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HomeMy WebLinkAbout1983-0014.Johnston.83-05-18IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: Hearings: OPSEU (Edward Johnston) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R. L. Verity, Q.C. Vice Chairman L. Robinson Member E. R. O'Kelly Member P. J. J. Cavalluzzo Cougsel Cavalluzzo, Hayes L Lennon Barristers & Solicitors J. F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services March 11, 1983 April 25 & 26, 1983 - 2 - DECISION In a Grievance dated November 22, 1982, the Grievor Edward Johnston alleges that he was suspended and subsequently discharged without just cause. The settlement requested was reinstatement with full pay and no loss of benefits from the date of the suspension. A three day suspension with pay was imposed on November 5, 1982 pending an investigation. That investigation resulted in the Grievor's discharge on November 17, 1982, At all relevant times the Grievor was classified as a Correctional Officer 2 and was employed at the Niagara Detention Centre at Thorold, Ontario. The Grievor is 30 years of age and has worked for his present employer continually at the Niagara Detention Centre. His employment with the Ministry dates back to July 31, 1978. Prior to employment with the Ministry, the Grievor had two years experience as an R.C.M.P. officer. The Niagara Detention Centre is a first incarcerate institution which has both maximum and minimum security areas. The institution accommodates 120 male inmates and has a present staff complement of some 73 employees. A detailed letter of termination signed by Superintendent J. G. Hildebrandt dated November 17, 1982 (Exhibit 2) sets forth 1 the reasons for termination and reads in part as follows: i- -. - .3 - "On November 17, 1982 a meeting was at the Niagara Detention Centre to rev the following allegations that you: held iew 1) Failed to adhere to the Ministry of Correctional Services directives in that you neither notified your I Superintendent of your personal involvement with an ex-inmate nor sought his permission to continue with this association. 2) Further, that you failed to notify either your superior officers at the Institu- tion or the Police of the whereabouts of Jamie Westlake whom you knew to be a National Parol'e Violator. 3) Further, that through your association with ex-inmates and failure to carry out your responsibilities as a Peace Officer, you have seriously damaged your effect- iveness as a Correctional Officer. Present at,this meeting was Mr. C. Leutz of the Ministry's Inspection and Investigation Branch whd outlined in detail the findings of his investigation. These findings were as follows: A) That you were aware, on or about October 20, ~1982 that Inmate J. Westlake (who was a former inmate of this Institution) was in violation of his National Parole and was in fact unlawfully at large. B) On October 21, 1982 you assisted Kim Lipscombe (Westlake's girlfriend) in removing Westlake's personal property from the Wayside Halfway House at 200 Queenston Street, St. Catharines. C) You socialized with Federal inmates Jamie Westlake and Jeffery Little (who were former inmates at this Institution) and their friends, primarily Kim Lipscombe on several occasions, which on at least one occasion included the consumption Of alcohol. i- -_. - 4 - D) You at no time apprised this Institution or police authorities of your contact with, or knowledge of inmates, ex-inmates and/or their friends. E) You failed in your responsibilities as a Peace Officer in that you did not notify the appropriate police authorities as to your knowledge of inmate Westlake's violation of National Parole. F) In failing to notify police or institutional authorities that on October 21, 1982 you assisted inmate Westlake's girlfriend (Kim Lipscombe) in retrieving all of inmate Westlake's belongings from the Wayside House, you may have assisted this' inmate in remaining unlawfully at large for a further period of time. G) That your actions violated pages 7 and 8 of the Niagara Detention Centre Standing Orders as well as Section A-6, page 3 of the Ministry's Manual of Standards and Procedures......" * "The Standing Orders (Ref. Pages 7 and 8) Re: Staff Involvement with Inmates, Ex-Inmates, their Friends and Relatives, clearly indicate that Staff will be subject to disciplinary action for failure to adhere to same. I view your actions in this matter as a serious breach of your responsibility as a Correctional Officer and Peace Officer, that has caused irrevocable damage to your integrity and effectiveness to carry out your duties as an employee of this Ministry." At the Hearing, the facts were presented in considerable detail. By way of background, the Board will make reference to some relevant facts. - 5 - The Grievor's fiancee, Judy Burke, lives at 5 Bailey Avenue in St. Catharines, an address frequented on numerous occasions by the Grievor. Judy Burke has a close relationship with her 17 year old sister Kim Lipscombe, and from October 8, 1982 Kim Lipscombe commenced living at 5 Bailey Avenue. Kim Lipscombe's boyfriend was one Jamie Westlake. Westlake has a lengthy criminal record and was an inmate at the Niagara Detention Centre from November 29, 1981 to and including January 11, 1982. The Grievor was aware of Westlake's criminal record and his incarceration at the Niagara Detention Centre. In addition, the Grievor knew that Kim Lipscombe had been corresponding with Jamie Westlake while he was in prison. e 1 On September 7, 1962, Jamie Westlake was granted paro from Joyceville Prison and one of the conditions of that parole was to take up residence at a halfway house in St. Catharines known as Wayside House. The Grievor met Westlake in the early part of September 1982 at 5 Bailey Avenue and was in his presence on numerous occasions at that address. On October 19, James Westlake left Wayside House in violation of the terms of his parole. Westlake was eventually apprehended by Niagara Regional Police Officers the night of October 23, and subsequently charged and convicted in two separate incidents of armed robbery relating to events on September 27, 1983 and October 4. 1982. .x . - 6 - On either October 21 or October 22 (the evidence is not clear as to the precise date) the Grievor drove Kim Lipscombe in his motor vehicle to Wayside House for the purpose of retrieving Jamie Westlake's clothing. Subsequently on the evening of Qctober 22, Kim Lipscombe attended at the Niagara Regional Police Station in St. Catharines at the request of the Police and was questioned by Police Constable Donald Woodhouse and Sergeant Frederick Borozny of the Criminal Investigation Branch. She was accompanied on that occasion by the Grievor and Judy Burke. Miss Lipscombe was interviewed in the Investigation Branch Interview Room while the Grievor and Miss Burke were spoken to in the hallway (Exhibits 5 and 6). The purpose of the interview with Kim Lipscombe was to ascertain her knowledge of the bank robberies (Exhibit 6). Sergeant Borozny advised the Grievor and Miss Burke that he "had received information that they both had knowledge of the bank robberies perpetrated by Jamie Westlake". According to Police Constable Borozny's oral testimony at the Hearing and his written statement (Exhibit 6): "I asked them what they knew. Both BURKE and JOHNSTON denied any knowledge of WESTLAKE's activities. JOHNSTON and BURKE were questioned for approximately ten minutes. During this time, JOHNSTON continued to deny any knowledge of WESTLAKE's activities. However, he admitted to me that he was aware that WESTLAKE was unlaw- fully at large, and that an outstanding arrest warrant existed against WESTLAKE for parole violation. JOHNSTON told me that on several - 7 - occasions he had talked to Jamie WESTLAKE and tried to convince him to surrender. JOHNSTON told me that these talks were futile and WESTLAKE had refused to surrender. At this point, I advised JOHNSTON that, being a Peace Officer', he should have done more. I told JOHNSTON that he either should have reoorted WESTLAKE's whereabouts to the Police or'arrested WES TLAKE himself." At the Hearing, Constable Woodhouse elaborated on his written statement (Exhibit5) and in so doing corroborated Sergeant Borozny's statement. Constable Woodhouse's statement reads in part: "From the other witness statements we had received, it was clear that both JOHNSTON and BURKE had knowledge of the Robbery. Continued questioning about this resulted in the denial of knowledge of the Robberies by JOHNSTON and BURKE. JOHNSTON started to become antagonistic toward ourconstant questioning. Both JOHNSTON and BURKE were advised to return home and await our completion of the interview with LIPSCOMBE." The Grievor did not report his contacts with Westlake to Superintendent Hildebrandt, nor did he report to the Superintendent his involvement in the Police incident of October 22. On November 2, Superintendent Hildebrandt was advised during a staff meeting that the Niagara Detention Centre had received a.complaint from the Niagara Regional Police that the Grievor had been unto-operative with the Police. To the credit -a- of Superintendent Hildebrandt,he contacted the Deputy Police Chief an,d met with Sergeant Borozny on November 4. Superintendent Hildebrandt was' sufficiently concerned about 'the tenor of that meeting that he in turn contacted Ministry personnel to appoint an investigator. Inspector C. R. Leutz attended at the Niagara Detention Centre during the morning of November 5 and began a formal investi- gation. A statement was takep by Inspector Leuti from the Grievor (Exhibit.31) on November 5 pursuant to Section 22 of the Ministry 2 of Correctional Services Act, 1980 R.$.O. Chapter 275. Section 2 reads as follows: "The Minister may designate any person as an inspector to make such inspection or investigation as the Minister may require in connection with the administration of this Act, and the Minister may and has just cause to dismiss any employee of the Ministry who obstructs an inspection or investi- gation or withholds, destroys, conceals or refuses to furnish any information or thing required by an inspector for the purposes of the inspection or investigation." As indicated previously, the Grievor was suspended for three days with pay pending the investigation. The evidence is clear that Superintendent Hildebrandt relied upon the findings of Inspector Leutz in discharging the Grievor on November 17. Mr. Hildebrandt testified that he dismissed the Grievor"primarily because of his failure to notify me of his association with an ex-inmate". The Superintendent was satisfied that the Grievor knew of Jam ie Westlake's parole vio 1 ation several days prior to - 9 - the Police interview of October 22. It was the Superintenden k’s evidence that a Correctional Officer is a Peace Officer within the meaning of the Criminal Code of Canada. In addition, the Superintendent was concerned that one of.his staff,members had not fully co-operated with the Police. In his evidence, the Grievor test ified that he had met Westlake several times in September and October under the most casual of encounters. He did admit to attending 'a party at 5 Bailey Avenue in the presence of Westlake and one other ex-inmate on September 27. The Grievor emphatically denied any knowledge of the bank robberies committed by Westlake. He did however admit to casual conversations with Westlake concerning guns. It was the Grievor's testimony that he had not seen Jamie Westlake for approximately one week prior to the Police interview of October 22. The Grievor stated that he had no personal relationship with Westlake and in his own terminology "my dealings with him were very few and very limited". It was the Grievor's evidence that he told Kim Lipscombe to advise Westlake to turn himself in on account of parole violation. * Judy Burke 'gave evidence that substantially supported the Grievor's testimony. She testified that there were two separate apartments at 5 Bailey Avenue, and that the other apartment was occupied by her brother Robert Lipscombe. Miss Burke testified that several people came to her apartment on September 27th including - 10 - Jamie Westlake. It was her evidence that the Grievor was in attendance but was operati was "totally obliv ious to the Grievor left 5 Bailey returned at lo:15 in time Miss Burke testified that Boroany and one other Pol i ng a computer in the living room and everybody". She stated that she and Avenue to attend a local tavern and for the Grievor to report for work on October 21 she met with Sergeant ce Officer at her home on 5 Bailey Avenue. The purpose of that Police visit was to ascertain the whereabouts of Westlake from Kim Lipscombe and Judy Burke and to search the residence. It was Miss Burke's evidence that the Police advised both her sister and her to make arrangements for Westlake to call the Police Station and that the problem Westlake faced was minor. The Ministry alleged that the Grievor had violated pages 7 and 8 of the Institutional Standing Orders (Exhibit 9) and in so doing also violated the similar wording of the Ministry's Manual of Standards and Procedures (Exhibit 10). The relevant part of the Institutional Standing Orders reads as follows (Exhibit 9): "STAFF INVOLVEMENT WITH INMATES, EX-INMATES, THEIR FRIENDS AND RELATIVES. The purpose of the following instruction is to place the onus on the staff member to advise the Superintendent of the nature, type and duration of any non-professional relationship with inmates, ex-inmates, or their relatives. It will also provide a vehicle from which disciplinary action may be taken - * ‘. - 11 - 'fin order to prevent staff members from being accused of any conflict of interest or possible breaches of security, staff members are not per- mitted to enter into any personal relationship not in the line of duty, with any inmate, without first receiving the written approval of the institution or bra'nch head. In the case of ex-inmates, their relatives, or the relatives of inmates and their friends, should the staff member engaging in a personal relation- ship not in the line of duty, feel that the relationship could be construed by others as a conflict of interest or possible breach of security, 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 the sole arbiter of what constitutes a conflict of interest or possible threat to security in the aforementioned relationships, and will advise the staff member in writing of his approval, or that the personal relationship is to be terminated. Staff not conforming to the above may be subject to disciplinary action.' ' The oral arguments of Messrs. Benedict and Cavalluzzo were deta~iled, thoughtfully presented and amply supported by both judicial and arbitral precedent. No useful purpose would be achieved in a repetition of the content of either argument. In assessing the evidence, this Board was totally unimpressed with the evidence of Jeffrey Bleich. Mr. Bleich gave two statements to the Niagara Regional Police (Exhibits 29 and 30) that appear totally contradictory concerning his recollections of the events of September 27. At the Hearing, Mr. Bleich acknowledged in cross-examination that his "memory wasn't too good at times". Further, he admitted th,at he wasn't sure what happened on September 27 and in his own words testified "I might be wrong, I might be - 12 - right". The Board is of the view that the evidence of Jeffrey Bleich must be totally disregarded as being unreliable. The Board finds that the Grievor's recollection of the events is credible. The Grievor's statement to Inspector Leutz on November 5, 1982 (Exhibit 31) is consistent with his evidence at the Hearing. There was no evidence worthy of belief that either the Grievor or Miss Burke had knowledge of the robberies perpetrated by Jamie Westlake prior to the Police interrogation of October 22. Yet the fact remains that the Grievor, on his own admission, knew that Westlake had broken his parole several days prior to October 22. The evidence is clear that the Grievor took no steps to advise his Superintendent or the Police of that fact. We find he should have done so by virtue of his position as a Peace Officer. The Board is of the opinion that the Grievor showed poor judgement in his failure to report his initial contact with Jamie Westlake the second week of September, 1982. Had he reported that fact to his Superintendent, this matter could conceivably have been resolved to the satisfaction of all parties. The Grievor knew that Kim Lipscombe had a relationship with Westlake and that that rel ationship had been active while Westlake was in prison. Accordingly, the Grievor should have notified his Super- intendent the moment he became aware that Westlake had been released on parole. - 13 - The Standing Orders in question could have been expressed with greater clarity. The purpose of the Standing Order when viewed in its entirety is .to prevent contact between staff employees, inmates, ex-inmates;their friends and relatives without the knowledge or approval of the Superintendent. The Board is of the opinion that the Grievor by his conduct has violated the spirit of the Standing Order if not the precise wording of the Order. In the instant Grieva~nce, the release of Westlake on parole placed the Grievor in a potentially compromising position. His obligation as a Correctional Officer was~to advise the Super- intendent of that potential conflict. The obligation of a Correctional Officer is to report even the most casual contact that he experiences outside of the normal course of duty with an inmate or an ex-inmate, their friends and relatives. On the evidence we are unable to find that the Grievor was naive; however, we do find that he displayed a total lack of .judgement in failing to raise an issue that was potential lY embarrassing. In the Grievance Settlement Board Award of Eriksen and The Ministry of Correctional Services (Kitchener Jail, Kitchener, Ontario), GSB 12/75, Vice-Chairman Beatty stated the standard expected of a Correctional Officer at page 29 of his Award as follows: a- d. - 14 - II . . . . the Correctional Officer must be expected to exercise sound judgement and common sense in assessing the propriety of the meeting. In exercising such judgement however and given the delicate function performed by the Correctional Officer such members of the Ministry's staff must be advised to be scrupulously vigilant to conduct themselves in a manner which will ensure that their integrity and character is safeguarded, and beyond any possible reproach, that their own position is not unwittingly compromised or manioulated and that the securitv of the insti- tut ion is not jeopardized." Hav ing reviewed the evidence care f The thr ee central allegations in that letter of termin- ation, bear repeti tion: Lilly, the Board of finds that the Ministry has proven each of the findings Inspector Leutz as detailed in paragraphs A to G inclus the letter of termination (Exhibit 2). ive in 1) Failed to adhere to the Ministry of Correctional Services directives in that you neither notified your Superintendent of your involvement with an ex-inmate nor sought his permission to continue with this association. 2) Further, that you failed to notify either your superior officers at the Institution or the Police of the whereabouts of Jamie Westlake whom you knew to be a National Parole Violator. 3) Further, that through your association with ex-inmates'and failure to carry out your responsibilities as a Peace Officer, you have seriously damaged your effectiveness as a Correctional Officer." - 15 - The Board fi nds that much of the first allegation has been sustained on the evidence. The second allegation is not supported by the evidence presented at the Hearing and the Board finds that it is unlikely that the Grievor knew of the whereabouts of Westlake. It is our finding that the third allegation has been established on the evidence. There is no doubt that the actions of the Grievor have caused embarrassment to the Niagara Detention Centre. T he Board is of the opinion that the Ministry had valid reasons to impose discipline upon the Grievor. However, we cannot agree that discharge is the appropriate penalty. Accordingly, we will exerci se our authority under Section 19(3) of the Crown Employees Collective Bargaining Act, and substitute a penalty of a four month Suspension without pay, but without loss of seniority. Without doubt, it would be reassuring to the Ministry if Kim Lipscombe had no further association with Jamie Westlake. Jamie Westlake is now in the process of serving an eight year prison term as a result of a conviction for armed robbery. In the event that Kim Lipscombe continues her association with Westlake, and the Grievor eventually marries Judy Burke there could very well be a continuing problem for the Grievor. However, we were impressed with the maturity, ability and intelligence of Superintendent Hildebrandt who, we believe, is able to handle the Grievor's reinstatement and any probl,ems that may flow from reinstatement. The suspension aspect of the Grievance is dismissed. - 16 - j The Board shall retain jurisdiction in the event that there are any difficulties regarding the interpretation or implementation of this Award. DATED at Brantford, Ontario, this 18th day of May, A.D., 1983. . c l wf+-~ L c+ 7 R. L. Verity, Q.C. Vice-Chairman c-- ~-- -----y-B - L. Robinson .J I: 4000