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HomeMy WebLinkAbout1989-1674.Fraser.91-06-11 ONTARIO EMPLOY~'S DE LA COURONNE CROWN EMPLOYEE$ DE L'ONTARIO GRIEVANCE C~OMMISSION DE SE'n'LEMENT REGLEMENT BOARD DES GRIEFS 180 OUNOA$ STREET WEST, SUITE 2700, TOROt4TO, ONTARJ'O. MSG 1Z~ TELEPHONE/T~_L~PHONE.. (4?6) 326-;358' I.~0, RUE OUNDA$ OUEST, SUREAU 2~'00, TORONTO (ONTA,RtO). M5G 1Z8 FACSIMtLE/T£L~COP/E : (4 ~6) 326- ~396 1674/89, 1675/89, 1684/89 IN THE MATTER OF AN AI%BITRATION Un,er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Fraser) Grievor The Crown in Right of Ontario (Ministry 'of Correctional Services) Employer BEFORE: N. Dissanayake Vice-Chairperson I. Thomson Member D. Montrose Member FOR THE H. Law GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE W. Thornton EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING: May 8, 1990 November 5, 6, 19, 20, i990 2 DECISION This is a discharge grievance. The grievor, a correctional officer employed at the Young Offenders Wing of the Metro West Detention. Centre was charged by the employer with the following allegations: (1) That on Friday, December 1, 1989, you compromised your professional integrity as a correctional officer by engaging in inappropriate physical contact with a young offender under your supervision; and (2) That on Friday, December 1, .1989, you failed to follow proper institutional procedures concerning the drawing and returning of penthouse keys; and (3) That on Friday, December 1, 1989, you entered the penthouse area without proper authority. Following an internal investigation, on December 20, 1989, the Deputy'Superintendent Ms. C. Mahaffy issued a letter in which she concluded that the allegations were substantiated and discharged the grievor effective December 20, 1989. While the letter of discharge itself finds all three allegations to be substantiated, when asked by Ministry Counsel whether she would have discharged the grievor if he was guilty only of allegations (2) and (3), Ms. Mahaffy replied with no hesitation that in that event the grievor wouId have been "dealt with- verbally or by letter of counselling". In keeping with this testimony, during his submissions Ministry Counsel took the position that if the ~ · '3 only misconduct established was that in allegations (2) and (3) that would have only resulted in counselling and that the B6ard ought to decide the issue~of just cause for discharge "without regard to allega%ions (2) and (3)". During the course of the hearing, at the request of the parties the Board took a view of the venue. At the ~ompletion of the hearing on November 20, 1990, the parties agreed that, if possible, the Board should issue a "bottom line" decision expeditiously, with reasons to be issued at a later date. Accordingly, by decision dated 'December 3, 1990 the Board unanimously made the following conclusions: (1) The Employer has'not established any culpable conduct on the part of the grievor as would attract any discipline with regard to the second and third allegations set out in the letter of discharge dated December 20, 1989. These related to the alleged failure to follow proper institutional procedures concerning drawing and returning of penthouse keys and the alleged entering of the penthouse area without proper~ authority. (2) The Employer has'also failed to establish that' on December 1, 1989 the grievor engaged in inappropriate physical contact of a sexual nature with a young offender. (3) The Board finds however, that the grievor used extremely poor judgement in allowing himself to be found' alone in an isolated area 'with a young offender in the circumstances that existed on December 1. His conduct was contrary to the institution's policy which was within his knowledge -and therefore culpable. 4 The Board directed that the grievor be reinstated with full seniority and compensation. The discharge was rescinded and a penalty of a written warning was substituted for the culpability found in the.third conclusion above made by the Board. As already noted, the employer does not rely on allegations (2) and (3) as a basis for the grievor'-s discharge. In any event, the Board in its decision dated December 3, 1990 has made a finding that no culpability .had been established in that regard. Given the employer's position, we do not intend to deal with those allegations any further. What follows are reasons, for the Board's finding that no just caus~ for discharge existed on the basis of the employer's first allegation, and for substituting a written ' ' warning as an appropriate penalty. The allegation formulated, and found to have been substantiated, was that the grievor engaged in "inappropriate physical contact with a young offender" under his supervision. As the hearing pro.gressed it became clear that it was the employer's conclusion that the alleged physical contact was inappropriate because, it was physical contact of a sexual nature. While the Board heard substantial evidence on a number of peripheral matters, we found that evidence to be of no 5 assistance in deciding the only matter that in our view is significant, namely, what went on in the penthouse storage room at the time Mr. Mayes happened to walk by. Accordingly, we will restrict our review of evidence to that issue. On December 1, 1989 the grievor was assigned duties as auxiliary officer in the Young Offenders Wing. Since he had. some time to spare between his regular duties the grievor decided to do "clothing shortages", i.e. to fetch clothing for the young offenders still required after the clothing issue which had taken place the previous day. To assist him in this task, he signed out young offender S. The evidence is that there was nothing unusual about the grievor's decision to do the clothing shortage or his decision to recruit a young offender (hereinafter identified as "$") to assist him. in order to obtain the clothing, the grievor proceeded to the penthouse where, among other things, extra clothing is stored. The dispute is as to what occurred after the grievor and S had entered the storage room in the penthouse, which is also referred to as the cage, because its walls and ceiling are made of wire mesh. .Mr. Sam Mayes was employed at the Metro West Detention Centre as a maintenance mechanic. He testified that as part of his job he toured the facility several times a day to check the functioning of heating and cooling equipment. He 6 testified that on the day in question, he was on his routine tour. When he entered the penthouse area he noticed that the lights were on and the cage door open. He immediately concluded that someone was in the room. He testified that he walked up to the door from left to right, touched the door, and turned to his left as he looked into the room. He saw the grievor seated on a short table, (something like a large coffee table) with young offender S seated on his lap. S was positioned with his back to the grievor and they were both facing the door. Mr. Mayes testified that both the grievor and S were fully clothed and that the grievor had his hands around S's waist. According to Mr. Mayes, when he appeared at'the door, S "jumped up and moved away" w~ile the grievor remained seated on the table. The grievor said something'like "how are you today". Mr. Mayes said "fine" and walked on past {he cage door. Mr. Mayes testified "I was embarrassed to see two people like that. I was shocked. My first thought was I didn't See it, I should get out of here~. He testified that by instinct, he walked over to the switch panel to the right of the cage door, touched the panel door and turned to his left and looked into the cage room again. He could see S standing and the grievor still seated on the table. He then proceeded down the stairs and out of the penthouse area. The grievor was employed as a correctional officer since July 1985, and since late 1986 was on staff at the Young 7 Offenders Wing at Metro West Detention Centre. He testified that on the day in question around 9:00 a.m., he asked the Sargeant on duty Mr. Nelson Cardoza, if it was alright'if he took a young offender to.the penthouse to get some clothing because there was a heavy laundry 'shortage in 4 B wing, and that Mr. Cardoza said "sure" and "tossed" his the keys to the key press (a metal box) where the-key to the penthouse is kept locked up. The grievor testified that having obtained the key he proceeded to the 4 B wing. There were four young offenders at the door including S. S asked the grievor whether there was anything for him to do. The grievor talked to the desk officer, completed the necessary paper work and booked out S. The grievor testified that he.proceeded to the penthouse with S. He unlocked the '~oor ieading up to the penthouse and left it open. Then he turned all the lights on, unlocked the cage door, left it also open, and entered with S. There he instructed S as to what the laundry requirements were. According to the grievor as S was gathering the laundry, he told the grievor that he had been doing weight training as suggested by the grievor but that he found it difficult and had not developed any muscles either. The grievor responded that once he gets out from jail S should get into wrestling. S told the grievor that while he had done some wrestling at 8 high school he had not seen a "sleeper hold" which he had heard other young offenders talk about. The grievor testified that the sleeper hold can be dangerous in that if applied tightly it Can cause a momentary blockout. He had also heard that some young offenders had used the sleeper hold on others. Therefore he wanted to show S what a sleeper hold was so that he would know not to allow anyone to try it on him. In order to demonstrate the sleeper hold, he stood behind S with both facing the open cage door. Then he placed his right forearm on S's right shoulder and curled it halfway in. He placed his left hand behind S's left ear. Then both of them came to a .semi-crouched position as the grievor applied light pressure with the sleeper hold. In addition to contact of the grievor's arms around S's head and shoulder area, his right thigh was touching S's left thigh. According to the grievor it was at this moment that he saw Mr. Mayes by the open cage door. The griegor testified that 'as he said "hi! How is it going" he released his hold on "S". He conceded that his sudden release of the hold may have caused S to jump forward. The grievor testified that Mr. Mayes proceeded to the left of the door and that he did not see Mr. Mayes again. Thereafter, he gathered the clothes S had put together, locked up and left with S. 9 The evidence indicates that Mr. Mayes mentioned to a fellow worker that he had seen a correctional officer with a young offender seated on his lap. Through that employee, the management became aware of Mr. Mayes' observation. Mr. Mayes was recalled to the institution that evening and questioned. A formal investigation was launched through an investigator. The grievor was also interviewed and suspended with pay pending the completion of the investigation. The investigation included interviews of Mr. Mayes, the grievor and the young offender S by a Ministry Investigator. At the interview with the investigator and at a subsequent meeting with ~mployer representatives the grievor had insisted that he had been demonstrating a sleeper h~ld to S and that Mr. Mayes had misconstrued what he had seen. .The grievor denied from the first time he was confronted, that S had not been sitting on his lap. Based on the~ information gathered through' the investigation Ms. Mahaffy made the ultimate decision to discharge the grievor. During her testimony Ms. Mahaffy gave two reasons which caused her to believe Mr. Mayes' version of what occurred. First, she could not see a motive for Mr. Mayes to fabricate'a story implicating the grievor because at the time.he did not even know who the grievor was. Secondly she did not accept the grievor's explanation because the grievor had a reputation as a very good correctional officer. 10 She was aware that there was a concern within the institution about young offenders using the sleeper hold on one another. She could not believe that a good officer like the grievor would teach such a dangerous tactic to a young offender. As she put it "I did not accept that Mr. Fraser as a good correctional officer will show a young offender how to use a sleeper hold any more than he will show a young offender how to make a weapon". Ms. Mahaffy testified that conflicts in the grievor's story also influenced her decision. Firstly, the grievor indicated at a meeting with management that he had S clean up the 4 B area floors before taking him up to the penthouse. Subsequently he told'the investigator that the cleaning was done after the visit to the penthouse. Secondly, in his statement S had indicated that before proceeding to the penthouse laundry room, he had visited the institution's main laundry with the grievor. The grievor hsd not mentioned that in his statement. Ms. Mahaffy admitted that she had read S's statement made during the investigation, in which he states that he was not sitting on the grievor's tap and essentially confirms the grievor's version of what happened. However, she put no weight on it because in her view "it is not the norm for inmates to point a finger at a staff member." Just as he testified at the hearing, the grievor had maintained during the investigation that he had obtained the penthouse keys from Sargeant Cardoza around 9:00 a.m. on December 1st. However, Mr. Cardoz~ denied that. The log for. the key had an entry that indicated that the key was issued to the grievor at 1:35 p.m. that day but had no other entry for 9:00 a.m.. The alleged incident occurred at about 9:30 a.m.. This caused Ms. Mahaffy to believe that that morning the grievor had taken the keys without permission and from that concluded that the grievor had "given thought to what might take place when he got to the penthouse with S". In other words, she concluded that the grievor's misconduct was premeditated~ Both counsel agree that the misconduct alleged is very serious and in the nature of criminal conduct, and that therefore the alleged conduct must be established by clear and cogent evidence. Upon a review of all'of the evidence the Board concluded that there is no clear or cogent evidence to establish on a balance of probabilities that the grievor engaged in some form of sexual misconduct by having S sit on his lap. The employer's whole case depended on the observation of Mr. Mayes. What influenced the employer's decision mostly was the fact that Mr. Mayes had no motive to concoct a story. While we also have no reason to conclude that Mr. Mayes was deliberately fabricating his allegation, we find it very plausible that he may have misconstrued what he saw. He only had a fleeting glance .into the room when he made the observation. He testified that it was "not normal" for a correctional officer and a young offender to be in close bodily contact, that he did not expect to see that when he looked into the room. It is very plausible that in this frame of mind when he saw the grievor and S in close bodily contact Mr. Mayes jumped to the conclusion that the grievor was engaged in some sexual misconduct. While Mr. Mayes testified that he saw S seated on the grievor's lap) the evidence indicates that Mr. Mayes' observation was not as clear as the employer makes it Out to be. Thus when first asked by the employer where the grievor's hands were positioned at the time of the observation, he said that he did not know. Then when he'was asked the same question by the investigator he said that the grievor's hands were "at his sides". During testimony he said that the grievor had his hands around S's waist. On the basis of the whole of the evidence, we have concluded that on a balance of probabilities, it is more likely that the grievor's version of what occurred is true. There was nothing unusual about a correctional officer taking 13 a young offender to the penthouse area to do laundry shortages. The grievor duly booked the young offender out of his unit. He left the penthouse door and the cage door open and had all the lights on~ Mr. Mayes testified that the open door and lights turned on was a signal to a passer-by that someone was in the cage room. What all of this indicates is that the gri~vor did not take any steps to hide the fact that he was in the cage room with a young offender. If he was intending to engage in sexual misconduct, it is very unlikely that the grievor would have acted as openly as he did. It is understandable that a sargeant cannot reasonably be .expected to keep ~rack of all the key issues by memory. It. is. for 'that reason that the institution's procedures require that the sargeant enter on the log the various key issues. However, th9 evidence is clear that the key press log was not kept accurately by Mr. Cardoza in that he did not enter all key issues.' He admitted under cross-examination that on that very day he had issued the laundry key to another. correctional officer but did no% enter it in the log. Accordingly, the log is not reliable as evidence of the key issues that may have occurred on any given day. Given that the Grievor was not secretive in any other way about the fact that he was taking S up to the penthouse laundry, we cannot conclude that he obtained the keys in some unauthorized way 14 because he had planned to engage in some misconduct once he got to the penthouse with S. The Board also heard evidence from practically every witness that the grievor was the outgoing type of correctional officer, that he was very friendly with the young offenders even to the extent of being on "first-name" basis. The evidence also indicated that he was interested in sports and that he 'regularly engaged in sports activity with young offenders. This evidence is consistent, with the grievor's story of how he had been advising S about physical-fitness and how he came to demonstrate a wrestling hold to $. The evidence also is that both the grievor and S were .... fully clothed at the time and none of their clothing was open. Nor did Mr. Mayes see .any obvious sexual act such as the touching of genital areas. All he claimed to have seen was s sitting on the grievor's lap. We find it strange that if the grievor intended to engage in sexual activity, he would sit on a table with s sitting on his lap, while they were both fully clothed. Whether.we accept that the grievor's hands were at his sides, or around S's waist as Mr. Mayes claimed during testimony, that is more consistent with the grievor's version of what he was doing rather than indicative of some sexual activity. We also fail to see the significance in the conflicts in the grievor's account as to whether the cleaning was done 15 before or after going to the laundry and whether or not he visited the institution's main laundry that morning. The grievor admitted throughout that he was in the cage room with S at the time Mr. Mayes claimed to have seen them. The only dispute was as to what he was doing with S at the time. We fail to see how lying about the time of cleaning or about visiting the main laundry would help the grievor to convince anyone that at the time Mr. Mayes observed him, S was not sitting on the grievor's lap, but was involved in a demonstration of a wrestling hold. It was for all Of the above reasons that we concluded that the employer had failed to establish on 'a balance of probabilities that the grievor had engaged in inappropriate physical contact with S in the sens~ of sexual misconduct. And it followed frdm that finding, that the employer had no Just cause for the discharge of the grievor. Nevertheless, we have concluded that demonstrating a sleeper hold to a young offender in a secluded area was a very poor judgement oh his part and justified some corrective discipline. Even if he had not read the memorandum issued by the employer, he should have known - and he admitted it under cross-examination - that engaging in such close physical contact With a young offender with no one else present, was 16 Contrary to the institution's policy. He should specifically have known that by so doing he was exposing himself to allegations of misconduct by the young offender. The grievor showed reluctance to admit that it was very poor judgement on his part. It was for those reasons that the Board decided that it is appropriate to impose a written warning for engaging in close physical conduct in the course of showing a wrestling hold in an isolated area. The Board hereby confirms the bottom line decision rendered on December 3, 1990 and makes the followin~ remedial order: (1) The' grievor is to be reinstated in his former' position with full compensation and no-loss of seniority. (2) The discharge of the grievor is rescinded. Any reference to the discharge or to any of the three allegations, which formed the basis of the discharge,I and which we have f. ound to be unsubstantiated by the evidence, shall be removed from all files. (3) A written warning shall instead be placed on the grievor's files with respect to the culpable conduct established, namely, engaging in close physical contact with a young offender in an isolated area contrary to the institution's policy. The Board will remain sgized in the event there is disagreement as to the implementation of this a~ard. Dated this llth day of June, 1991 atToronto , Ontario N. Di~sanayake Vice-Chairperson ~' I. Thomson ...... Member D. Montrose Member