intimate personal care for chronically ill persons who
request same-sex care' and felltale counsellors for battered wowen for examples.
.Or safety concerns may allow an employer to exclude individuals with a serious
crilninal recprd of sexual asSault .of developlnentally disabled children frown
positions invqlving care of such children. Managers and supervisors should
consult the Code regarding the exact wording o.f the provisions." *************
Featherstone testified he is aware of the Employer's discrimination policy and
direct.ives; but. we have no evidence‘on 'whether or not he had consulted the
Code for guidance on-irhe permitted exceptions. In any event, At is our
judgment he did not apply the policy directives appropriately..He wrongly came
to the conclusion that Mandar's case is a permitted exception under the policy
solely on the fact of his conviction for a sexual assault on a minor. In his
mistaken view; h-is' personal judgment of the seriousness of,the offense, and
his opinion about the inmate code, are sufficient grounds fpr the dismissal.
No doubt, this,offense is serious, but the measure of its seriousness -for
society has already been determined by the court. Featherstone's
responsibilitg is not to judge the seriousness of Mandar's offense against the
community; that is for the justice system to determine. Rather, his
responsibility is to determine the seriousness of Mandar's conviction “on the
ministry’s legitimate and substantial interests". [Exhibit 4-Guidelines]. In
our considered opinion, Featherstone failed to give appropriate consideration
to this question.
Featherstone failed to take into serious consideration the fact that t‘he court
did not sentence Mandar to a custodial term, but rather remanded him under the
su,pervision of the Ministry's probbtion services, and the terms of 111s \'
probation in no way prevents Manda-r from working with adults or children. He
also failed to take into serious consideration that Mandar had performed very
well on his job from the time of his conviction u&i1 his dismissal, and that
he continued working on the advice of his-probation supervisor. Presumably, if
in the court's judgment “the nature and seriousness of the criminal charge"
[Exhibit 4-Guideline (a)] was such as to indicate thqt Mandar was a danger or
threat to others it would be reflected in the sen I^ 'nce imposed ,upon.his .
conviction. Featherstone failed to give approprjate consideration ,to the
judgment of Mandar's supervising probation officer and his manager '[wt?3 work
in a branch of.the same Ministry] on'the question of Mandar's employability.
Presumably, if Mandar's criminal conviCtion had a potential. im.pact "on other
employees and on the legitimate and substantial interests of the ministry" 1
-' [Exhibit 4 -Guidelines.(f)] the MCC would have been informed promptly by the
Probation and Parole Services.,
Featherstone testified that he has no fears that Mandar personally is a threat
or danger to anyone. What Featherstone,fears are the attitudes and reactions
of inmates whom he delieves h.ave contempt for sexual offenders. It is-
J
equivalent to dismissing an employee on the grounds that inmates-and sthff
might have a dislike, distaste or'contempt for persons of colour, or
homosexua!s, or followers of a particular religion. In any event,, even if it
were a proven fact that inmates dislike sexual offenders,generally and may
behave disrespectfully or even violently -toward theti, in our judgment that is
not a just or reasonpble cause. for,Mandar's dismissal.
In our judgment the Ministry failed to seriously consider the option suggested
by its own Policy and Procedures for Adult Institutions [Exhibit 4--5(b)].
Featherstone testified he had “looked at placing Mandar elsewhere but the
Regional Office said I could not do it withln my authority". Thus, he did not
recommend or seek authority for a lob reassignment. If it had been a serious
consideration', the Ministry would have made some effort to seek an arrangement
i
with the Union for Man&r's transfer p/ithln the parameters of t
Agreement.
he Co1 iect i
: :, ; ‘a.
Ge
It is not to be inferred from the views which we express herein that a
criminal conviction for sdxual assault, in different factual circumstances,
may not be a just cause for-discipline:or discharge. Each case must be judged
on its own merits;.The case before us is readily distinguished from the
dismissal cases'rel,ied upon by counsel for the Employer;particularly those
involving sexual assault. In RE ICG UTILITIES AND ENERGY & CHEMICAL WORKERS
UNION (D.E.Bowmanl IX L.A.C.<3dl, QI) 206-222-l th 'Grievor, a meter reader
7 with access to customers' homes on a daily basi's, waS“convicted of sexual
assault involving a female juvenile and sentenced to six months imprisonment,
to be followed by two years supervised probation." In that case, the grievor
had an unsatisfactory work record as well as a disciplinary record of
"suspensions related to an insubordinate attitude and unwillingness to follow
instructions”. Management's decision to deny the grievor a leave of absence to
serve his prison;sentence was upheld. The award finds that the grievor
occupied a
“sensitive and highly visible position of representation of the company.
. . . His access to the homes.of customers, often with keys, his presence
at times when frequently the only persons present in the- home mby be the
ww3, -the ill, the.elderly or the otherwise relatively defenceless, renddr
,it vitally important that the public be able .to accept him in their homes
with confidence."
Further, it finds -the grievor's
"response to the charge against him, both in answers in the sthtements to
the pdlice and to his-psychiatrist, qre not such as to engender confidence
in this board that he has actually ac.cepted responsibility 01‘ appreciated
the enormity of his conduct. This conclusion is underlined by what we can
only regard as something less than candour in his evidence before us."
Unlike the grievor, in the case cited above, there is vothing in the evidence
before us to support similar conclusions regarding Mandar. He was honest and
forthright in his statements to the police, to management and .to us. He has no
discipline record and he has a praiseworthy work record. There is no evidence
to suggest that he is in any way untrusfworthy, or a danger or threat to the
public, to the inmates in his charge or to'his fellow employees. Nor do we
20
find that Mandar IS in “a sensitive and highly visible pqsltion of
representat.ion" of his employer to the public.
In RE OVERWAITEA FOODS AND RETAIL CLERKS' UNI.ON. LOCAL i518 <B.H. McCall)
[28 L.A.C.(3d), pp 393-40'71 the grievor's dismissal was upheld where it was
found that his off-duty behaviour, hl,s conviction.on four counts of common
assault involving physical examinations while posing as a medical
practitioner, had damaged-his employer's public image:
"In the absence of evidence of the impact of 'the grievor's conduct on the
reputation at large'of the employer, the fact of other employees' reluctance
to associate with the grievor might not be a deciflng factor. In the present
case it is combined with the overriding, uncon‘tr'overted evidence relative to
the employer's concern for its reputation in Katnloops and within the community
at large. Where both such considerations .arise plainly, as they do here, the
fundamental reIationShip between the employer and the enlployee is called into
question.
“We have reached the conclusion that the grievor's rehabilitative potential is
overridden by those*two considerations. The board therefore concludes .that the
grievor's conduct was so notorious and so well-known within the community in
which it occurred that the employer was not in error when it considered the
potential damage that such conduct would have on its reputation in the
.determination to discharge the grievor.Further,the board has concluded that
the relationship between the grievor.'s off-duty conduct and his employment -
contract was well known and that in considering the 'poten.tial injury to its
reputation the employer was not embarking on a fanciful or imaginary concern.
Having regard to those factors and the general knowledge of the events both
within the community and within the employer's work force, the employer was
not wrong in deciding that it could not maintain public'credibility if it
reinstated the grievor to employment."
Unlike the case cited above, in the instant case we have no'evidence, other
than what we heard about an anonymous caller, to support the Employer's claim
that Mandar's tonduct causes “potential injury to the reputation of the
employer". This i,s hardly sufficient proof even an the minimum standard of
balance of p.robabilities. On this issue, we agree with the views expressed by
Vice-Chairperson B. Fisher in,RE OPSEU rGARDINER1 8 MINISTRY OF CORRECTIONAL
SERVICES [GSB 1113/89]:
"in light of the clear evidence that the Ministry has not only continued to
employ, other Correctional Officers who have been convicted of criminal
offenses, but also not subjected those Correcttonal Officers to any discipline
whatsoever, it shows that the employer's reputation would not be damaged by
re-employing the grievor. The words of arbitrator R.F. Ferguson in re: Cape
Breton Countv Correctional Centre and Canadian Union of Public Emulovees.
Local 1146, 19 LAC (2d) 325 at page 3?9 apply well to this case:
’
21
‘I fumthcr ctin not (;cc how management's rcputat~on 1s
grievor-joins othe'r guards wit.h crzminal recordi' w
-I :_ a. .:
Injured if the
No specific evidence was led to.p?ove the Ministry's claim that a.conviction
on a sexual offence against a.mlnor causes greater harm to "tile legitimate and
substantial interest.s of the Ministry" than other crlmlnal convictlons. The.
vice chairperson's spe,cific buestion at the hearing on wiy Mandar was treated
differently,,than ot)er stclff persons convicted of criminal offenses was not
addressed.
c
Ndr do we have any convincing evidence that the conviction would prevent the
grievor from performing his duties satisfactori,l,@iithin the institution in
which he is employed ,. It is 'alleged that his conviction affects his ability to
serve as a role model, but it is not explained why or how he would be less
able to serve as,b ,role model than those other officers who have also been
convicted of criminal offences.. One employee testified he is reluctant to work
with Mandar. because of his concerns regarding the inmate code as \iell his
personal attitude towards sexual.offenders. He testified also that he would.
work with .him if'he had to. On the evidence before us, we are not convinced
thbt the griebor's criminal conviction leads to 'a refusal or inability of
other-employees to work with him. In any event, the potential attitude of i.mah and
staff and their unwillingness to cooperate with him, solely because of his
conviction is:not a just or reasonable cause for the grievor's dismissal..
Employer's counsel relies also ypoh RE CORPORATION OF CITY OF CORNWALL AND
CANADIAN UNION OF PUBLIC EMPLOYEES:iOCAL 234 (Roach)[31 L.A..C.(3d>,pp.lSS-S]
which decides that the discharge for off-duty conduct involving .a criminal
conviction for sexual assault is justified. The grievor had an extensive
criminal record showing convictions on similar or related offences on two
previous occasions;,and “the conviction and sentencing received a certpin
amount of publicity since .it was fully‘reported in the local newspaper." The
arbitrator decided:
"the evidence cleatily establishes that the grievor's cor.duct tllakes it
difficult in the way it [the employer] can properly carry out its function
of efficiently managing its work and directing its work-force."
Further;he found, on the evidence:
“ ..there is an elerllent of trustworthlness whi-ch must be present in.
employees iuho are required to go to the indlvxdilal -homes in ?rls\ver to calls
regarding probyens related to water-lines such as water breaks w sewer
lines" [which the grievor's Job required]
And he found also:
“a lack of trustworthiness on the part of the grievor const-ttutLny the key
eletrient in justifying the grievor's distilissal".
In the case at hand, none of the witnesses suggested that .Mandar is :
untrustworthy.
The Employer's witnesses who testified on “the inmate code" established the
fact that it is a widely-held belief among those employed in penal
institutions. It is their belief that is the estab-<ished fact,, and not the
i' code. But even,if the inmate code were an accep ed fact, it would. not be a
just cause for the grievor's dismissal. Such a widely-held belief is not
acceptable as clear and convincing evidence of a real danger to Mandar and
those who work with him. Certainly the evidence has not established that
Mandar and his associates, because of his conviction, would face any more
danger or risk of assault by inmates, than they normally .face. in the course.of
their duties within this particular penal institution. The belief that inmates
despise, defy, and assault sexual offenders indicates a fear or perception of
potential danger, but it is not clear and.convincing evidence of a real
danger. In any event, if there were a proven real threat to safety and health
associated with- Mandar's continuing employment at MCC, that threat would
reside within the inmate population and not in Mandar, and therefore it would
not be a just. cause for his discipline or dismissal':
Many widely-held beliefs are nothing more than prejudices which have
no foundations in fact. For example: many widely-held beliefs have existed
historically, such as those about Christians in Ancie'nt Rome, about Jews in
Nazi Germany, and,about Blacks in North America, which have not been founded
in verified facts, but which have produced unrealistic fears and behaviour
that disgrace humanity and the cause of justice.
Justice is not served by an uncritical acceptance of widely-held beliefs.
I Nor is there any place for vengeance in a Justice system
Mandar was tried and co:lvicted by our jcl;tlce system. 1.i: i; the &spons:billty
of the justice system to determine Mandar's guilt or Innocence and to
determine the appropriate penalty according to the seriousness of the crime -'
and related circumstpnces, and.to issue more severe penalties for,the more
serious crimes. It is not the.function of this arbitration to re-try Mandar
on the same facts which resulted in his ctiminal conviction. Nor is it our
responsibility to determine whether or not his sentence to three years of
'supervised probation was sufficient. The court sentenced him on. an offense
against society. Our duty here is not to duplicate what the court has already
done. It is to'determine whether Mandar committed/'h offence against his -/"
employer,-and whether such offence constitutes just cause for discipline or
discharge.
The evidence indicates the victim's parents were seeking to acid. to the
grievor's punishment by causing the loss of his job. Without, clear and
convincing evidence of on offense against his employer [such as.a serious loss-
of his abi,Iity to perform the duties of his position], the affirmation of
Mandar's dismissal simply on the grounds of his criminal conviction would only
.serve to duplicate what has already,been done by.the criminal justice system,
adding further punishment to the sentence he has already been given. This is
vengeance, not justice. -_
Because this is a dismissal, case we have applied the same standard of proof as
Vice-chair Brant applied in OPSEU (John Ghan) & Ministry of Health [GSB 911-
918/85-J :
“The standard of proof in a case of this kind is set out in Re Bernstein
and the Colleae of Phvsi'cians and Suraeons of Ontario cl5 O.R. (Zd) 4471
where the Ontcirio Divisional Court stated that the proof must be ‘clear - and convincing based on cogent evidence which is accepted by the tribunal'
and that the 'seriousness of the charge is to be considered by the,
tribunal in its approach to the care it twst take in deciding a case which
rltight in fact &tount to a sentence of professional death'. The grievor has
been charged with ,a serious offence and a finding that he cotntnitted the
offence does expose hiar to the risk of ‘professional death'."
Employer's counsel proposes that this pane1 accept the criteria adopted by
certain other arbitrators for determining whether there is just cause for
24
discharge for off-duty conduct. In particu'lar, he cires.the fo',lowing pass:rge
from Re Millhaven Fibres Ltd & Oil Chemical and Atomic Workers Int.'l Union,
Local 9-670 [1976] 1-A Union-Management Arbitration Cases,328 (Anderson) which
is cited in RE AIR CANADA AND IAM LODGE 148 (1973) 5 LAC (2d) 7 (Andrews), and
also in some other cases:
“\ . ..if the discharge is to be sustained on the basis of a justifiable
reason arising out conduct away from the place of work, there is- an onus
on the. Company to show that:-
(1) the conduct of the grievor harms the Company's reputation or product,
.1
(2) the grievor's behaviour rende.rs the emp'loyqe ;'unable to perfcrm his
duties satisfactorily :/
(3) the grievor's behaviour leads to'refusal, reluctance or inability of
the other employees to work wi.th him
(4) the grievor has been guilty of a serious breach of the Criminal Code
and thus .rendering his. conduct injurious to the general- reputation of
the Company and its employees
(5) places difficulties in the way of.the Company .properly carrying out
its function of efficiently managi'ng. its Works and efficiently
directing its working forces."
In our -view, if any one or more of the above factotis is c1earl.y and
convincingly proven by the'employer on cogent evidence, depending on the
gravity of the impact of the off-duty condtict upon the employer's legitimate
interests, there, is just cause for discipline'or dismissal. It should be
emphasized, however, ., it is not the seriousness of the breach of the Criminal
Code'that is the determining factor, but rather the seriousness of the harm
which the conduct or the conviction causes to the employer's reputation and
its ability to efficiently perform its managerial functions; and/or the
impact of the conduct or conviction upon the grievor's'ability to perform his
duties satisfactorily.'
The words of Arbitrator Richard Verity, in RE MADAME VANIER CHILDREN'S
SERVICES & OPSEU-[1988- UNPUBLISHED] are very well applicable here:
"TO establish just cause the Employer can not base its case on suspicion
or supposition. There must 6e a factual basis for the assumption that
the grievor's continued, employment poses a.risk to the Employer and its
clientele.” *
I :-
For the reasons given herein, it 1s our declsioil tICit tile Er?iployer has failed I
to establish just or reasonable cause for disciplin? ot' dismissal. I - . . I Accordingly, the grievor shall be fort I-w tli t-e! ~isti.itt=ii to Ills position at the.
i
.
i’
Maplehurst Correctional Centre, without loss of seniorit!'; and he shall be
fully compensated for al,1 lost wages and benefits, with interest calculated in
accordance with the practices followed by th e Ontario Latxur Relations Board.
We remain seized in the event of any difficulties between the parties in the
implementation of this award.
/ ,'
/
DATED AT HAMILTON, ONTARIO, THIS 15th DAY OF MARCH, 1993
-----_---------- I
E. SEYMOUR, MEMBER
"1 Partially Dissent" (attached) ______________----------------
M. O'TOGLE, MEMBER
'PARTIAL DISSENT \
87/93
I concurwith the decision of the majority to rescind the
discharge .of,the grievor and re- instate him in the position of R02.
However, I must dissent, inpart, from :A.'he rationale on which the ./
majority base this decision. I further concur with the decision of
the majority to award full compensation to the grievor but for
I different reasons than the majority. Finally, I must dissent from
the decision of the majority that no discipline is warranted in
this case. My reasons for all of the above are set out below.
Those .aspects of the majority's rationale for re-instating
the grievor, and from which I wish to dissociate myself, are as'
follows.
The majority appear to find that there is no satisfactory
proof of the inmate code but only of management's llbelieftl in the
inmate code. In my opinion, the majority's ,finding on this matter
is not in accord with the. weight of the evidence. All of the
witnesses who testified, save the grievor, expressed a
strongly-held opinion tha,t there is an inmate code which has a
special disdain for sexual offenders against minors. .Together
these witnesses had many years of experience.in corrections. In my
.
view that experience, formed a very solid basis for their opinion.
There are no reasonable grounds that I am. aware of.for doubting the
legitimacy I of their opinion. Indeed, their opinion is consistent
with what I perceive to be a general disdain in our society for
sexual offenders against minors. Given my general knowledge'and
experience of human nature and human affairs, I am persuaded,
without a parade of inmate witnesses testifying. to it, that an.
inmate code exists. Quite frankly,' I find the majority .somewhat
I
naive in their reluctance to be so pers&ded.
The majority are satisfied that the grievor's conviction
will not become known to the inmates because correctional staff are
prohibited by regulation from passing such detrimental information
about a staff member to inmat"es. However, this case amply
demonstrates .that regulations are frequently not known and net
observed by correctional staff. After all the grievor was obliged
by- regulation to reporthis,conviction to his employer but he said
he was unaware of it. :I therefore would conclude that there is, at
least, a strong risk of the grievor's conviction becoming known to
the -inmates. However, I am not persuaded that this is necessarily
fatal to the grievor's ability to act as a role model for inmates.
In my opinion, if the conviction is likely to become known to the
inmates, there is no reason why the mitigating circumstarzes
surrounding the conviction will not also become known to them.
Therefore, the inmates may well be able to judge the grievor in a
much broader context than just the conviction. Accordingly, I am
of the view that, while the grievor may suffer some loss of respect
..’ ;
.Y “i-i\ . 3
(
\ ‘ 3
*
by inmates, there is a reasonable prospect that he will be able to
maintain a sufficiently high level of respect to,be able to fulfil
the requirements of his job.
The majority set out an extended commentary regarding the
inappropriateness of vengeance in the context of discipline. In my
opinion this commentary is completely uncalled 'for in. the
circumstances of this case.. The' employer in no way sought to i' '_
avenge the wrong against society commi&d by the grievor. It only
took what it perceived was a necessary measure to protect its
legitimate business interests. To be sure, the employer's
perception was wrong, but its motive cannot be impugned.
.The majority -appear to conclude that' no discipline is
warranted:
A) because there is no cause for discipline;'
B) even if there is cause, discipline is inappropriate as it.
would constitute discriminatory treatment of the grievor.
I will address each of the above points seriatim.
Discipline. is only warranted if there is misconduct which.'
_I
negatively impacts a.legitimate business interest of the employer.
In my opinion, the grievors misconduct had such an impact. My
rationale is as follows.
The employer has a legitimate interest in expecting all
of- its employees to be able to perform the requirements of their
jobs.' One-'of the requirements of the grievor's job as an R02 is
that 'he be capable of being a role model for inmates as to how to
effectively‘ and constructively utilise their leisure time. The
commission by the grievor of a sexual assault upon a minor during
his own leisure time prima facie prejudices his ability to be a
.role model.for inmates as to the proper use of their leisure time.
The above prejudice, however, is not such as to irreparably
'
harm the grievor's ability to be a role//m '-ode1 due to the following:
1) his leng.th of service:
2) his clean discipline record:
3) his uniformly positive performance appraisals;.
A) his offence was a single, isolated instance and out of
character for the -grievor;
5) there was no .indication that 'the grievor had any
lingering 'behavioural or psychological problem that
would-result in a repetition of the offence;
6) the criminal court only sentenced the grievor to a term
of probation;
7) there has beenno misconduct by the grievor since.he was
.put on probation.
In the -result the grievor is still a viable role model and,
accordingly, re-instatement in his job is warranted.
Notwithstanding his re-instatement, and bearing in mind the
fact that his fellow ROZ's‘are aware of his conviction and the
substantial likelihood that the inmates will become aware of the
r - I,.
grievor's conviction, there is a continuing prejudice to the
grievor's ability to be a .role model and, accordingly, some _*
discipline is warranted. The measure of discipline is to be
,determined according to what is required to achieve the objectives
of correction, punishment and deterrence. If the grievor had not
performed his job for some seven months after his conviction with
no problems and with the knowledge and approval of the Manager of
another branch of the same Ministry, a lengthy suspension without
pay would,have been appropriate to acyeve the above objectives.
But having regard to the foregoing circumstances, a written
reprimand, including a specific warning that a repetition of his
misconduct or similar-.misconduct would subject the grievor to
discharge, is the appropriate measure of discipline.
The.majority, 'however, find that the employer is barred from
imposing .discipline on the grievor because it has not disciplined
other employees in the past whc were convicted of other crimes such
as theft, drunk.driving and common assault. In my opinion, such
crimes can be. distinguished from the grievor's -crime on the basis
that crimes.involving the sexual molestation of children by adults
are. regarded' in our society as ,far more serious than crimes
involving only adults or property. Indeed, they evoke an
especially intense revulsion. The reason, of course, is that
children are viewed as society's most precious resource and
children are subject to far greater emotional and psychological
harm as victims of crime than adults are. Because the grievor's
crime is much worse. than the other crimes mentioned above, it is
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submitted that it has a far more prejudicial effect than the other
crimes on the ability to be a role model and, accordingly, the
employer is justified in treating the grievor's crime differently
than the other crimes for disciplinary purposes.
There is another factor which favours the imposition of
discipline in this case. Although the grievor overall was candid
and honest in his testimony, he attempted several times to,minimize _
. I the seriousness of his sexually assault've behaviour by descrrbing ./"
it as a mere "back rub". This suggests that the grievor does not
yet take full responsibility for his actions. For this reason
discipline is appropriate.
all the foregoing In conclusion, having regard to
considerations,' the-decision of the majority not to impose any
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discipline on the grievor is patently unreasonable.
M. O'Toole, Member