HomeMy WebLinkAbout1984-0557.Tyynela.84-12-17THE ROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between : OPSEU (John W. Tyynela)
Before:
557/84
IN THE MATTER OF AN ARBITRATION
Under
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
For the Grievor _’
For the Employer:
Hearings:
E. B. Jolliffe, Q. C. Vice Chairman
I. J. Thomson Member
G. A. Peckham rember
P. Sheppard
Grievance Officer
OPSEU
P. Radley
Staff Relations Officer
Personnel Branch
Kinistry of Correctional Services
September 27, 1984
October 29 and 30, 1984
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DECISION
Mr. John ~'W. Tyynela served as a "casual" correct-
ional officer at the Monteith Correctional Centre from July i
21, 1982, to April 21, 1984, when he was released. He has
grieved that his "dismissal and release... is without just
cause. "
AS a so-called "casual," the griever was a member
of the "unclassified service." The effect of Section 1 in
the Public Service Act is that he was a "public servant" but
not a "civil servant," the result being that he fell within
the bargaining unit represented by the Ontario
Public
Service Employees Union. As such, however, his rights were
Only those provided by Article 3 in the applicable
collective agreement, which has the rather inaccurate
heading: "Seasonal or Part-Time Employees." The true scope
of the Article is defined in 3.1 as follows:
'Ihe only terms of this Agreement that apply to
employws who are not civil servants arc those
that are set out in this Article.
Actually, apart from seassonal and part-time
employees, certain members of the unclassified service
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(hereafter called "casuals") serve fu.ll-time (that is, on
the same schedules as classified civil servants) as Mr.
Tyynela in fact did from May, 1983, to February, 1984. Such
full-time casuals continue as unclassified public servants
unless and until appointed to the classified staff, when
they become "civil servants."
Article 3.14 makes clear that among the rights of
unclassified employees are those set out in Article 27, so
that they may resort to the grievance procedure, including
the right to grieve against dismissal. In any event, the
right to grieve against dismissal is given to employees by
Section 18 of the Crown Employees Collective Barqaininq Act,
and in that Act the term "employees" (as defined in Section
1) includes members of both the classified and the un-
classified services.
Nevertheless, the statutory and contractual
provisions relating to casuals have given rise to certain
differences of opinion which should be mentioned before
discussion of the merits of this particular case.
Article 3.11 (formerly Article 3.3) provides as
follows:
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3.11 Employment may be terminated by the Employer
at any time with one (1) weeks's notice, or
pay in lieu thereof.
Faced with such language, the Board's panel in
Boucher and Trumbley 218/78, chaired by Professor Prichard,
gave a majority decision in which it was said:
In this case we are confronted with the bold
language of Article 3.3 of the collective agreement
which, as we have interpreted it, provides for only
one week's notice or one week's pay in lieu of
notice when a casual employee is terminated.
Whatever our personal views as to the substantive
adequacy of such a provision as a form of job pro-
tection, particularly as it applies to an employee
who has in effect served for seven years, it would,
in our view, be inappropriate for us to disregard
the parties' intentions as expressed in Article 3.3
in considering the appropriate remedy. m the face
of the collective agreement, the parties have
turned their minds to the degree of job protection
to be afforded casual employees and have reached
agreement on the question. The term "termination"
is given no limit in Article 3.3; it is not limited
to situations in which there is no longer work to
ke performed. In normal usage it should be taken
as including a dismissal and there is nothing in
the collective agreement to oust the normal
interpretation. Thus, one its face, Article 3.3
specifies the scope of protection to be accorded
casual employees. When read with section 17(21(c)
and section 18 of the Crown Rnployees Collective
‘Bargaining Act, it must be taken to mean that the
parties, after considering the situation of casual
employees, saw fit to agree that they could be
terminated upon one week's notice. Thus, in
attempting to pay heed to the parties' expressed
intentions while at the same time fulfilling our
'statutory mandate, we find that Article 3.3 should
guide us in determining the just and reasonable
remedy. We therefore find that the just and
reasonable remedy in all the circumstances
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(including the terms of the collective agreement)
1s one week's notice or one week's pay in lieu
thereof. In this case, the griever received the
requisite notice and she is therefore not entitled
to any further remedy in this respect.
Nevertheless --- in that case --- as the employer
had adduced no evidence whatever to justify termination, the
Board held ion the basis of rights established by the LZLQ.!U
Emolovees Collective Barqaininq Act) that <he grifvor ' s
record should be cleared, as follows:
'Ihe Ministry in the case before us utterly failed
to substantiate its conclusions and thus they must
be found to Ix devoid of merit as all allegations
of inadequacy and impropriety were denied by the
griever .
1Ihe griever is therefore entitled to a remedy in
the form of an order that the Ministry correct the
griever's personnel file and employment record so
to eliminate any conclusion that the griever's
z&duct warranted dismissal in October, 1978.
Further, the Board emphasized that it was for the
Board and not the employer to decide whether the termination
could be characterized as disciplinary or non-disciplinary,
a question which "could only be decided in light of the
evidence."
dur attention has been drawn to a more recent case
in which it appears that the ultimate result is not known as
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of this date. In Killer and MacPhail 530-531/82, a panel of
this Board found there had been no just cause for the
termination of two casual employees at the Cornwall Jail.
Nevertheless, adopting the same reasoning as in Boucher Andy
Trumbley, the Board concluded that the only possible remedy
was that "the employment records and personnel files of each
Grifvor shall be adjusted to delete any reference to
dismissal..." and that "the provisions of Article 3.11
prevent the Board from reinstating the Grievers and also
prevent the Board from making an award for lost wages."
A very different view of Piller and E%CPhail
was
taken by the Divisional Court (Craig, Holland and Boland
JJ) on March 21, 1984. In the judgment delivered by Craig J.,
it was said:
me collective agreement distinguishes clearly
between "dismissal" and "termination". (See Art.
3.11 and Art. 27.6.2)
In addition, the Act (Crown Employees Collective
Bargaining Act) provides for grievance in the event
of dismissal (Sect. U(2) and the Arbitration of
disputes by the Grievance Settlement Board
(S.19 (1)).
Employment was terminated by notice and the Board
found as a fact that termination was a dismissal
without cause.
‘The Board then came to the question of ~'remedy" and
held that Art. 3.11 prevented it from reinstating
the Grievers and also from making an award for lost
wages.
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In our opinion the Board gave Art. 3.11 an
interpretation which is patently unreasonable in so
doing (the highest possible test); that is in the
light of Art. 27.6.2 of the Collective Qreement
and Sections 1812) and 19(l) of the Act. It is our
view that the Board was not limilxd to a remedy of
1 week's pay or 1 week's notice by Art. 3.11.
Also it is our opinion that, in holding that it
could not fashion a remedy beyond Art. 3.11, the
board impliedly erred in jurisdiction pursuant to
the Act. lhat is the Act clearly provides a
discretion to fashion a remedy for the applicants
in the circumstances.
me Ebard recognized the distinction between
"dismissal" and "term~na~tlon" in finding dismissal
without cause, but when it turned its attention to
remedy, it indicated that termination included
dismissal.. We would add that the Board cannot
amend the Collective Agreement (Art. 27.12).
The application is therefore allowed; the award
herein is set aside and the matter is remitted to
the Board to be dealt with according to law. costs
to the applicant.
On May 28, however, the Court of Appeal. after
hearing counsel for both parties, granted the employer leave
to appeal.
Notwithstanding the conflicting views quoted above,
this panel of the Board is of the opinion that the grievance
of Mr. John Tyynela must be dealt with on its own merits and
is not necessarily affected by the results in other cases.
”
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The griever's Case is that his "dismissal and
release... is without just cause."
The employer's position is equally clear: that
there were valid reasons for terminating the services of the
griever --- by whatever name that action be described. The
question of a remedy, which was the question discussed in
both Boucher and Miller,, does not arise unless and until it
is found that there was a dismissal without just cause. In
our view, it is for this Board.to determine whether the
employer's reasons were valid or invalid, that is, just or
* unjust. Our power and duty to make such a determination has
not been questioned in previous decisions of this Board or
the Divisional Court.
It must first be pointed out that the griever had
.no disciplinary record in the usual sense. He had never
received a suspension or even a written reprimand.
Unfortunately, no written appraisal was ever made during his
service of approximately 21 months. In that period he was a
part-time casual for almost 13 months, during which (as
provided by his contracts) he was to work no more than 24
hours per.week and often much less. In fact (according to
Exhibit 25) from August, 1982, to April, 1983, inclusive he
worked an average of only eight shifts a month, or less than
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two'shifts per week, i.e. less than 16 hours. Thus, oppor-
tunlties to observe his performance were more limited than
if he had been employed full-time throughout.
The griever was appointed to the unclassified staff
July 21, 1982, on the recommendation of Lieutenant R.
Johnston, training officer. He received some rather
elementary instruction and of course was told to read
standing orders and other documents. There is no evidence
of any complaints about him before May, 1983, when he
accepted a new contract under which his "normal hours" were
to be 40, effective from May 25 to August 24. There are two
versions of the document.
Exhibit 3 is signed by Mr. D.S. Smith (now
Superintendent) on behalf of Mr. W.E. Peters, Superintendent
at that time. Added below the signature are the following
words: I4 To fill vacant position left by J. Smith who 1s
acting for G. Fontaine (off sick)."
In cross-examination, however, Mr. D.S. Smith was
shown Exhibit 11, which is identical to Exhibit 3 except
that it does not bear the words added to Exhibit 3, which
probably represent an afterthought in the office.
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I" August the 40-hour arrangement was extended to
November 24 by Exhibit 28, and in November it was again
extended to February 24, 1984, Exhibit 29. It is in the
usual form for a full-time casual, stating:
Normal hours of work not to exceed 40 per week.
Services may be terminated on one week's notice by
either party.
It also gave the names and addresses of the OPSEU
Area Representative and the Monteith Local President.
Mr. Tyynela signed opposite the words "I accept the
above terms and conditions."
Notwithstanding the November "contract," the
griever two months later was notified of a radical change.
Dated January 26, 1984, and signed by Mr. L. . Chevrier,
Acting Senior Assistant Superintendent, Exhibit 26 simply
stated:
Please bz advised that effective February 6, 1984,
your contract will be adjusted from 46hour per
week to 24-hour per week.
The employer's witnesses have explained that the
griever's services as a full-time casual were no longer
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needed because a full-time position in the classified
service had recently been filled. In view of the use made
of other casuals, it is apparent that the real reason for
the change was dissatisfaction with the griever's words and
conduct, evidenced by a number of written complaints from
senior members of the staff between December 29, 1983, and
January 18, 1984.
On February
1 Mr. Tyynela grieved in Exhibit 13
that the reduction of his hours was "a disciplinary act
without just cause." He was told in the reply from
Lieutenant E. Bouchard, dated the next day, Exhibit 13A
that:
It is the prerogative of management to schedule
casual employees.
As a 24-hour casual Mr. Tyynela had no fixed
schedule and worked only when called. In February he had
five shifts and in March he had eight. In April he worked
two
shifts before being "released" by a letter, Exhibit 8,
dated April 17 and delivered to him by the staff on April
26. The letter also said:
In keeping with the collective agreement, Article
3-11 (sic) your release will be effective one week from this date.
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It must be mentioned that Exhibit 7, a "contract"
signed by the Superintendent and by Mr. Tyynela on March 16,
1984, was stated to be effective from February 6 to December
31, with the usual proviso that "services may be terminated
on one (1) week's notice by either party."
This brings us to a review of the reasons which- led
the employer to terminate the services of the griever.
Montelth is among the smaller institutions
maintained by the Ministry of Correctional Services, The
jail is theoretically "maximum security," and accomodates 26
temporary detainees. Separate but connected with the jail
building is the minimum security Cofirectional Cen tre for
about 120 inmates, who have work on a 900-acre
farm,
including certain logging operations. Superintendent D.S.
Smith testified that he has 38 Classified Officers, four 40-
hour casuals and five 24-hour casuals, although there are
variations from time to time.
The Superintendent meets with a number of his
senior staff each morning. From them he learns of incidents
involving inmates or officers. He had little or no contact
with @he griev'dr, but did receive a telephone call in April,
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1984, when the griever complained he had been "blacklisted"
and was not getting sufficient work as a .24-hour casual.
The Superintendent's decision to terminate was really based
on information received from supervisors and experienced
officers.
(1). August 8, 1983
Exhibit 27 is an "Occurence Report" made by the
grievor to Mr. Peters (then the Superintendent) on August 8,
1983, after he had been a 40-hour casual for several weeks.
It was headed: "inmates' poor attitude towards officers" and
stated:
Sir: At 2230 hours.t?onday of above date, a number
of inmates in #C Dorm had failed to clean of (sic)
their locker tops and put away their clothes after
the order had been given at 2235. I entered the
dorm and asked them what was wrong with them. When
they still were slow to clean up I told them that
four year old children ware more cooperative.
b!r . Tyynela went on to name four inmates and said
they "all wrote insult complaints regarding my deportment."
In his testimony, the griever also indicated that
he thought inmates did not show sufficient respect for their
custodians.
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(2) December 29, 1983
OKl this occasion the griever was on duty alone at
the jail during the night shift. He seems to have been
under the indirect supervision of Sergeant Norm McKenzie
whose primary responsibility kJa.9 for "Admissions and
Discharges." Neither he nor the lieutenant functioning as
shift supervIsor worked close to the jail. The McKenzie
report of December 29 to Superintendent Smith, Exhibit 4,
was as follow:
Sir: &I Dec. 2843 Mr. Tynela (sic) was assigned
to work in the jail from 1620 hrs. to 2300 hrs.
Between the hours of 1900 and 2230 hrs. I had go to
(sic) the officers corridor and quiet prisoners
down by my presence & by talking to them on several
occasions.
At 2150 hrs I entered each cell for a security
check, at 2200 hrs Mr. Qnela blew his whistle and
ye&xi Blues of the PJ's on, as he went to the
holding unit to tell them the same thing; prxoners
in #l & 2 started whistling & yelling. I again
went to the corridor to quiet them down. At 2230
hrs I shut off all lights & turned on the nite
lights and then I left for the duty office. Mr.
'Iynella phoned at 2245 hrs. and stated that the
night lights were not working and that there was
unrest in the jail. I went to the jail and could
hear yelling as climbed (sic) the stairs. I went
in and had to threaten to lock up several
prisoners if they did not quiet down, which they
.did prisoners (sic) asked me to get Mr. 'Qnella off
their backs.
Earlier Mr. 'Qnela made the statement that we
should put a trough in each cell and feed them
pellets, as we were treating them too good. Also
.
L./
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stated the system has failed and that we should try
something a little more harsh without being
inhuman. It appears that Mr. 'I'ynela's approach to
the inmate population leaves a lot to be desired.
In his testimony, Sergeant McKenzie was even more
emphatic. He said he had never experienced such inmate
hostility to one officer. When discussing the incident with
the shift supervisor, he gave notice he would refuse to work
again with the griever. The griever received no more
assignments to the jail. At the Correctional Centre of
course he worked with other officers.
In his testimony the griever gave many more details
about the incident. He said inmates would not comply with
his request that they stop smoking and stop making a noise.
He turned off the TV 15 minutes early (as he knew others had
done) and someone retaliated by throwing a cup of water at
him. When the Sergeant came, he pointed out that the
griever had no authority to impose discipline by turning off
the TV before the scheduled time, but the Sergeant a150
cautioned inmates about their rowdy behaviour.
(3) January 5, 1984
On this date, Mr. R.T. Johnston,' the Staff Training
Officer, reported to Mr. Smith a conversation two weeks
i .
. . . .
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earlier. This report may have been inspired by Sergeant
McKenzie's complaints, because the Superintendent was
certainly interested in such complaints. The Johnston
report, Exhibit 18, is as follows:
Sir: Ch the afternoon of Ccc. 22, I was going over
some staff training areas with Mr. Qynela when he
told me that he felt very strongly that the
Correctional Services were too easy on the inmates.
Hs said the inmates are treated to (sic) good. He
also stated the inmates should be made to work 12
hour days, then fed a pill from a trough which he
claims would be sufficient for them.
I counselled him on these areas stating that we
must follow ministry Policies, and that our
personal feelings could not overrule our judgement
in making decision when handling inmates.
Bill felt quite strongly about what he said but
said he would try not to let it effect his work at
Monteith.
In his testimony, the griever declared he did not
allow personal opinions to affect his work, and he always
tried to be loyal to the policies of.the Ministry. He made
clear, however, that he believes inmates are unduly pampered,
that in particular they are fed better than many other
people and that society cannot afford it. He had simply
told Mr. Johnston that there were cheaper but humane methods
of feeding inmates; such as "some kind of mechanical or
pellet form of feeding."
,. . .
../
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(4) January 11, 1984
On this date, the griever addressed a report to Mr.
Smith that he had heard an inmate named Lortie "making smart
remarks about me, so I ordered him to pile up some chairs in
the day room for something better to do. me refused. I(
The
griever then described another incident in which Lortie
disobeyed an order and "he was very upset at me, another
show of disrespect toward authority."
(5) January 12, 1984
Exhibit 22 is an "Occurrence Report" made to Mr.
Smith by Sergeant McKenzie, as follows:
Sir. ~3 the above date and time while waiting for
a new arrival to shower and dress, I over heard a
conversation between Mr.'Qnella and inmates Lot-tie
Peter and C&X- Daniel, regarding the feeding of
inmates by trough & chicken feed, and also of
shackaling (sic) them to beds when they are bad.
Both inmates were upset at his remarks.
The griever's version is different. During a
"clothing change" the inmate Gour had comp.lained about the
institution, saying the books were "trash" and the food was
"garbage. " When the griever took issue with these remarks
"they became upset and accused me of something I had not
said. Gour alleged I'd mentioned shackling and feeding on a
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previous occasion." Questioned about this, the griever
said: “No --- not in that manner." Questioned further, he
said that in another room at the Correctional Centre he had
told Gour and Lortie that in other countries they would not
be treated so well. 'I I felt forceful persuasion was
necessary, so I told them that if I had my way and if
they were disobedient they'd deserve to be shackled to their
beds and fed pelleted rations from a self-feeding device. I
pointed out I was not recommending animal rations but
nutritious rations."
The griever said the conversation was about a month
before the one reported by Sergeant McK'enzie and "I felt
they were adding to my statements.'
(6) January 18, 1984
Exhibit 19 is the following brief report to the
Superintendent from the training officer, Mr. Johnston:
Sir. ch Jan 18, 1984 while I was on my way to the
back door to supervise gangs out (1255) I noticed
CT. 'Pyynela escorting N/A's from the dining hall
and he was approximately l/2 way up the line with
. no other officer with him. I stopped the group and
told Mr. Tyynela to move to the back of the group
he was escorting. Mr. Tyynela has been instructed
how to escort inmate proprly.
” .
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Reports on this incident were also filed by Mr. I
J.V. Stevens, Exhibit 15, and a member of the kitchen staff,
Mr. M. Sampson, who said:
MT. TJnnella brought 10 N/A.s down to the dinning
r-corn and sat them down at a table not set up.
We allready had a table set up on the opposite side
of the dinning room.
Mr. Goslon came down to the dinning & told him what
do.[sic) Line them up & get their meals.
After the meal Mr. 'Tynnella came to the kitchen and
'asked for 3 men to clean that table. But he left
the N/A.s sitting at the table & told my men to
clear the table.
Mr. Reirner went out & told him to get the men up &
then clear the table.
He then of all things sat them down at another
table.
He was then told to'move them on to the cell area
for change. He did this but had 4 men ahead of him
& 6 men behind him. He was told to get his men
ahead of him so he could see them all.
The N/A's mentioned above were newly-admitted
inmates brought to lunch later than others, which probably
di,sturbed the routine of the kitchen staff.
Mr. Tyynela has admitted he knew that in escorting
inmates his place was at the rear --- where he could keep
them all in view.
,,- .
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(7) January 27, 1984
According to the testimony of his supervisors, the
griever himself requested an interview on January 27 and
said he had been accused of nearly causing a riot. Further,
according to Sergeant McKenzie, Exhibit: 21, he asked "what
was the use of having an ICIT team," to which the Sergeant
replied that the ICIT (which is a Crisis Intervention Team)
"had nothing to do with the conversation at hand."
On or about the same date the griever was advised
by Lieutenant Chevrier that he was being reduced from 40
hours to a maximum of 24 per week effective Febuary 6. As
previously mentioned, he worked very few shifts thereafter.
It is apparent that by this time management was
convinced the grievor could never adapt to the requirements
of work as a correctional officer. In the autumn of 1983 he
had competed for a vacant classsified position at Monteith.
This was of special importance to him because he had hoped
for an assignment to the farm operations at the Correctional
Centre. As a graduate from the University of Guelph in
Agriculture, and having had some experience as a farmer, he
thought himself qualified for such an assignment but was
told he needed custodial experience. In the competition,
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I the selection board gave him a low rating, Another compe-
l tition was held later and the griever applied again. The
result wa.5 a letter from Mr. B. Larche, Acting Deputy
Superintendent, Exhibit 14, which summed up management's
view of Mr. Tyynela, as follows:
Please be informed that you will not be interviewed
for the position of Correctional Officer 1.
ch the last competition your showing did not meet
with the standards that are acceptable to our
Ministry.
Since the competition, you were counselled on your
outspoken feelings on how to handle and treat
inmates.
A short time after, while on a tour of duty in the
jail setting, you had the same approach with the
inmates of that setting. 'Ibis caused problems with
the inmates and their conduct was getting out of
hand. You had to get assistance in order to
restore peace and quiet.
Q3 January 18, 1984, once again you wze counselled
re., your approach to inmates.
This approach is not acceptable and could become a
security problem.
A marked improvement is expected and failing this
it could result in the termination of your
contract.
Mr. Tyynela presented a grievance on February 1,
but it was rejected the next day by Lieutenant E. Bouchard
who simply said: "YOU were not selected because YO"lT
performance was not satisfactory and you had done poorly on
your last interview."
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Superintendent Smith testified that the position of
one 40-hour casual became redundant in February because a
classified position had been filled. Among several 40-
hour casuals, the griever was considered to be the least
qualified, and for this reason he was reduced to the 24-hour
level again.
Early in April the griever telephoned Mr. Smith
complaining of discrimination. The Superintendent told him
the staff had difficulty reaching him because he had no
telephone at his farm. The qrrevor, on the other hand, con-
tends that supervisors knew he could be reached by calling a
neighbour or by calling his wife at her place of work. He
could not afford the installation cost of $5,000 for
connecting telephone service to his farm.
Mr. Tyynela complains --- not without reason ---
that in his case supervision and training had been
fragmentary and inadequate. Casual employees in 1982 and
1983 never received performance appraisals, but Mr. Smith
states that the mistake has now been corrected. Apparently
recognizing his limitations, the griever wrote Lieutenant
Johnston on March 22, 1984, Exhibit 20, thanking him for
certain training received and urging that "more training is
needed immediately." He was probably right.
the selection board gave him a low rating. Another COmpe-
tition was held later and the griever applied again. The
result Was a letter from Mr. B. Larche, Acting Deputy
Superintendent, Exhibit 14, which summed up management's
view of Mr. Tyynela, as follows:
Please be informed that you will not be interviewed
for the position of Correctional Officer 1.
Cn the last competition your showing did not meet
with the standards that are acceptable to our
Ministry.
.I' Since the competition, you were counselled on your
outspoken feelings on how to handle and treat
inmates.
A short time after, while on a tour of duty in the
jail setting, you had the same approach with the
inmates of that setting. 'Ihis caused problems with
the inmates and their conduct was getting out of
hand. You had to get assistance in order to
restore peace and quiet.
Ch January 18, 1984, once again you here counselled'
re., your approach to inmates.
'Ibis approach is not acceptable and could baccme a
security problem.
A marked improvement is expected and failing this
it could result in the termination of your
contract.
Mr. Tyynela presented a grievance on February 1,
but it was rejected the next day by Lieutenant E. Bouchard
who simply said: "You were not selected because your
performance was not satisfactory and you had done poorly on
*our last interview."
.
L
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Superintendent Smith testified that the position of
one 40-hour casual became redundant in February because a
classified position had been filled. Among several 40-
hour casuals, the griever was considered to be the least
qualified, and for this reason he was reduced to the 24-hour
level again.
Early in April the griever telephoned Mr. Smith
complaining of discrimination. The Superintendent told him
the staff had difficulty reaching him because he had no
telephone at his farm. The griever, on the other hand, con-
tends that supervisors knew he could be reached by calling a
neighbour or by calling his wife at her place of work. He
could, not afford the installation cost of $5,000 for
connecting telephone service to his farm.
Mr. Tyynela complains '--- not without reason ---
that in his case supervision and training had been
fragmentary and inadequate. Casual employees in 1982 and
1983 never received performance appraisals, but Mr. Smith
states that the mistake has now been corrected. Apparently
recognizing his limitations, the griever wrote Lieutenant
Johnston on March 22, 1984, Exhibit 20, thanking him for
certain training received and urging that "more training is
needed immediately." He was probably right.
.’ :g
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The griever is 35 years of age, married, with no
children. He graduated from Guelph University in 1972 and
returned to the farm, which is 13 miles from the Correct-
ional Centre. He~improved it but had financial difficulties
and sought other work in 1982. Apart from two or three
"cautions" his work at the Centre seemed acceptable, which
he thought certain when he became a 40-hour casual. Mr.
Johnston had ind ,icated he was too "familiar" with inmates
and he therefore tried to be more "firm." (Mr. Johnston's
version is that the griever went from one extreme to the
other.) Mr. Tyynela conceded that some of his remarks to
inmates had been unwise. He testified, however, that he
feels "treatment of inmates is excessively luxurious,"
mentioning in particular the "recreational facilities with a
sports program every day" and use of the gymnasium each
evening. He believed there were more economical ways of
feeding inmates "without going to such lengths," He referred
to "a different menu every day" and also to "educational
facilities."
Mr. David Jenkinson was called as a witness by the
grievor 's counsel. In 1983 he was President of the Local
Union at Monteith and estimated he had worked on the same
shift with the griever about 105 times, and directly with
,.
e-
i - 24 - kd
the griever on about 35 shifts. He would have evaluated Mr.
Tyynela as "firm, fair, flexible, undoubtedly inexperienced,
competent, resourceful, compassionate." He did not express
personal views to Mr. Jenkinson or suggest the treatment of
inmates was too luxurious. At a meeting with Messrs, Lathe
and Dixon, Sergeant MacKenzie had become flushed with anger
and had to be restrained by Lieutenant Dixon. There was no
,
L
response at that meeting to the explanations given by the
grievor . Mr. Jenkinson said .at least three more casuals
have been hired in 1984,
Also called was Mr. J.E. Budge, an officer with
nine years of experience. He said he had served with the
grievor and rated him highly for being trustworthy, honest,
fair and willing to learn from his seniors. Mr. Brydge had
attended a social gathering in November, 1983, at which he
heard Sergeant McKenzie denounce the griever in
profane
terms as a "preacher" and a "farmer" who was useless at the
LA Centre. He heard the Sergeant making similar remarks at the
Centre in December. In March, 1983, Mr. Brydge had written
a lengthy report to Superintendent Peters complaining that
several officers in the duty office had made very critical
and unfair remarks about Mr. Tyynela, but in his testimony
he could not recall who was present. He said that senior
officers generally felt the griever's performance was
‘i’ * 25 -
.3
inadequate, but he did not agree with them. He had been
told: "YOU are a fine officer but you have a terrible
tendency of always fighting for the underdog. Don't YOU
worry about training; that's our responsibility." In March,
1983, he had been the Local Union's Chief Steward. In a
!1984 meeting he challenged the validity of questions put to
L
i
‘d
Mr. Tyynela by the selection board. He thought they were
more-appropriate in respect of a management position.
Another officer, Mr. K.C. Lee (now the Local
President) emphasized the importance of appraisals -- from
which he said he had benefited. After some years of
training experience as a senior N.C.O. in the Army, he de-
plored the failure to give adequate training and appraisals
to casuals at Monteith. He is himself a member of ICIT and
has taken courses in crisis management. He had advised Mr.
Tyynela to be more strict with inmates and not to give them
so much counselling. The grievor asked many questions but
had never expressed personal opinions to him or criticized
the administration. He thought that with experience Mr.
Tyynela had achieved the correct balance between being
strict and being "soft" to inmates.
Mr. I.W. Gorlock, another member of ICIT, said he
had known the griever since High School days and worked with
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him at the Centre for more than 15 shifts. He had heard
unfavourable comments about him, particularly from Sergeant
McKenzie. but he himself had no complaints. He had never
heard the griever express personal views, although many
questions were asked. Mr. Gorlock had seen the griever
relating well to inmates. He agreed that some officers did
not like working with Mr. Tyynela. He was thought to be
"d.ifferent."
In this case, where performance is an issue, the
testimony given by management witnesses is uniformly
unfavourable to the griever and the testimony of other
witnesses,is consistently favourable. They cannot all be
entirely right --- or entirely wrong.
More importance must be attached to the statements
made by the griever himself.
No doubt Mr. Tyynela entered upon a new career with
the best of intentions and a desire to learn the job well.
It is clear, however, that his expectations were
unrealistic. He has said himself that he lacked experience
in dealing with people. Perhaps for this reason he expected
or demanded "respect" from inmates. When respect was not
forthcoming, he felt offended and developed strong opinions
- 27 -
about what he regarded as the excessive luxury enjoyed by
inmates. These opinions were most unwisely expressed to
othe'r officers and also to certain troublesome inmates. The
philosophy he explained in his testimony, as he may not
realize, exemplifies the punitive approach rather than the
rehabilitative approach which is the Ministry's policy. The
two approaches are not easy to reconcile, and it was
certainly beyond the capacity of Mr. Tyynela to do so.
The griever has asserted that his personal opinions
did not affect the work he had to do. On the other hand, he
spoke his mind to both -Lortie and Gour, two of the inmates
he had found to merit discipline, which is evidence that his
work was in fact affected by his opinions. His remarks (un-
doubtedly quoted later to other inmates) made clear that "if
I had my way" insubordination would be punished in ways the
Ministry does not tolerate --- but which he considered would
be appropriate.
In our view such extreme opinions and such rash
remarks to inmates are not compatible with the functions of
a correctional officer. They might be acceptable in many
other jurisdictions, but not in Ontario. Notwithstanding
his personal integrity and firm convictions about what Is
right and what is wrong, we are satisfied that the griever
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was not suitable or adaptable for duties at a Correctional
Centre. The conclusion must therefore be that there were
valid reasons for terminating employment which constituted
just and sufficient cause for the dismissal of the griever.
The grievance fails and must be dismissed.
Dated at Rockwood this
17th day of December, 1984
Member