HomeMy WebLinkAbout1989-1113.Gardiner.91-02-05 ONTARIO EMPL OYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARiO
GRIEVANCE C,OMMISSION DE
S~ll'LEMENT REGLEMENT~
BOARD DES GRIEFS
180 ~i~JN~)AS STREET WEST, SUITE 2~00, TORONTO, ONTARIO. MSG 1Z$ TELEPHONE/T£L£P~ONE: IA ~6) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG IZ8 FACSIMtLE/T~L~COPtE ,' (4t6) 326-1396
1113/89
IN THE MATTER OF AN ARBITRATION
Under'
THE CROWN EMPLOYEES.COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Gardiner)
GrievOr
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE: B. Fisher Vice. Chairperson M. Lyons Member
J. R. Scott Member
.FOR THE' R. Anand
~R~EVOR Counsel
Scott & Aylen.
Barristers & Solicitors
FOR THE J. Benedict
EMPLOYER Manager
Staff Relations & Compensation
Ministry of Correctional Services
HEARING: JanuarY 29, 1990
May 10, 1990
August 9, 1990
This is a discharge grievanc.~. The heariiag was completed on August 9, 199Oand on
August 10th the parties weri'e sent the following letter.
'Whe Board has made a unanimous derision in this matter that the grievor shourd-be
immediately reinstated to his former position. An award will be issued later de. ,~ling with
the reasons for this decisionl and awarding the appropriate monetary compensallon."
The reasons for the d~scharge were set out in a letter dated July 31, 1989 as foll~s:
1. that on June 15, 1989 yo~t brought the Ministry of Correctional Services and ~he
title of Correctional Officer into disrepute by being convicted of a serious cri~[minal
offence;
2. that you used your position as a Correctional Officer to attempt to mitigate the
commission of a criminal:., act for which you were subsequently convicted; I'.
'3. that you failed to notify the Superintendent of a relationship between yourself and
an ex-inmate who was a ~ubject in the commission of a criminal act.
i. FIRST GROUND - sERIOUS CRIIdINAL OFFENCE
!:
The incident in question occurred at a Sears store in .Burlington on February 17, 1988.
t
Although there was considerable evidence from numerous witnessesh as to what exactly
took place that day, the essehtial sequence of events was not really in dispute. Fbr ease
of understanding it is useful'~to set out the chronology of ~vents as follows:·
-2-
1. The grievor entered the Sears store on his day off with the intention of meeting
his wife, who worked nearby, for lunch. He had about 30 minutes before .he was to
meet his wife.
2. The Sears store has two levels. The grievor entered the store on the ground level
and noticed a Mr. Rope in the store with a large, empty shopping bag. Although
the grievor at that time did not know Mr. Rope's name, he recognized him as being
an ex-inmate of the Hamilton Detention Centre, where the grievor had worked as a
Correctional Officer since 1982. His curiosity was aroused by the sight of an ex-
inmate with a large, empty shopping'bag walking around the Sears store so he
decided to follow Mr. Rope to see ff the'situation got "interesting", or, in other
words, to see if he could catch Mr. Rope shoplifting.
He followed Mr. Rope around the store, and at one point foand himself in the tape
department on the secrmd floor.
4. At some point while in the tape department, the grievor put a video tape entitled
"Teen Wolf' into his left jacket pocket. It is unclear from the evidence whether
the tape was originally on the. tape rack or on the floor, but it clearly ended up in
the grievor's pocket.
5. Immediately after this the grievor followed Mr. Rope to the Sears cafeteria on the
second floor where Mr. Rope sat down.
6. The grievor presumably came to the conclusion th~.t he was not going to catch
Mr. Rope committing any crime that day, so he proceeded to leave the Sears }ltore
,
by going down the escalaior to the first floor and ex'~ting into the mall.
ihim
7. While in the mall he was :,confronted by Mr. Reid o~ Sears Security who asked
'
to come back to the store ,and advised him that he was under arrest for theft u~ider
,
· $1,000.00. On the way ba~k to the Sears store, Mr. Reid asked the grievor for he
,
merchandise. The grievor responded, "What merchandise?" Mr. Reid told hi that
he was referring to the tal~e in his pocket. The grievor then passed the tape to
Mr. Reid. At the time of ~is apprehension, the grievor had his hand in his left
I,
jacket pocket, the same po,.cket the tape was in.
t'
"
-
8. Back at the sec~. rity office;, the grievor said that he had found the tape on ihe :
floor near where another s.hopper had dropped it. He told Mr. Reid that he ha!d
picked up the tape with the, intention of returning it to him.
9. At that time he also indicated that he was a Correctional Officer, and that he was
Watching an ex-inmate in the Sears store. He urged Mr. Reid and the other
.security staff to go out on the floor to see if they could find Mr. Rope. The
securitystaff did not complly with the grievor's requesi.
10. A short time later, a police" officer, P.C. Smith, came io the Sears security o~fici
and charged the grievor. F~illowing his release, the grievor told P.C. Smith that he'
was a Correctional Officer Who worked at the Hamilton Detention Centre, and that
he has seen an ex-inmate walking around Sears.
-4-
11. Following his release, the grievor went into the mall to search for Mr. Rope. He
ultimately found Mr.. Rope outside the Sears store in the parking lot, standing at a
bus shelter. Mr. Rope still had the shopping bag with him, however it was now full
of merchandise. The grievor tried to convince Mr. Rope to return to the Sears
store with him, .however Mr. Rope refused. Mr. Rope then left the bus shelter but
did not take the shopping bag full of merchandise with him.
12. The grievor then called the police, and P.C. Smith met the grievor at the bus
shelter. The grievor told P.C. Smith of his encounter with Mr. Rope. P.C. Smith
took possession of the bag containing the merchandise and returned it to the Sears
.security staff.
13. On June 15, 1990, following a trial, the grievor was convicted of.the offence of
theft under $1,000.00 and was given a conditional discharge with 12 months
probation.
It was the employer's contention that the whole episode involving Mr. Rope was a
fabrication of the grievor, and that in fact Mr. Rope was not present in the Sears store
on the day in question. However, on this point we tend to believe the grievor that
Mr. Rope was present in the store,, and that he was following him around. The reasons
for our belief are as follows:
1. He told the story consistently from the moment of his arrest up to and including
· the arbitration;
2. P.C. Lee testified that hl in fact took a bag of merchandise into possession a~ the
bus shelter. If the story ..had been concocted from ~e start, the grievor would'
have had to plant this evj'dence himself, a highly unlikely scenario.
However, this doe~ not me,in that the grievor is not guilty of theft as it only'verifies
that he was indeed followin~ Mr. Rope around. In itself it does not Vitiate the intent
behind the removal of. the thpe. We do not, on the balance of probabilities, believe that
the grievor inadvertently pu~t the tape in his pocket. Our reasons are as follows:
1. At the time of his arrest'the grievor told the secur_'ty staff that he had picked'the
tape off the floor with th~ intention of returning it to a man who dropped it.
tat
the arbitration the grievdr said that he didn't reca[ how the tape got into his
pocket, and simply made, up that story at the time because it was "convenienti'.
2. The evidence of the grievor was that he had his hand on the tape while it was ~n
his pocket both as he was exiting out of the store and at the time of his
. apprehension. Given th6 size of a video tape it is virtually inconceivable thai. a
~erson would not be aw~[re of its presence in a coat pocket, especially when is
hand was right on it. Al.though the grievor may have been "distracted" at the [t~me
he put it into his pocket because he was watching Mr. Rope, once he left Mr.!Rope
in the restaurant and exited down the escalator to the first floor and out into ithe
mall, he was no longer p?occupied to such an extent that he could forget tha~.t, he
had an unpaid videotape. in his pocket.
-6-
3. Whether one was picking up a~videotape with the intention of returning it to
someone or simply holding it while pretending to be shopping, it is highly unlikely.
that one would place it in their pocket if they suddenly had to move, as the
grievor claims. The natural reaction would be to either drop it, place it back on
the rack, or keep it in one's hands. The concealment of the tape by means of
putting it in a pocket and placing a hand in the pocket, is only re. asonably
consistent with an intention to steal.
We therefore find on the evidence that the grievor did in fact steal the video tape. We.
should stress that we do so without regard to the finding of the Judge in the criminaI
matter.
Mr. Dalgleish, the Deputy Superinten~lent of ihe Hamilton wentworth Detention Centre
testified that conviction of any.criminal offence was sufficient grounds in itself for a
Correctional Officer to be discharged. However, the union led evidence of other Ministry
staff who had been convicted of criminal offenses, including impaired driving and theft,
who not only were not discharged but in many occasions were not even disc. iplined.
Mr. Benedict, on behalf of the Ministry, ' candidly admitted that termination for this
single offence of theft only was not appropriate.
The grievor's actiom were clearly off-duty conduct, and therefore before the employer
can impose any discipline for such an occurrence, it must show that in some way its
legitimate employer's intei'ests are affected by the conviction. The law is neatly
summarized in the following excerpt from Re Emergency Health Services Commission and
CUPE, Local 8~/3, 35 L.A.C. (3d)' 400 at pp 407 - 409:
"While the ¢ uestions set out above are to be generally applied i.d,
respect of c~es involving e.mployer discipline, the conduct which
provokes an'. employer's action in mos: cases arises from misconduct in
or around the worl~ place. It is fair to assert that an employe'.e's
personal life is his own an~d, generally speaking, what an employee may
i:lo on his o,.wn time away~trom the worI~ place ~s his own.busmes§ and
of no concern to an employer.
Canad.a, a[tiitr~a.to, rs have com. idered ~ ri~t of an employer.to[impose
a ~aenaity roi' ott-cluty misconauct: see Re t~eatty Bros., Ltd. and
LE.S.W.,-Loc'. 3789 (I953), 4 L.A.C. 1477 (Fuller). In Re Air Cafiada and
I.A.M., Lodge 148 ,(.1973), 5 L.A.C. (2:1) 7 (Andrews), the employer
Feated the ~.'evqr s coniAction for pOssemon of.rnarijuag..a
{unconnectecl witia thejob) _as a culinig, aping inciclent lustifxi.'ng
di.scharge.. In Re Air Canada, supra, the art~itrator ret[errea to Wo
o~er au~orities, each dealing w~th employers who had responded to
off-du_ty misconduct by eml~loyees: Re Dorr-Oliver, Long Etd. ahd
U.S.W~, LoC. 4697 (1973), 3 L.A.C. (2d) 193 (O'Shea), and Re ~illhaven.
' Fibres Ltd.,. Millhaven Works, and Oil, Chemical & Atomic Wo}kers Int'i.
Union, Loc~ 9-670 (1967), I(A) Uni¢.n-Management Arbitratioh Cases
_328 (Anderion). The following passage is taken from those awa~i'ds (5
LAC. 2d) at p. 8): .
"... if the discharge is to be sustair.ed On the basis of a
justifiable reason arising out of conduct away from t. he place
of work, ithere is an onus on the Company to show that:--
(1) th~ conduct of th.e grievor harms the Company's rep~Utation or proauct
(2) th~ gt'i_'evor's behaviour re~nders.the employee unable to p,e?form his duties satistactorily
(3) the gnevor's behaviour leads to refusal, reluctance
or i~a--bility of the other employees to work with him .
(;4) the grievor has been guilty o_-' a serious breach of
the iC'riminal Code and thus rendering his conduct
inju.'rious to.the general reputation of-the Company
ana ~its employees
(5) pldces difficulty in the way o~ the Company properly
Ca. ~rrxi.'ng out its function of efficiently managing ~ts
Woi:ks and efficiently directirg its working forces."
Another approach taken when considering the ability of an employer
to discipline an employee for off-duty misconduct was considered in Re U.A.W., Loc.
195 and Huron Steel Products Co. Ltd. (1964), 15 L.A.C. 288(Reville). The following
statement at p. 289 is useful:
It has been held in many arbitration cases that under
normal circumstances an employer is only r>ror~erly '
concerned with an employee's due and f/ithful observance
of his duties on the jolS. However, no hard and fast rule
can be laid down, and in each case the determination of
three questions of fact will determine the issue. These
are:
(1) Was the employee's conduct sufficiently injurious to
the interests of the emp. loyer?
(2) Did the employee act in a manner incompatible with
the due and t[aithful discharge of his duty?
(3) Did the employe.e do anything pre.iudicial or likely to be prejudicial to the reputation of the employer?
If~one or more of the above questions must be answered in the ..
affirmative on ali the evidence, then the company is properly
concerned with the employee's conduct regardless of whether it
occurred on'or off the company property or in or out of
working hours, and depending on the gravity Of that conduct,
the. company will be justified in taking appropriate disciplinary
action.
Arbitrators appear to be consistent in the approach that
while the onus rests with the employer, it need not
provide evidence of an affirmative answer to each of the
questions posed either in Re Air Canada, supra or Huron
Steel Products. Dependinl~ on the degree ofimpach any
one of the factors set out above may, In the appropriate
circumstances, warrant discipline or discharge of an
· employee: see Re Government of Province of British
Columbia and B.C.G.E.U. (1984), 15 L.A.C. (3d) 329
(Black)."
These criteria have been accepted in previous GSB cases, notably Gutierrez 419/80
(Roberts).
Applying the facts in the present case, we come to the following conclusions:
1. No specific evidence Was led as to how this conviction would harm the
employer's reputatio~ rather the Ministry simp;y asks the Board to
conclude that either t,h.e public or the inmates would think less of
the Ministry if they wire to continue to employ or fail to discipline
the grievor because he was convicted of a criminal offence.
However, in light of the clear evidence that the Ministry has not
only continued to employ other Correctional O:ficers who have been
convicted of criminal offenses, but also not subjected those
Correctional Officers % 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
County Correctional Centre and Canadian Union of Public Employees,
Local 1146, 19 LAC (.2, d) 325 at page 329 apply well to this case:
"I further cannot see how management's rep atation is
injured if the griev0r joins other guards with criminal
records."
2. Similarly there was no evidence which would lead us to believe that this
conviction would pre~ent the grievor from carrying out his duties
satisfactorily, at least to no more a.degree than ather Correctional
Officers with criminal~records. It is not re~istic to refer to a conviction
of tl~eft under $1,000.60 as a "serious criminal offence" as was done in
the grievor's termination letter in that, compared to other criminal
offenses, it is not a serious offence. Moreover, :he grievor does not in
the course of his duti~ have any special care or control over
- t0-
monies or Ministry property. In essence the offence is not related
to the grievor's duties to a significant degree. This case is
therefore unlike Re Emergency Health Services Contmission supra
where an ambulance attendant was convicted of an off-duty sexual
assault of a 13 year old female. In that case the offence was
closely related to his job duties in that he was required to
physically handle people in weak and vulnerable conditions. Nor is
it like the case of Re Etobicoke Board of Education and OSSTF
District 12 2 L.A.C. (3d) 265 (Swan). where a teacher was convicted
of conspiracy to commit an indictable offence, namely possession of
stolen property with a value of $60,000.00. In that decision iT was
held that a teacher has a special obligation, given the influence
teachers have over children, to teach and practice respect of the
law.
3. There was no evidence that other employees would not work with the
grievor as a result of his conviction.
4. As stated above, theft of a video tape from aLstore is not a "serious
breach of the Criminal Code". One should not forget that the Court
considered the offence serious enough only to impose a sentence of
a conditional discharge with 12 months probation.
5. There was no evidence that the employer would have any problem properly
carrying out its functions if the grlevor were.not disciPlined.
- ll-
We therefore find that with respect to the first ground referred to in the terminaiSon
letter, the grievor should no} have received any discipline.
II. GROUND TWO . MISIjSE OF HIS POSITION
The grievor was at pains to tell both the Sears security staff and P.C. Lee about
the fact'that he was a CorreCtional Officer involved in the observance of an ex-inmate
who was probably involved in the commission of an offence. It is unclear from t e
evidence wheiher or not he ~i, as doing this in order to create an alibi, which woul'
explain his "inadvertent" pl?/ng of the tape in his pocket, or whether he was hoping
that the se~rity staff and/oii the police would give a break to a fellow profession~at in
,
the law enforcement business. However, no matter wi/ich of these factors was th
grievor's motive, he improp~'ly put his employment status into the situation' the!~eby
causing a potent/al embarrassment or loss of prestige to his employer. This is an. offence
which is subject to some disc~phne, however certainly not discharge. Insofar as t e
grievor had a clean employrr~ent record, and was an employee of significant servl~ce, a
short susp. ension of three da~,s is appropriate. I.
III. GROUND THREE . RELATIONSHIP WITH AN INMATE
The employer relies on the fgllowing standing order entitled "Staff Involvement ~-ith
Inmates, Ex-Inmates, FriendS. ' and Relatives":
1. Policy
' In order to prevent staff members being accused of any conflict of
interest of possible breaches of securi~, staff .m. embers ~e not
permitteo to enter into any personal relationship, not in the
Iine. of dusty, with .a~y infn. ate, ex-inmate, h'iend, or relative
without ~trst receiving the written approval of tlae institutional
or branch head. (emphasis added) .
2. Procedure
2.1 In the case of the ex-inmates, their relatives or the relatives
of inmates and their friends, should the staff member wish
tp eng.age in a personal relationship, not in the line of
cluty, the staff member must discuss such situations as
soon as they_ are known to him with the institutional or.
branch head. The institutional or branch head will be tl~e
sole arbiter of what constitutes a conflict of interest or.
pqssible threat to securit3, in the aforementioned
relationships, and will advise the staff
m.ember.~ writing of his approval, or that the personal
remtionsnip is to be terminated. (emphasis added)
2.2 In actual implementation of this polio, staff wig submit a w~.'tten
report l~roviding details of the relationship to the Superintendent
sekled 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 relationship with an inmate or es-inmate, the matter should
be discussed with a member of senior start.
The only factual basis for this allegation was that the grievor's criminal lawyer caused a
subpoena to be served upon Mr. Rope p~'ior to the grievor's~ criminal trial, and that the
grievor failed to notify the Superintendent of this fact prior to issuing the sUbpoena.
However, there is no evidence that at the time Mr. Rope was served with the subpoena
he was in ~act in custody. Moreover, the policy prohibits a "personal relationship?
between the grievor and an ex-inmate and it would involve bending those words to the
breaking point if we were to find that instructing one's lawyer to serve a subpoena on a
person constituted a "personal relationship".
The only other evidence wM.,ch could possibly constitu:e a personal relationship was
Mr. Dalgleish's testimony th:at in the course of the predisciplinary meeting the grievor
admitted having spoken to l~lr. Rope while Mr. Rope was in custody and after th~
shoplifting incident. In supp~ort of this, Mr. Dalgleish .produced an excerpt from his
notes of that meeting which Isaid in the margin beside :he topic
"Relationship with Ex-Offender" the words "page 84 - yes, I spoke to him". Howe~ver, we '
do not find that the grievor }nade such an admission for the following reasons:
1. The reference to "page 84" is a reference to page 84 of the transcript of the
criminal trial, which is th~: portion of the testimony of Mr. Rope. Therefore, it.
seems that the notation ,d/as to sign/fy what Mr. Rove said, not what the grievor
2. This serious admission Was not referred to in the termination letter written b. Mr. Dalgleish three days]after the meeting.
3. Mr. Paul LaCoultre, thei.OPSEU.:_ represent'ative at the pre-termination meeti[ng
testified that when the g~.'evor was asked if he had spoken to Mr. Rope whiletin
custody, the grievor said 'no. The grievor also confirmed this in the hearing.
4. Under cross-examinatioh., Mr. Dalgieish stated that in the July 28th pre-disciPline
spoken to Mr. Rope while in custody, however
meeting, the grievor de~ed having . .
Mr. Dalgieish continued"to believe Mr. Rope's testimony instead. As Mr. Rope was
not called to testify in th~ arbitration hearing, we do not have the benefit of l~lis
evidence. :~ {-
- 14 -
Absent this admission, there is not a shred of evidence that the grievor even spoke to
Mr. Rope after the shoplifting incident.
Therefore no discipline can be imposed for the third allegation.
IV. CONCLUSION
Insofar as the only disciplinary offefice is the second ground, the following order is
issued:
1. The grievor is to be re-instated effective his date of dismissal with full
compensation and seniority, subject to the imposition of a three day suspension.
2. The grievor is to be entitled to interest on these amounts in accordance with the
decision of the Ontario Labour Relations Board in.Holl0wel House Ltd. (1980)
O.L.R.B. Rep. Jan 35.
3. This Board will remain seized of all matters involving implementation of this award,
and will also remain seized of the balance of the grievance not yet dealt with.
DA~/ED at Toronto this 5th day of .Februar~t991.
parrot. 15. Plsrler. vlce-¢nalrpersoi1
M. Lyons, Mehiber '
"I DISSgNT" (Dissent .attached)
R. Scott, Member
a~'l of the evidence 5n this case I was able to
considering
agree with my colleagues on this Board.that dismissal was the
appropriate penaltY, tHowever, it was, and is my view thatia very
substantial penalty i~ warranted where an employee, who i~ in a
much greater positiontlof trust than most other employees i found
guilty of theft, whether or not the theft is directly rel ted to
the employer's business
The employee in this case is a CorrectioNal Officer. who~ under
the law, is a Peace O~fficer and who is entrusted with the care and
custody of people who have broken the law. It is generally
accepted that there iS'a greater onus on such employees to obey the
law than there is on ~he average citizen.
Support for this!view is very succ±nctly expressed byl Beatty
in the case of Eriksen-GSB 12/75 where at P30 he states:
,,It is simp,ly SOL,ObViOUS that those persons
who are charged with the care and custody
of those who have transgressed the laws of
this country must not only be above reproach
'and suspicion but as well that they must be
seen to be' above reproach and suspicion .... "
it should also be noted that this high standard of co~duct is
spelled out for Correctional Officers at the Hamilton-Wentworth
Detention Centre in a~Standing Order Manual which is issued~ to all
staff and which was Submitted as an exhibit to this Board.~
One of the Principles espoused by the Institution and'set out
in the Standing Order Manual reads as' follows:
The emphasis should be on helping offenders
develop and maintain responsible and acceptable
behavior within the community.
It was'accepted by the court, and by this Board, that the
grievor was gui'lty of theft with intent~ if this fact is not
already known throughout the Hamilton-Wentworth Detention Centre,
it will be, I suggest, within days of the release of this. award.
I fail to see, therefore, how the actions of this employee will not
seriously.affect his ability to perform his duties, satisfactorily
or how his actions and. their affect on other employees will.not
place difficulty in the way. of the Ministry "Properly carrying out
its fUnction Of efficiently m~naging 'its works and efficiently
directing its work forces."
In support of his decision to waive all Penalty* for this act
of theft by the grievor, the Chairman of this' panel reliesheavily
on the jurisprudence as summarized in re Emergency Health Services
CommisSion and CUPE, Local 873, 35 LAE (3d) 400 at pp.407-409. I
suggest, with respect, that the jurisprudence has been wrongly
applied in this case.
*In fairness, it should be acknowledged that
the Board imposed a penalty of three' days loss
of pay on the grievor f6r using his position to
mitigate the Commission of a criminal act but no
penalty for the criminal act itself.
In his .award, on p.6, the Chairman takes the position that
before the employer can impose anvdisciDline for off-duty conduct
(emphasis added), it must meet the tests set out in the
jurisprudence referred to above. However, my understanding~L ~f the
jurisprudence is that it was clearly intended to apply ~ the
sustaining of discharge and does not preclude the substitution of.
a lesser penalty. This is borne out by the fact that ~.n the
majorityof the cases ~ubmitted to this Board, if the discharge was
not sustained, a penalty ranging from 2 to 12 months loss f pay
was substituted for th% discharge.
In further support of his decision, the Chairman points to the
fact that the criteria testablished by Anderson and others hay been
accepted in previous~, G.S.B. cases, notably GUtierrez- 19/80
(Roberts). He neglects to point out, however, that.a penalty'of
12 months loss of pay, !service and benefits was substituted r the
discharge in that cas~. 4.
In GSB 14/83 Edward Johnston (Verityl; a four months suspension
without pay was substituted for the discharge.
At page 9 of h~is award, the 'Chairman includes a short
quotation from the award of R.F. Ferguson in Re Cape Breton County
Correctional Centre and Canadian'Union of Public Employees, Local
1146. This was a case in which a correction&l officer was
discharged for the Off duty conduct of obstructing a olice
officer. The quotation reads:
I further cannot see how management's
reputation is injured if the grievor
joins 0ther~guards with Criminal records.
· Let me say that While I agree'with the basic premise 'Df the-
quotationinsofar as'~t applies to the penalty of discharge'- this
was, in fact, one of the reasons why I was prepared to agree to the
reinstatement of the grievg~ - I do not think that i~ speaks to the
question of what is an appropriate penalty to substitute for
discharge.
A much more pertinent passage in M. Fergus0n's award, and one
that goes directly to appropriate penalty, is the one at p.330
which reads:
I find that the conduct resulting in the
criminal conviction of the grievor is not
just cause for dismissal. I do, however,
find that it was cause for disciplinary
action. The griever is a ~uard at a
Correctional Centre. off-duty or not he
holds a position where the character and
reputations of he and his employer are an
important element. He therefore carries more
of a duty to his position and his emplover
re~ardin~ an alteration of the kind which
happened with Officer Collins than your
average citizen.
Therefore, in my vi-ew, the fine of $200.00 was
not adequate disciplinary action in Mr. Power's
case, not Would it be a sufficient deterrent
to those in his Dosition who would follow in
his foo~steDs.
I find fair and equitable in this instance
'that Mr. Power be suspended, without pay, for
a period of four months.
(emphasis added)
. In my opinion, it is this' second quotation, not the first,
which applies well to the case before.us. In fact, I think it
could well be used as the standard in cases which involve
Correctional.Officers, Police Officers, School Teachers and other
positions where the standard of conduct both off-duty and on-duty
is of a higher level 'than your average citizen'.
The Chairman of our panel also relied on the fact that the
Ministry has continued to employ other Correctional Officers who
have been convicted, ~f criminal offences without applying any
d~scipline to these employees.
The evidence in'Ithis case establishes that the criminal
offences for which these other Correctional Officers were con icted
were alcohol-related offences, as Was the.case in the Cape Breton
County Correctional C~ntre deCision refer~ed to above. ,
Without in any ~ay minimizing the seriousness of alCohol-
related offences, I ~uggest there is a signifiCant diff rence
between such offencesland one where there was a deliberate ~ntent
to steal the property of another. In alcohol related o ences
'there is sometimes an element of inadvertence an absence of
intent, where the individual is not aware that he or she isI above
the legal blood/alcohol limit. There was no evidenCe in th~s case
that the individual~ iwho were returned to work in the Mi!nistry
after being convicted kor alcohol-related-offences, knowingl~ brok~
the law.
These cases are ~uch different, I suggest! in·reflecti!ng the
honesty and integrity!of a person than one in which an individual
is found guilty by the court, and by this Board, of a deliberate .
intent to steal'and, ih the case of this griever, continues .o.deny
and cover up his guilt by concocting a story which neith r' the
court nor this Board found believable.
Furthermore, arbitrator Ferguson in the Cape Bretont case,
supra, noted and appeared to accept to a degree, the distinction
between alcohol-related offences and another criminal offence. Not
:
to the extent that he was prepared to uphold a dismissal but to
the extent that he substituted therefor, a substantial penalty of
four months loss of pay.
· Comments in two of the other cases submitted to the Board also
warrant repetition.
The first is the case of Ville de Granby et la Fraternite des
Policiers de Granby (unreported) where the arbitrator H. Frumkin
stated:
The position of a law enforcement officer
differs from other employment as regards
the standard of conduct that will be
required of an incumbent in such a position'.
The conduct of such a person, whether on or
off duty, may be the. subject of scrutiny.
Such conduct, where it places in doubt the
integrity, honesty or moral character of the
Police Officer~ may weaken his effectiveness,
cause embarrassment to the Police Force of
which he is a member, and may as such be quite
incompatible with his position.
'It is worthy of note'that the dismissal of the Police Officer
was sustained in that case~
The second case, one that Qas referred to by the Chairman in
his award, is that of Etobicoke. Board of Education and OSSTF
District 12, 2 L.A.C. 3(d) 265 (swan). Where it was held that "It
is fundamental to the educational process, as we see it, that
teachers~are seen not only to teach students but to practise,
within reasonable limits, that'which they preach." The dismissal
was also upheld in that case.
The Chairman of our panel takes the position that the
Etobicoke Board'of Education is not like the case before us. I
suggest, with respect, that the cases are very much alike. One
might argue about the level of the sDecial obliqation as between
a teacher, a Police O~flcer and a Correctlonai Officer but! in my
view, there should be no argument that all three hold po~itions
where, to paraphrase arbitrators Ferg'~son, Swan, Frumkih and
Beatty.there is a special obligation to refrain from conduc~,, both
on and off duty, which suggests to the people in their care that
participation in a crime is excusabl~ or which places i doubt
their' integrity, honesty or moral character.
In summary, in ~he cases cited,.the penalty for unacceptable
off-duty conduct by.employees whose p°sit±ons call for higher
standard of conduct, than other' employees ranged from foui, months
loss of pay to discharge.
By contrast, the majority Of this Panel finds t~at the
griever, a Correctional Officer, should not receive any di~c~pl~ne
whatsoever for his.o~f-duty crime of ~tkeft under .$1,000. I'.
I ~greed with.my-colleagues that dismissal was inappropriate
in all the circumstances. However, I hold strong yl to - e v~ew
that a lengthy suspefision, without pay, 'woul'd have been a just and
reasonable penalty..
It is my position that the Board should have exercised its
power under Section 19(3) of the Crown Employees Collective
Bargaining Act to imPose such a penalty.
J.'R. Scott