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HomeMy WebLinkAbout1980-0491.Rushton.81-10-02IN T?iE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTL'MENT BOARD Between: -- Griever DECISION In 1980 the grievor, Mr. T.F. Rushton, was a P?O2 (Drobation and Parole Officer) with the Ministry of Correctional Services, working out of the London office. He has grieved against a five-day iuspension imposed on him in June, 1980, by iXr. I(. Delgaty, the area manager of Probation and Darole Services. There are twa issues: whether there was misconduct by the griever Which justified disciplinary action, and if so, whether the penaltp was appropriate in all the circumstances. The material facts were established by the testimony of Ms. Thery Preston, Team Leader at the Western. Ontario Therapeutic Community Hostel, and by LXr. Delgaty, as well as by the grievor himself, and by several documents. , As a PPO, the grievor was responsible for the super- vision of about 30 parolees and also for the preparation of a dozen or more pre-sentence reports in each month, .Qong the parolees entrusted to his care was one John Hayes, who had been granted bail pending disposition of charges against him of assaulting a woman, breaking and entering and theft. Hayes was also on probation, following his conviction in Toronto for an earlier offence. -3- The conditions of the bail order, Exhibit 4, made on February 20, 1980, were that the accussed was to appear in court two days Later for a remand; he was to report each Sunday to the Police, he was to abstain from using alcohol and any non-prescribed medical drug, he was not to,associate with any witness involved in the charges against him, he was to con- tinue attending the,Western Ontario Therapeutic Community Hostel Program; also he was to continue residing in an apartment on Emery Street West (the home of his friend "Ellen") and remain there between the hours of 11 p.m. and 7 a.m. daily, as well as keeping the peace and being of good behaviour. Not least, he had to find $1,000 in cash bail, which appears to have come from Ellen's slender resources. ~The case against .Xr. .'P.ushton is that he condcned or "encouraged" the ~client to use a fictitious address 'so that he could obtain welfare, for which he was ineligible while living with Ellen because she had a job and an income. The. griever's defence .is that it was not his idea ' there should be any fradulent application for welfare! but rather that Hayes live some place else after getting his bail order amended. He gave this advice to the client, who seemed reluctant to accept it. He also says it was not until some time later 'rhat he learned Hayes was Iusing a fictitious address, but would have to give it up because the "friends" who provided the fiction (for a cash consideration) were moving elsewhere. The five-day suspension followed shortly after a meeting held by Mr~. Delgaty with the grievor on June 4. It was attended as well by a lawyer, Mr. Reginald Laing, the Union's staff representative in the London area, and by Mlr. Anthony of the Ministry. What transpired is set out with particularity by Nr. Delgaty in a memorandum dated June 6 and addressed to iM.r. Rushton, which concludes by imposing the sus- pension. This document corresponds closely with the testimony given by Xr. Delgaty at the hearing before this Board and makes clear the employer's position in respect of the grievor's alleged misconduct. It is as follows: \ I iave hcd an opportunity to carefully ?e2iew the facts and allegations surrounding your mperuision of the client, John Bayes,. ,my considerations I wouLd now Tiice to share with you and my judgement in this matter. As of February 20, 1380, this ctient was aimuZtaneonsZy under c probation order (supervised by yoni and a 5~ail release order,. You were mar9 of the conditiom of his. bail r’elease, one of which spec?fied tirat.he Ztue. at 165 uhmery Stneet F. in the resideme of his girl -friend wit?. lvhom the client co-Xahited. On ilarch 1Q, 13~8Q uozl iin d the client discussed ldaring an o.F.f+e 9isitL t’u client~s lack oj money. .Zis girlfriend and he did not have. enough, money tc live (for various reasonsi; he was- Inetigi,ble ;-or weli*are assistance as her income ivos considered sufficient for their support. ?on suggested t?iat iie moue to a room in order to be eligible for welfare. You and the client cgree thct at this pcint, the client ezpressed c concern about be?:ng able to move because ha WCS >eStF7:cfea 3Y the bail order. YOU olcin that YOU duCss,d tTi% client to con:act his lawyer, .and tizat your claim that he :ouZd moue, the ctient repxsed’to rlcce?t review hearing. subject to a subseqnent bciZ -. 5 - The client c2aims ‘that, at this point,~ you and .he mutually agreed that it siould be appropriate for the client to set up an “arrangement” ;with friends, whereb~y he cojuld use their address for the purpose of ‘collecting welfare, but could in fact continue to 2ive i)ith his girtfriend. This you have denied. Short2y ay’ter this meeting, the c2ient diid, .in fact, begin to co22,ecf wel.fare. Se had an arrangement with two fr<:ends Tdhereby he laid them an hot?orariitm to be abts to use their address fbr the purpose of co22ecting w,elfare, tihen he ‘ias, in fact, continuing to reside tiith his girS,fr<end. You claim that you did not become aware of this arrangement until approximately May i, 1380, irhen you con- ducted a home’ vJ;,sit. You indicate that there ljere a number o.f telephone contact; between th2 period 0-f ?4arch 10, i330 to llay I, 1380, but you do not appear to have inquired as; to how %he client had resolved the financial crisis of ?4arch i0, 1380. I wouid point out that your travei e.zpense c2aim for April includes a home visit to John Jayes on April 17, 1380. 1ou and Titers is no home uisit recorded for May 1, 1980. Che client agree that at the time 0’ your home aisit (on April 17th according to your expense claim; May ist according to your recoLlectionl, the client advised you that he would be unabZe to continue the “arrangement” he had cstabtiahed for collecting ~eZjare, because his friends were moving from their address. ’ You 3tate that at that qoint you advised him that .he shouZd now move t’oa room in :ne core area, and thar he should subseqsentiy contact his 2atiyer regarding a bail review hearing. 3 note that you have stated that as of the date .of your home visit, you knew o[ and condoned the wetfare fraud. You suggested to the cLient that this arrangement could continue until he had obtained n new address. 3n May 2, 1380, Thery Preston, a social. rJorker from _ the YesGsrn Ontarqlo Therapeutic Community Joste’2, tdho had -1so been invotved with the client, telephoned to e;rpress ‘A her concerns about this client’s situation - specifical2y %hat~he cupeared to be vulnerabZe to a chdrge of either wetfare f>aud or breach,of his bai2 release order. According to you, in your conversation with her, you agreed that you knew of and condoned the welfara fraud, as you fe2t it was in this cZient's best interest, ?he socia2 worker expressed concern that their agency couid not condore this sctuattor.. In resvonse, you. indicated tirct you gou2d, and subsequentZy, you dkd contact the c%‘:snt’s lawyer, Mr. 7. Libis. The allegation ct hand is that you advised and encouraged John Bayes to defraud *wetjare. “hers appears :o bs one important area of r-act which i3 disputed - whether or not, at your meeting with the client on f4arch 10, 1330, you suggested to him or collaborated with him in estnbZishing the arrangement uhereby he defrauded welfare. I accept your assertion that you did not give him such advice on that ocoasion. ?7evertheLess, you do admit that at the time of your /rome visit, you became aware 0:’ the veljare fraud and encouraged the client to continue in this arrangement until he could devise an alternative. It was not unti2 you recetved a cat1 from Thery ?reston, the social worker, that you took correctivs.action. Your handZing of the supervision 0.~ this client\has a2aced our Service in an extremely vuir.erabZe position. kad this matter Zed to charges against the nliint, encouragement 0:’ t yo’ur he weTfare jraud :would .have been enor,m- ous2y embarrassing to our Set-ice. seriously impaired your ability As it stand-s, you have to work ej.~ectiVely With an important communtty resource, the Western Ontario Therapeutic Community aoste2. lou have, moreover, compro- mised your position as an ofiicer OJ- the CoTurt; and have, in my opinion, violated a fundamenta2 ?recept of our work - that we ui2l observe and comply with the laws of Canada. I remind you that this Is the Cath of Office which you ” undertook approximately I3 years ago. I have taken into consideration your claim that you jeZt that your action was in the client’s best interest. I have a2so taken into consideration your length oJz service, and the fact that this is the this jirsf documented incident or nature, I find .that you did encourage John Bayes to co‘ntinue deiraudtng welfare b,y knowing of and condoning that fraud. I am hereby removing you from smpZcyment, without~ pay, for a oeriod of fLve days, June 9, 198O’to June 13; 1380 inctuslve. Iam obliged to inform you fhaS should a simi2ar incident occur, you may 3s liable to f?trther dig- cipZine, not excluding dismissa7. It is noteworthy that in the seventh paragraph of the foregoing memorandum -Mr. Delgaty accepted the griewx's denial that he, had advised the client to adopt "the arrangement whereby he defrauded welfare." Mr. Delgaty did, however, emphasize that the grievor had become aware in April of the welfare fraud, which he said was "encouraged" by the grievor. The grievor denies admitting encouragement, although he did admit knowing at some point about the arrangement. The evidence of Ms. Thery Preston explains how the matter came to the attention of Mr. Delgaty. She is a Registered Xurse who for the past two years or more has been Team Leader at the Westezn Ontario Therapeutic Community Hostel, after three years of experience in a psychiatric hospital. She lnay be described as a social worker and therapist because the Hostel deals with mental health problems and "transitional cases", including those of parolees. Funded by the Ministry of Health, <the Hostel inust main- tain contact with various services including those of the local welfare office. In her testimony, ,"ls. Preston emphasized the need to retain the confidence of welfare officials; many of the patients referred tc the Hostel are welfare.recipients. In April, 1980, the client Hayes was assessed at the Hostel and interviewed by Ms. Preston. He had been thought eligible for admission to the Hostel3 program. Hayes showed her the bail order specifying he must live at the Emery Street address. .However, on May 2 she was told that her staff had a different address. At a meeting the same day, he explained he was using the other address so that he could receive welfare. I Ms. Preston was alarmed; she saw a definite possibility that Hayes' parole officer or even the Hostel could be involved or appear to~be involved in a fradulent arrangement. She telephoned ?lr. Rushton to express her concern, pointing out that the client was either breaching his bail order or defraud- ing welfare. She testified it seemed to her that Mr. Rushton was aware of the situation "and had some difficulty understanding my dilemma." She could not recall his exact words, but ?lr. Rushton had said the client needed money, which she could under- stand, "but I thought it left the client in a catch-22 situation --- either defrauding welfare or breaching the baii order." She felt he had to get the bail order changed. Her position was that she could not keep Hayes as a client or, patient at the Hostel if he~was again at odds with the law. MS. Preston took the matter very seriously: she was "worried over the weekend." MS . Preston telephoned IX~. Delgaty on or about May 5, did not explain the problem, but arranged an interview May 14. As a result of that interview .Xr. Delgaty conducted his own investigation, interviewed the client Hayes and summoned i%r. Rushton to the meeting of June 4. He also asked for a letter I from Xs. Preston explaining her position, Exhibit 3, which, however, was not actually written until June 9 --- after ?W. Delgaty made up his mind and imposed a suspension.. -9- In cross-examination, Ms. Preston said she "agreed with the plan to a certain extent," i.e. the plan to get the bail order amended. She talked again to Hayes; who was then to see Mr. Rushton and his lawyer. She warned Hayes he could not stay in-the Hostel's program unless there was a change. She admitted taking'part in a scheme to correct the problem by ,getting the bail order amended. This, she thought, would solve her, dilemma. The client could take his choice --- either to "level with weifare and legitiinize the situation,'or leave our program." MS. Dreston said she considered Hayes a violent character who was managing'to keep control very well while: taking part in the Hostel's program, which he left a few weeks later to return to prison. _ , It appears that Ms. Preston's initiati\ve brought 'about an immediate change. After speaking to .?W. Rushton,'she saw Hayes again the same day and made sure steps were taken at once to get the bail order amended, as it was. She was not sure at the time whether Hayes was yet receiving welfare, but what she did have was his'"explana‘tion." 8 The only explanation really was that he needed money. Like Xr. Delgaty, she did not report the matter to the local welfare office. \ It is-significant that, according to ;W. Delgaty's ’ I testimony, of about 1,000 clients under parole supervision in his area, an estimated 350 are unemployed; of these he thinks that perhaps 100 or more are on welfare. Most are between the ages of 16 and 25. Mr. Delgaty said a PPO is an officer of the court, his duty being to assist the client to obey the conditions,of his parole and if necessary enforce them. Mr . Rushton had taken the required courses, including a course in law,,and had passed,the examinations. He was strictly speaking not respon- sible for enforcement of a bail order but he did have an obligation to prevent violations of the law. It was unusual for the client to be.living at the same time under both a pro- bation order and a bail order. I With reference to the grievor's record, LMr. Delgaty said he was an innovative and enthusiastic officer, adding that "in terms of motivation you couldn't get a more motivated officer." There had been improvement in his work during the past year, although he had been disciplined on more than one , occasion for what were considered to be improper reports. In cross-examination T&r. Delgaty agreed he had taken Mr. Rushton off the Hayes case in Nay and also conceded the - Y grievor had a "fairiy heavy work load, although he was not really any busier than the average parole officer." According to Mr. Delgaty, he had been told by Hayes that it was the grievor who suggested the welfare fraud. Never- the less he accpeted the grievor's version of the matter, at the same time concluding that the offence had been condoned or "encouraged." He did not discuss the matter of eligibility with welfare officers but was satisfied that there had been an attempt to deceive them, at least by Hayes. He did not report the problem to welfare officers at any time. It was his under- standing that Hayes actually became eligible for welfare at a latter date, having moved to a different address under the terms of the amended bail order. Xr. Delgaty was disturbed by the possibility that Hayes would be charged with welfare fraud and his defense might be that he had been advised to do it by a parole officer., Xr. Delgaty said there are areas where a parole officer has "some discretion," but there are others where he has none, for example, where he learns that the client is breaking the law. , ‘_ Finally, -3%. Delgaty made the following statement of opinion: "I think Rushton was attempting to promote the best interests of the client at all times. What happened here is that he weighted the client's need higher than his own responsibility." 1 .! . i i - 12 - In the light of the evidence outlined above, the testimony of the griever assumed considerable importance. It was to the ,following effect. Due to other responsibilities, he had ,only a few days each month to interview parolees. Some interviews were \ conducted at home: some at the office. When he took respon- sibility for Hayes, the man was still subject to a probation order made in Toronto and was also out on bail as a result of j more recent charges. He had a violent background and had given the grievor some examples, as did his friend Ellen. The grievor did not agree with the condition that , iIayes must continue residing with Ellen. She had bori-owed $1,000 with difficulty (presumably for Bayes' 'bail) sold some of her effects and had nothing left for ,the next month or two. She did hold a regular'job with an insurance company, but there was not enough income to support two people. As a result, said the grievor; "I advised him to seek welfare equivalent to his room and board costs. Her problems seemed greater than his. I advised him to mave. He objected, referring to.the bail con- dition: I said that was no problem, he could see his lawyer and apply to *&e court. Basically he didn't believe me. I told him to qet a separate address and use it in applying for welfare. He could even stay with her overnight on occasion. It would be . . . - 13 - an escape hatch..... It seemed to me like a perfect way of breaking it up." The grievor testified that when he visited the Emery Street apartment on April 17, Hayes said: "I did what you told I me. I've an address with friends, but I'm still staying here." Thereafter,.according to the grievor: "I indicated that's not what I advised. It was heated and emphatic. I insisted he make- a real move and he indicated that his friends didn't have room for him to stay there. I insisted on the move." The grievor described the call from Ms. Preston on May 2. "She asked if I knew Hayes was living at one place and claiming elsewhere. I attempted to be facetious and flip --- it was the first time it's happened --- and I told her I tried to persuade Xayes to get a job in t..e core of the city. As for a change in the bail order I thought it could be done. She explained her dilemma due to close links with welfare, and that she would have to inform welfare. She suggested we work with the client and explain that if he didn't make a change he'd be out of the program at the W.O.T.C.H. I thanked her and offered to contact Hayes' lawyer and appear in court." Prior to, that date, said the grievor: "I was stumped --- I didn't know how to get him moved...., Yes, I knew on April 17 he was getting money by telling lies. That's why I told him .1 . he was misinterpreting my advice earlier." As for the interview with Mr. Delgaty on June 4, the grievor testified he had not admitted encouraging Hayes to con- tinue his illicit arrangement. He had told Hayes to get another address and went so far as to say he didn't have to stay there everylnight of the week, but be didn't think it was possible he told Hayes to 'stay where he was until he could find another place. In cross-examination the, grievor said he thought Hayes I could get "partial welfare." In any event the address was changed quickly as soon as he could be persuaded to call his lawyer about it, which was not until *Yay. On April 17 he had failed to'persuade Hayes to see the lawyer about a move. "It was Ms. Preston's threat which made Hayes give in. My concern was to get him to move as soon as possible." In his argument, Mr. Benedict said the grievor is an experienced probation officer and of course knows ~that "law enforcement is more important than social work." It was clear the grievor learned of a welfare fraud on April 17 and did nothing about it for two weeks. This certainly constituted condonation. He could have consulted his supervisor and he could also have informed the welfare office. More important, he could have made it perfectly clear to Hayes what the consequences would be if 'he were again charged with a serious offence. He could have called Hayes' lawyer as early as April 17, but did not do so until May 2. This was culpable behaviour which called for a response on the part of the employer. In respect of the penalty, Mr. Benedict referred to the well-known case of Steel Equipment Co. Ltd., (1964) 14 L.A.C. \ 356, in which Judge Reville set out 10 tests which may be applied in assessing whether a disciplinary penalty is appropriate or inappropriate. On behalf of the grievor Mr. Nabi argued that the employer's approach was based on the presumption the grievor did "something wrong." He said Xc. Rushton had done everything he could be reasonably expected to do, and relied on the client to take his advice. He.had every reason to expect that the advice would be complied with., After all the man lhad a lawyer who could be expected to arrange an amendment of the bail order. In the result, when !layes was unto-operative, the grievor had no leverage to get the change legitimized until the W.O.T.C.H. got into the picture. 1Mr. Nahi emphasized that-the employer had never re+ ported the matter to welfare officers, apparently because Xr: / Delgaty did not wish to be embarrassed. He submitted there~was d i - - 15 - ’ really not a scintilla of evidence that the grievor had been guilty of misconduct or anything more than an error of judgement. This board considers that in giving his testimony the grievor was candid and straightforward. Nevertheless, he is mistaken in believing that the course he followed,, certainly as between April 17 and ?4ay 2, was justified. He is an exper- ienced parole officer who has taken at least one course in the law. As such, he must have been familiar with the concept of fraud or "obtaining by false pretences." The problem had its inception when he decided as early as March 10 that it would be best for the client to quit sharing an apartment with Ellen and that since the man needed money he should put himself in a position to obtain welfare. It was the grievor himself who suggested a move and advised that the client's lawyer could get the bail order amended. He has said so in his testimony. The advice given is mentioned in Exhibit 5, an extract from the griever's "Record of Case Supervision." After an office visit on March 10 he made the following entry: "OV having lots of problems: Ellen really can't support him. PO sugg he get a separate place and get welfare. He & Ellen are very attached to each other, but having problems. Alth. they see Ram. Couns. J.H. is not sure he can handle the pressure....." There is no mention in the entry of the advice that Hayes should see his lawyer and have the bail order amended, but the concluding words are: "the 1 above also entailed sev. ph. calls." The Board cannot agree that the' grievor had every reason to expect his advice would be taken. On the contrary, he has testified that the client did not seem to believe him when he said that a lawyer could get the bail order amended. In view of that reaction, it is difficult to understand why the grievor talked no more to Hayes during the period between lYarch 10 and April 17. On that date, as the grievor himself says, he learned that Hayes was actually living on Emery Street but was "telling lies" in order to obtain welfare. , Mr: Rushton has also failed to give a satisfactory explanation for his . failure to do, in the last two weeks of April, what.he did very promptly after Ms. Preston's call on Nay 2. Quite.apart from the evidence of ;Xr. Delgaty and'Ms : Preston, it is entirely possible to reach a conclusion in this case on the basis of the testimony given by the grievor himself. We think he must be credited with telling the whole truth. The truth is that-by his inaction and his sympathetic understanding of the client's plight, he did in fact condone or tolerate what I' _ any parole officer --- any officer of the court --- ought to i - 18 - recognize as the crime of fraud. He may not have advised it, but he did nothing to prevent it happening between April 17 \ and May 2. In our.bpinion this was misconduct on the part of _ / a public servant who has a partto play in law enforcement and the prevention of crime. Although the point was not stressed in argument, this Board must determine whether it should exercise its jurisdiction (under subsection (3) of section 18 in The Crown Employees Collective Bargaining Act) to substitute a different penalty'for the five-day suspension given the grievor. I The good qualities of the grievor are recognized, particularly the enthusiasm and strong motivation mentioned by Mr. Delgaty. We are prepared to accept Mr. Delgaty’s conclusion that "Rushton was attempting to promote the best interests of the client at all times..... He weighted the client's need higher than his own responsibility." On the other hand, the grievor does not seem pre-' pared to accept findings that he was at fault. He appeared to be an honest witness, but we detect in his approach to this matter, and also his attitude on previous accasions involving improper reports, that he tends to be impatient vith what some ~oeople mistakenly call "legal technicalities." The prohibitions '_ - 19 - in the Criminal Code are in no kense "technicalities" and every officer of the court is bound to respect them as part of the substantive law. No one has the right to act as though they were less important than the interestsof an i,ndividual. In all the circumstances this Board cannot conclude that the five-day suspension in this case was excessive. The grievance‘therefore fails and must be dismissed. DM'ED a%~Toronto this 2nd day of October, 1981. Jol1ifre.Q.C.. Vice-Chairman Yiik Ii. J. Laing Member "I dissent" - See attached E. McIntyre Member . DISSENT Having read the decision of the majority I find that I am unable to concur with its conclusion. While I essentially agree with the Chairman's review ~ of the evidence, there is one crucial point which I do not feel is adequately set out. It was cleax from the testimony of Mr. Rushton, that his primary reason for insisting tht Mr. Hayes change residences, was the extreme emotional tension'between Mr. Hayes and Ellen. . In that Ellen was the subject of the brutal assault with which Mr . Hayes was charged, Mr. Rushton felt that the terms of the bail order were.ill advised. Although the bail order required that Mr. Hayes not associate.with any,witness involved in the charges . agiinst him, it, at the same time, required him to reside in the apartment of the subject of the 'assault. It was because of this' circumstance, and because of the violent nature of LM~. Hayes that Mr. Rushton felt it most crucial that LMr. Hayes change his address. Accordingly, in that the prevention of a further violent incident was the focus of Mr. Rushton's concern, it is understandable why he concentrated his efforts on sersuadinq Mr. Hayes to change addresses. The other aspect of the evidence which I would comment upon is the lack of clear indication from the emyloyer’s witnesses ’ as t0 &at Hr.~Rushton should have done in the circumstances that he did not do. While Mr. De'lgaty indicated that Mr. Rushton should . . . /2 c I -2- have instructed the client to contact welfare and have himself cut off this benefit there is considerable doubt as to the effectiveness ofthis course of action. It was not suggested by Mr. Delqaty, that Mr. Rushton should have himself notified the welfare authorities of the circumstances of Mr. Hayes' claim. 1,n fact, Mr. Delgaty himself, upon taking over the file did not do so. While I do agree with the Chairman that a parole officer, being an officer of the Court, should not condone the crime of fraud, J do not accept thatwhat happened in this case can be so characterized. St is my opinion, that the qrievor can at most,,be faulted for delay in effective follow up in dealing with Mr. Hayes or an error in judgment. He could perhaps'have taken further or alternative steps to' correct the situation rather than allow it to continue as long as it did. '\ For this he is deserving of at most, a reprimand. A five (51, day suspension is much too severe a ,penaity in the circumstances.