HomeMy WebLinkAbout1982-0284.Lindsay.82-12-10GRIEVANCE
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
OPSEU (Lloyd Lindsay)
Grievor
-And -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
R. J. Roberts Vice Chairman
S. J. Dunkley Member G. Peckham Member
For the Grievor: C. G. Paliare
Counsel
Cameron, Brewin & Scott
Barristers & Solicitors
For the Employer: J. F. Benedict
Manager, Staff Relations
Dersonnel Branch Ministry of Correctional Services
Hearings: July 21, 1982
July 22, 1982
August 20, 1982 September 21, 1982
October 26, 1982
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Th@ 'griev'or, who was ~a Probation and Parole Officer
with the Ministry of Corrections lthe~ Employer), was
discharged for assaulting a probationer. At the hearing,
the Employer contended that discharge Was appropriate
because the grievor coimnltted a deliberate and premeditated
breach 'of trust 2n malting theeassault, and there were no
mitigating circumstances' in the case. The Union- contended
that there 'were mitigating circumstances, and in the
light of those mitigating circumstances, the griever's
prior excellent work record, and the grievor's excellent
potential forrehabilitation, the Employer did not
have cause to discharge. We agree. Weconcludethatunderordinary
circumstances discharye VKIIJ&? have b&n appropriate; however, having regard
to the peculiar cirwtances of this case 'we find 5ilC lesac:: discipline __~ ..__ --- -----
was in order. The:grit3ancc is allo+ed in par-t.
Atthetimeoftheincidentinquestion,thegriewr~~oftwo
Probation and Parole Officers working in&en Sound. Pecauseofthe
small size of their office, the two officers generally managed wark
loads imrolving clients who had kenconvictedof awide variety of
offences: They.had a great deal of aukmmmy in their operation. W. R.
I4arks,theirAreaK.snager,waslccated inGuelph. Generally, theextent
of his supervision rant0 checkingwith the griever and his colleagues by telephone
and vj_si:ting the' Owen' Sound. Office about once 'a month.
The'grievor was regarded by his supervisors as an
outstanding Probation and Parole Officer. Mr. Marks
testified that the griever was, "Not a 9-5 Probation
Officer:. Ke 'is someone who is willing to extend himself
beyond the call of duty.'. Mr. J. Gaskall, the Regional
Administrator, Probation and Parole, to whom Mr. Marks
reported, testified that in terms of energy, enthusiasm,
and commitment to corrections the grievor was in the top
10% of the 55 Probation.Offioers under his direction. He
stated that the grievor was intelligent, innovative, and
cared about what he was doing.
In recognition of his superior qualities, Mr. Marks
recommended the grlevor for promot2on In 1980'and 1981.
Mr. Marks testified that this was an extremely rare
occurrence. He added that in 1980, the grievor was the
only one out of 12 Probation and Parole Officers under
his jurisdiction who was recommended for promotion. In
1981, the grievor was one of two out of twelve who got
recommended for promotion. Ee stated that in his view
the grievor was his best Officer, in terms of being ready
for promotion. He was one 'of the two best Officers in
all categories.
Then 'grievor had ,special reasons for being committed
to his work as a Probation and Parole Officer. Inhis
own youth, the grievor had been deemedincorrigible,.in the
sense 'of being be~yond the capacity of his mother to handle.
When the grievor was 10 'years old, his mother applied
to Family Court to have him made a Ward of the
training school system. The grievor spent the next
six years fin training schools and in various foster homes,
mostly in the Toronto area. He was expelled from
school at age 13. Bis Probation Officer got &III an
early school leaving certificate. He went to work at
various jobs and became a drifter, even though technically,
he was still a Ward of ~the 'training school system until
he reached age 16. Apparently, it was the opinion of
those responsible for s~upervising the grievor that he
was beyond help and ultimately would end up in the adult
correctional system.
When he was 18, however, the grievor decided to
turn his life around. He got a decent job with a shoe
company and worked his way up to become the youngest
manager in the history of the company. He married, and
with the help of his wi~fe ~decided to return to school.
At age 21, he re-enrolled in Grade 9. From there, he
rapidly progressed through Grade 13. At that point, he
decided tha~t with hi‘s background, a career as a Probation
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and Parole'Officer would be 'a good goal. As the grievor
stated in his testimony at then hea~ring, "I thought I could
help people ~with ~similar situations to mine." In 1976,
after~ obtaining .'a B.A. in Sociology, theegrievor applied
for a position as aProbation and Parole Officer in Ritchener.
He was suCCesSfU1. Hissupervisor was Mr. Gaskall, the
current Regional Administrator, Probation and Parole.
In 1978, the 'grievor,was transferred at his own request
to Owen Sound. He :and his wife had purchased a property
in that area. They thought it would be a sound
opportunity for them tom build their own home. As
previously indicated, the grievor's star continued to rise.
He became establishe~d in Owen Sound, participating avidly
in community activities such as Little Theatre. He also
became active in speaking to service clubs and high schools,
etc. These were voluntary activities which considerably
enhanced the profi .le of the Employer in the Owen Sound
area.
In April, 198Q, the griwor took on a one year assign-
ment as a Community Development Officer for the Employer
in his area. In this capacity, it was the grievor's assigned
duty to tak,e.initiatives to enhance the profile of the
Employer. The 'grievor tackled the 'job with 'considerable
n’
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energy and enthnsiasm: Tt was a he'a'dy experience in which
,the grievor was able 'to create 'and nurture amnnrnity prcqra~~,
gaining considerable 'reward from watching them take root
and flourish.' When April, 1981 rolled around and the
grievor had to return to his regular duties as a Probation
Officer, it undoubtedly was difficult for the grievor to
make the 'adjus~tment. As I&,Gaskallstated in his testimony,
it was like~being sent back to the "salt mines".
The need to readjust~to dealing once again with
immature, unmotivated and sometimes borderline clients,
began to raise frustrations in the grievor. He also began
to feel trapped in Owen Sound by virtue of his and his
wife's inve.stment in the property there, and this contributed
further frustration. The grievor had become convinced from
his experience as a Community Development Officer that the
best career move 'for him would,be to go to a larger center.
NOW, this seemed impossible. As time passed and his
frustrations grew, the grievor became increasingly irritable
with his clients.
The grievor did not share his frustrations with his
wife, Because 'of the way in which. he spent his formative
years, the grievor h.ad learned to keeps his. own counsel and .'
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not reLy on others. HTs ,fee~lings of tension.and frustration
grew.
.,
Finally, InearlYJanuary, 1982, the 'grievor realized
that,he 'would need outside 'help to relieve him of his
feelings of dep~ression and frustration. He contacted
Dr. G. Howie, a psychiatrist in Gwen Sound with whom he.
had previously worked In a professional capacity. Dr.
Howie declined to take'on then grievor as a patient because
of their prior relationship. He called another psychiatrist,
Dr. S.W. Hrab, the Unit Director of the Homewood Private
Psychiatric Hospital in Guelph.' Apart from his duties at
Homewood, Dr. Hrab also worked as a consultant to the
Guelph Correctional Centre 'and took on a small number of
outside clients. Dr. Hrab agreed to take the grievor as
a'patient.
The grievor began to see Dr. Hrab on January 13, 1982.
According to the testimony of.the grievor, it was -slow
going at first because 'he really did not know the reason
for his own feelings of frustration. He stated that they
.had to embark on a program of dfscovery.~ was part of this
program, her delivered to Dr. Urab a life story that Dr. Hrab
had asked him to make out. This was just before the date
of the incident in question.
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The incident leading to the,~yrievor's discharge
occurred on Friday, March.12, 1982. For about month
prior to thi's date, the 'griever had begun to become
disillusioned with the usual process of dealing with
probationer~s, i,.e.~; co'unselling them and warning them
of what could h,appenif they violated the terms of their
probation. The' grievor~ testified, *I was tired, tired
of talking, just tired~." B,e 'stated that in this one
month 'period, heebegan for tlie~ 'first time to consider
corporally punishing clients whose lack of motivation
to cha'nge frustrated and angered him.
This brings us .to the factual incident. On Thursday,
March 11, 1982, the ~grievor was performing his usual
intake procedure with 'a neti probationer. The probationer
had missed a previous appointment and in addition to
explaining the usual consequences of violating the terms
of probation, the grievor undertook to warn the probationer
of the potentially s~erious consequences of doing so. The
grievor began 'to get angry and frustrated. Although the
probationer wasp over 21, there did not appear to be any
appreciation on the proba~tioner's part, at least in an
adult sense, -of the connection betwee,n the crime that was
committed and being on probation.
The probationer was below average in in-
telligence and socially inadequate. Every point that
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the grievor attempted to make was-met with a look of
blanknes's. T.he proba'tioner made 'only vague responses.
The grievor suggested tha~t it seemed that the only way
he could impre,ss upon the probationer the need to keep
appointments wou'ld beeither to send the probationer to
jail as he had apparent power to do or! corporally
punish ~the ~probationer like a child. The probationer
agreed to take the corporal punishment. On Friday,
March 12, the probationer returned to the office and
was spanked by the grievor whi~le being reminded by the
grievor of the reasons for the punishment.
Later that same day, when then probationer's sister
heard about what happened, she called the Police. There
was an investigation. On Saturday, March 13, when
the grievor was questioned by the police investiga-
tor? Detective M. Kaye, he denied the incident. Later,
on Sunday, March 14, when he met again with Detective Kaye,
the grievor refused to make any admission but asked if
he should call the Crown.* Detective Kaye stated in his
testimony that he noted at this point that the grievor was
very depressed and upset. He felt that the grievor might
* I~t should -be noted that on Saturday, March 13, Detective *
Kaye had advis~ed the grlevor that anything that he might
say could be taken down and used against him in a criminal
proceeding.
do harm to himself. Detective Xaye added, "I was going to
check in ha~lf an hour to see if everything was okay."
On Sunday evening, the grievor managed to contact
by telephone his, super'visor, Mr. Marks. (Apparently, the
grievorhadbeen trying to make contact for a considerable
period of time but Mr. Marks had been away from home.)
He advised Mr. Marks of tlie~ ~incident and suggested that ., ,,..
first.thing Monday morning, he 'should meet with Mr. Marks
and Mr. Gaskall.
This meeting took place on Monday morning, March 15,
1982. According to Mr. Marks, then grievor related the
entire.incident, commenting that over the past few months
he had become frustrated, that he could not help clients
who were unmotivated and did not have much to work with.
.Both Mr. Marks and Mr. Gaskall observed that the grieror
was extremely distraught and remorseful. They became
concerned about his emotional state. Mr. Gaskall testified
that he was worried that the grievor might have suicide
on his mind. Mr. Marks contacted Dr. Hrab and arranged
for the grievor to visit the doctor at about noon.
Both Mr. Marks and Mr. Gaskall were shocked by the griever’s
revelation, butneither‘of them concluded that discharge
was in order. Mr. Marks testified that he considered the most
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appropriate course ~of action to be to temporarily re-
assign the' grievor to duty as an Institutional Liaison
Officer at the 'Guelph'Reformatory, a move which would
keep then grievor from doing case work in a social work
situation while' his problem was being identified. Mr.
Marks indicated that he' thdught that this ~would be
appropriate because the ~grievor was a high calibre, model
type of employ~ee 'with.'Xto 8 years with the Ministry.
Mr. Gaskall likewise indicated that when he learned
of the incident at the meeting of March 15, he did not
consider discharging the grievor. In fact, he expressed
an opinion in the presence ~of Mr. Marks and the grievor
that discharge probably would not occur. Mr. Marks
testified, "At the meeting on March l5, it was my
opinion and Mr. Gaskall's opinion that discharge of the
grievor probably would not occur. The grievor could have
inferred this from our conversation, yes."
Matters, ho'wever, changed. The discussions of what
action should be taken with respect to the griever were
carried to the level of the Deputy Minister. In the
course of this process, flrl Marks adhered to his
suggestion .regarding temporary transfer to a
position as an Institutional Liaison Officer.
He also.suggested that the grievor be given a
medical lea~ve ~of absence ~until he 'was pronounced fit to
return to duty. Mr. Gaskall likewise suggestedanumber
of alter~natives. Bothhsupervisors put these suggestions
before ~a managenien't mee'ting involving Mr. Marks, Mr. Gaskall,
Mr. CampbeSl (the Deputy Minister), Mr. ,Daniels (the Executive
Director, Community Programs Division), Mr. Taylor (Director,
Probation and Parole'for Ontario), and m. Crew (Director
of Personnel),
Mr. Gaskdll testified that the invariable response
that was made to his and &. .Marks' Suggestions was that
dismiss~al was the 'inevitable ~conseguence of .an assault on
a client, regardless of then circumstances.~ In the light of
this reaction from the corporate authorities of the Ministry,
Mr. Gaskall acceded. On April 13, 1982, Mr. Gaskall drafted
a letter terminating the grievor as of April 14, 1982. The
letter stated, in pertinent part, "There is no doubt that
your actions constituted grave and unprofessional misconduct
totally unbecoming a Probation Officer and involving a gross
abuse of your authority. This reflected adversely upon the
Probation Service of this Ministry and the administration of
justice in Ontario. I am therefore dismissing you for cause
in accordance 'with 'the provisions Iofl S.22c.3) of the Public
Service Act effective as-from April 14th., 1982." On the
same date, the grievor grieved this dismissal. In due course,
this hearing followed.
At the hearing , the 'case ~forthe Employer focused
upon the undeniable ~fact that a Probation and Parole
Officer is charged with's public trust, and in the execution
of this trust wields considerable power over his clients.
The Employer stressed the need tc prevent any Probation
Officer from abusing the'trus~t and inherent power of his posi-
tion. The grievor, itwas contended, grossly abusedthispowerwhen
he used it to extract from a probationer consent to corporal
punishment and t&n, pursuant to a deliberate plan., carried
outthat assaultive conduct on then following day. A gross
abuse of trust power such 'as this, the Employer submitted,
required the 'strong retributive sanction of dismissal in
order to deters others from committing like abuses.
This was a power~ful argument, and one to which we
might have bee'n' attracted if we were confronted with a
situation wher~e no mitigation was present, no strong
potential for rehabilitation was present, and the immediate
reaction of the grievor"s superiors was to apply the
sanction of dismissal. But here, this was not the case:
As to the 'existence 'of mitigating circumstances,
we note 'that at the 'time 'of then incident the grievor was
.:
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iZ a depressed and' frustrated state.. That this was not
'Lie usual depression to be expected in the course of
.performing the duties of a Probation and Parole Officer
was evidenced by the fact that in January, 1982, the
grievor realized that his condition was so severe that
he ought to seek professional help. He did so.
TheLCondition was brought‘on by a combination of factors
k-l?ich came together at the same time: the -dras,tic .change
in accomplishment and satisfaction accompanying the grievor's
return to the "salt mines" from his position as Community
Development Officer: the feeling 'of having made moves in
his career and pe.rsonal life which left him "trapped" in
a small center like Owen Sound: the reali~zation that he
-dould be better suited to a position in a larger center;
<:.e tendency of the grievor to "bottle up" these feelings
:.:ithin himself: and, the overly high expectations the
griever had of himself and others resulting from his own
extraordinary success in turning around his own life.
The stress resulting from the combination of these factors
caused the grievor to lose control with the probationer in
;-uestion, who unwittingly p.layed the role of the "straw that broke
the camel'~s back". That this was so was made eminently clear in
the testimony of Dr. ED. Paitich, the Chief Psychiatrist at th,e .'
Clar)ceInstitute, who made a detailed psychological assessment
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of the grievor.. Based upon his own observations of 'the
grievor and the administration pf a battery~ of tests, Dr.
Paitich found no psychological abnormality whatever. He
stated tha~t the 'griever was basically well adjusted,
creative, imaginative 'and highly intelligent. At the
same time, however;Dr.. Paitich.: testified that his
tests, revealed 'some aggres~sive tensions within the
grievor which were within the range 'of normal.personality.
He added that because 'of the lexistence of these aggressive
tensions, the grievor's first tendency under stress would
be to show some relaxation of his control thereof. This,
Dr. Pajtich testified, is what caused the incident in
question. He stated that the grievor was a "reasonably:
normal person in unusual circumstances that led him into
atypical behaviour."
There also was strong evidence of potential for
rehabilitation. The grievor was one of the top, if not
the top, Probation Officers in his Region. There was no
doubt that .virtually immediately after the incident, the
grievor felt consfderable remorse. In this.regard, we
do not accept the contention of the Employer that no remorse
was felt until after the grievor was contacted by the'police.
We accept the testimony of the grievor tha~t immediately after
IF
.a
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the probationer in question left his office 'he was filled
with r,egret Legarding what ha'd taken place. We also
find significant the evidence of Detective Kaye, Mr.
Marks, and Mr. Gaskall that on the Sunday and Monday
following the 'incident thegrievor was in such~ a disturbed
state that they ~feared he was contemplating suicide.
Finally, on thequestionpf potential for rehabilitation,
it is of considerable significance that Dr. Paitich
gave 'unequivocal testimony that in his professional
opinion there wasp absolutely no risk of a recurrence
of the incident giving rise to the grievor's 'dismissal.
He said, ".Xr. Lindsay has such a good insight into
himself thatthere is absolutely no risk of any recurrence
whatsoever. The risk is nil that Mr. Lindsay will
act out his frustrations through improper contact with
clients." We are persuaded by this strong expression
of expert opinion that there is no risk that the kind
of incident which led to the griever's dismissal will
happen again. This conclusion is fortified by further
evidence that the grievor iscontinuing to see Dr. Hrab
on a regular basis and will be doing so for the balance
of a period of treatment lasting for two years.
Turning to the reactions to the incident of the
grievor's~~supervisors, Mr, Marks and Mr. Gaskall, we find
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reason to doubt the contention of the Employer
that dismissalwas necessary'to deter others from engaging
in similar abuses of the:ir trust power. If this reaction
was so crucial to the interests of the Employer, why did
it not occur immediately in the minds of supervision
in the field? These are the people who are in
daily contact with 'Probation and Parole Officers.
Presumably, they also wouid be the firsttorealize the
implicationsof applying a sanction falling short of
dismissal to the ,breach of trust ,committed by the grievor
Yet neither Mr. Marks nor Mr, Gaskall even considered
dismissal to be in the realm of probability. The
initial reaction of both was to transfer the grievor
to a non-client contact position until they received
assurances that the grievor was fit to return to his
duties as a Probation and Parole Officer in the field.
At the hearing, 'both supervisors essentially
testified that their views regarding the grievor had
not changed. Mr. Marks testified that he would have
no difficulty in working with the grievor if he were
reinstated. Mr. Gaskall testified that he would have
no objection to the grievor being reinstated, so long
as the following two conditions were satisfied:
(11 that the 'emotional difficulty that caused
the incident hasp been overcome; and
(-21 that at least initially the'grievor worked as
an Institutional Liaison Officer rather than
a Field Officer, because the former is less of
a job you take home withyou than ;that of a.
Field Officer.
The first condition set forth by Mr. -Gaskall,
above, has been met in the evidence 'in this case. As
we noted above; the &pert evidence is that there is no
chance of a repetition of the incident which led to the
grievor's~ dismissal, Accordingly, we are inclined to
substitu~te less severe discipline: and reinstate the
grievor. This brings us to consideration of the second
condition put forward by Mr. Gaskall, above.
We think. that for the balance of the grievor's two
year period of treatment with Dr. Hrab, the grievor should
occupy a reasonably acceptable administrative post with
the Employer. Upon completion of this period of time, the
'grievor should begin easing back into the role of Probation
and Parole Officer. The logical first step in this, as
Mr. Gaskall indicated, would be transfer to the positidn of
InstitutionalLiaison Officer in the facility of the Employer
at Guelph. Thereafter, the grievor should be in a position
to compete for field positions asthey bscome available.
Then terms of our Award, then, are 'as follows: The
grievor is reinstated as of September 14, 1982. He will
,...,.’ ,:~
.~’
F.“‘.. - 19 -
occupy a reasonably acceptable administrative 'post pending
completion of his two year period of treatment with
Dr. .Hrab. The term, "reasonably acceptable", shall
'be determined according to objective factor-s taking into
account the -interests of the Employer, the grievor and the
Union. Upon completion of the~period of treatment with
Dr. Hrab, the grievorshall be transferred to a position
as an Institutional Liaison Officer at Guelph. Thereafter,
he shall be free 'to compete for field positions in 'the
Probation and Parole 'Service ,of the Employer as they become
available. We will retain jurisdiction of thematter
pending implementation of the terms of this Award.
DATED AT London, Ontario this 10th day of December,
1982.
Vice Chairman
‘-.
7: 3430
S. ~J; Dunkley; 'Member
-:,. ;, _ & .,
A- G. Peckham, Member