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HomeMy WebLinkAbout1984-1252.Woon Sam.87-06-05BETWEEN: IN THE MAmER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINIh Before TRE GRIEVANCE SETTLRMRNT BOARD OPSEU (Karen~ Woon Sam) Griever -and- THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF CORRECTIONAL SERVICES) Employer BEFORE: FOR THE GRIEVOR: FOR TRE EMPLOYER: HEARING DATES: R. .J. Roberts Vice-Chairman T. Traves Kember G. Peckbam Member 3. Thomas Barrister and Solicitor J. F. Benedict Manager, Staff Relations Hinistry of Correctional Services February 22 and Way 14, 1985 1. ..,. I DECISION This is a case which has been around for some time. Its resolution was delayed pending the final disposition of Re Miller and MacPhail, GSB numbers 530/82 & 531102 (Verity). Recently, the board issued an award which disposed of the issues in the latter case and, accordingly, we now proceed to resolve the case at hand. In this case, the grievor, who was a part-time Correctional Officer employed under a limited-term contract, was terminated after the employer found out about a relationship she had with an ex-inmate. At the hearing, the Ministry contended, inter m, that when'the grievor chose to engage in this relationship she committed a breach of duty to the Ministry which constituted in the circumstances just cause for discharge. For reasons which follow., the board concludes that the breach.of duty did not justify discharge. Lesser discipline should have been imposed. Accordingly, the grievance is allowed in part. According to the evidence, the grievor commenced employment as a @art-time Correctional Officer at the Toronto West Detention Centre on May 16, 1983. This employment was by way of \ appointment to.the unclassified service under a limited-term contract which was due to expire on March 31, 1984. This contract was extended through two renewals to an expiry date of March 31, 1985. The Toronto West Detention Centre is a maximum security institution which is used as a remand or holding centre. Most of the inmates are persons being held in custody pending and during , ! i i 2 I trial. Sentenced inmates who are awaiting transfer, parole violators and individuals being held for deportation are also housed in this facility. These. inmates are supervised by a staff comprised of 220 full time employees'and'30 members of the unclassified service. Of the latter, 16 are Correctional Officers employed on limited term contracts. Mr. F. DuCheneau, the Superintendant of the institution, testified that there were 400 male inmates and 90 female inmates in the institution. On July 4, 1984, an inmate who went by the name of Ricardo Spencer was admitted to the institution. He was being held for deportation to the United States after being charged with defrauding a Toronto hotel out of accommodation, etc. On August 19, 1984, he was released into the custody of the immigration service and deported to Los Angeles. Apparently, during his stay at Toronto West Mr. Spencer' became attracted~ to the grievor. Ms. Woon Sam testified that she supervised Mr. Spencer eon his first day at the institution and saw him on about ten other occasions during his incarceration. There was no evidence, however, to indicate that any relationship was established during this period of time. Soon after his deportation, however, Mr. Spencer telephoned the grievor at the institution and asked her for' her home telephone number. The grievor gave it to him. Soon after that, Mr. Spencer returned to Toronto and began to date the grievor. The grievor testified that from September to mid-October she saw Mr. Spenctr on about five occasions. On about October 12, 1984, 3 the grievor returned to Los Angeles with Mr. Spencer and stayed there until October 16 when she terminated the relationship and returned to Toronto. It was during this visit that the employer became aware of _ the existence of this relationship. On October 15, the griever's father went to the institution and expressed grave concern as to her whereabouts and safety. He told Mr. G. W. Pickering, the Security Officer, that his daughter had left for Los Angeles with Mr. Spencer and that he could not reach her at the telephone numbers that she had given him. On the next day, Mr. Woon Sam again visited Mr. Pickering and expressed fear that his daughter was being held against her will in Los Angeles. He stated that. he had contacted the police in Toronto and Los Angeles but neither police force was willing to treat the situation as one involving a missing person. Mr. Pickering assured the grievor"s father that he and his staff would do their utmost to cooperate with him and the police in his efforts to locate his daughter. On October 19, the grievor met with Mr. Pickering and Mr. DuCheneau in the office of the Security Officer. In her testimony the grievor said that she knew that the pur'pose of this meeting was to discuss her involvement with Mr. Spencer. She said that she had some indication that her job might be at stake because her father had told her that Mr. Pickering advised him on October 15 that her job was on the line. After the grievor confirmed that she had been involved in a relationship with Mr. Spencer, Mr. Pickering asked her if she was 4 aware of the Ministry po.licy with respect to correctional staff not associating with ex-inmates. The grievor said that she was. When he heard this, Mr. DuCheneau told her he could no longer have any confidence in her as a Correctional Officer because she _ had compromised her position and that of the institution. On October 24, 1984, Mr. DuCheneau sent the grievor the following letter: "Ms. K. Woon Sam 7658 .Roselle Cres. Mississauga, Ontario L4T 3N2 Dear Ms. Woon Sam: Further to our meeting on October 19th, 1984, this is to advise you that, effective October 26th, 1984, your services are no longer required. This complies with the terms of your contract and since you were not scheduled for any work, no money is due you .other than pay ~for those shifts you worked in the early part of the month. 'F.A. DuCheneau' F.A. DuCheneau Superintendent" The letter purported to give the grievor one week's notice of termination of her contract. At the hearing Mr. DuCheneau elaborated upon his reasons for this termination. He stated that at the meeting of ~Cctober 19, he did not have the impression that the grievor had been willfully devious. He felt that a combination of rule-breaking and naivety on her part led to the problem. It was his opinion, he stated, that the grievor had in fact compromised herself, that the image of the institution and all other correctional staff had -_ 5. been affected possibly even internationally. He said that he felt that as a casual employee, it was reasonable to assume that the grievor at some time would seek employment in the classified service and she ought to make every effort to demonstrate compliance with the rules. She knew the rule, he stated, yet she took no steps to advise him of her relationship so that he could advise her that it might not~be in her best interests or those of the institution. He felt, he stated, that the grievor was not suitable to continue as a Correctional Officer. The policy against associating with ex-inmates was issued on April 19, 1984. It read as follows: "'In order to prevent staff members from being accused of any conflict.of interest or possible breaches of security, staff members are not permitted to enter into any personal relationship not in the line of duty, with any inmate without first receiving the written approval of the institutional or branch.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 relationship 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/her with the institutional or branch head. The institution@ or branch head will be the sole arbiter of what constitutes a conflict of interest or possible threat to security in the afore-mentioned relationships, and will advise the staff member in writing of his approval, or that the personal relationship is to be terminated'. In actual implementation of this policy, staff should submit a written report providing details of the relationship to the undersigned, preferably sealed in an envelope. Upon receipt, the submitting staff member will receive a written acknowledgement. Should any concerns arise, please discuss the matter with a member of Senior Staff or the undersigned. -. . ,: i 'F.A. DuCheneau' "F.A. DuCheneau" 6 This policy was essentially a direct quotation from that portion of‘the.Manual of Standards and Procedures which addressed the conduct and deportment of staff. '. Mr. DuCheneau sent copies tom the shift supervisors with instructions that the rule be either read or brought to the attention of staff at the muster for five consecutive days. In addition, copies were posted in the staff lounge, muster room and several bulletin boards throughout the institution. Mr. DuCheneau testified that he decided to issue this notice because there had been two or three situations in the institution where staff appeared to have difficulty determining what to do when approached by inmates or ex-inmates who wanted to become involved with them. He said that staff were coming to him with verbal requests and he decided to issue the notice to show that there was a procedure to follow and that requests ought to be made in writing. He added that since the incident giving rise to the present grievance, all new employees were being required to sign this policy in order to ensure that they were aware of what to do when approached by ex-inmates. This procedure was instituted, he said, because of what happened with the grievor and another Correctional Officer who had been disciplined for maintaining a relationship with an inmate. The grievor testified that at the time she began her relationship with Mr. Spencer she had not seen the ex-inmate : i. . 7 policy but had heard rumors that there was one in force. Generally, these rumors grew out of discussions about the discipline which was imposed upon the other Correctional Officer to whom Mr. DuCheneau referred. The grievor stated that it was - these rumors which she had in mind when she responded to Mr. DuCheneau and Mr. Pickering that she was aware of the institution's policy. At that time, she stated, she thought that the policy was that it was wrong to have a relationship with an inmate but not ex-inmates. She did not understand, she said, that the concerns of the Ministry also extended to relationships with ex-inmates. In cross-examination, she denied seeing Mr. DuCheneau's memo and stated-that she never heard it read out at muster. Ate the hearing it was submitted on behalf of ,the Ministry that the grievor must have established a relationship with Mr. Spencer knowing that it was improper to do so, either upon the basis of Anowledge of the policy or common sense. It was submitted that the~policy of the Ministry regarding contact with ex-inmates was obvious and manifestly reasonable and sensible. \ It was stressed that the grievor was an experienced part-time Correctional Officer who had available to her the Manual of Standards and Procedures which contained this policy and further, that the grievor must have heard the policy read out atthe muster because it was read out for five days in a row. In this regard, it was shown that the grievor was present within #the institution 8 when the policy was read out. This was only six months prior to the time when she commenced a relationship with Mr. Spencer. We agree that on a balance of probabilities, the grievor must have become aware of the policy prior to entering upon her - relationship with Mr. Spencer. But this does not necessarily end the matter. According to its terms, the policy governing relationships with ex-inmates left it to the discretion of the staff member to report his or her relationship. It stated that the relationship had to be discussed with the institutional or branch head "should the staff member . . . feel that the relationship.could be construed by others as a conflict of interest or possible breach of security." It goes. without saying, however, that it would be up to the staff member to exercise this discretion in a reasonable manner. ., In the present case, the conduct of the grievor fell considerably below this standard. And this, it seems to the board, was so right from the very start. When Mr. Spencer called the grievor at the institution and asked her for her telephone number, the grievor was well aware that she was talking to a person who had been an inmate days earlier. In all likelihood, there remained in the inmate population several persons who retained varying degrees of contact with Mr. Spencer. The grievor should have realized there and then that if she became embroiled in a relationship with this man he might attempt to induce her to .,"do favours" for his friends. It should not have taken more than a moment's reflection for the grievor to 9 realize that this attempt by Mr. Spencer to begin a relationship with her had the potential to create a real and present threat to the security of the institution. It was her duty to report this contact as soon as it occurred and seek direction from Mr. DuCheneau. When she did not and then further compounded her breach of duty by associating with Mr. Spencer when he returned to Toronto, the grievor gave the Ministry just cause for discipline. Moreover, there is little doubt that this dereliction of duty warranted imposition of a severe disciplinary sanction. There is strong support in the evidence for an inference that the grievor suspected that Mr. Spencer was in Canada illegally when he came to Toronto to visit her. Yet she.associated with him on several occasions regardless of.the conflict that this created with her : status as a peace officer. At the same time, it does not appear that the grievor's misconduct warranted dismissal. Rather, a lengthy suspension would have been more appropriate. The grievor had an excellent work record. But for the incident at hand, the Ministry considered her to be an ideal candidate for full time employment. In fact, the evidence indicated that at the end of 1983 and again in March, 1984, the grievor was approached by the Scheduling Officer at the institution and asked if she would like to go on full-time status. We think that in light of the grievor's record a more appropriate penalty would have been a suspension of about three 10 months in duration. This would seem to be in line with previous decisions of the board in matters of this nature. For ~example, in Re Johnston and Ministrv of Correctional Services (19831, GSB 14/83 (Verity), a Correctional Officer who maintained a relationship with a close friend of an inmate and came into contact with the latter when he knew that he was unlawfully at. large was given a four month suspension. In Re Erickson and Ministry of Correctional Services (19761, GSB 12/75 (Beatty), a probationary Correctional Officer who permitted an ex-inmate to join his party during a night of drinking and socializing was given a five week suspension. The misconduct of the grievor, we believe, was considerably more serious than that which occurred in Erickson but somewhat less serious than that in Johnston. We decline to'reinstate the grievor under a limited term contract similar in nature to the ones she previously executed with the Ministry. In so doing, we acknowledge that in its final disposition of Miller and MacPhail on March 2, 1987, the board exercised its remedial jurisdiction under s.19(1) of the Crown Employees Collective Bargaining Act,inter u, to reinstate the grievors for a period of time equivalent to that which would have remained in their contracts if they had not been dismissed. But this relief must be regarded as extraordinary. Rarely will the board be moved to reinstate a contract employee after tne actual expiration of his or her limited term contract. In this regard, see Re Smith and Ministry of Health (19871, GSB 102/84 (Roberts). 11 Accordingly, our De&sion is that the gsLevance is allowed in' part. It is awarded that a three month suspension without pay shall be substituted for the dismissal of the grievor, and we direct that the records of the grievor be amended to reflect this- development. We also award the grievor damages in a lump sum, based upon the number of hours, including over-time hours, she wou~d‘have reasonably be expected to work. upon returning from her suspension under her final contract which was due to expire on March 31, 1985. The grievor also will be entitled to interest upon this lump SUITI calculated in accordance with the formula determined in Re Hallowell House Limited and Service Employees InternstiOnal Union, LOCal 183 (1980), 10 L.R.B. Rep. 35. We will retain jurisdiction pending implementation of the terms of this Decision. DATED AT London, Ontario this 5th day of June 1987. “&Ire T. Traves G. Peckham Member