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HomeMy WebLinkAbout1985-0439.Kiviloo.86-05-13SETTLEMENT 190 DUNDAS STREET WEST. TORONTO. o.NTAmo. MSG II9-sum ZWJ TE‘EPHONE~ rr9/599-ass9 439185, 657185, 658185 659/85, 660185, 661185 662185, 726185, 727185 IN THE MATTER OF AN ARBITRATION Under . THE CROWN EMPLOVEES,COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Peter Kiviloo) and The Crown in Right of Ontario (Ministry of Correctional Services) Before: P. M. Draper Vice-Chairman I. Freedman Member A. M. McCuaig Member Far the Grievor: P. CavaIluzzo Counsel Cavalluzzo, Hayes & Lennon Barristers EC Solicitors For the Employer: D. Brown Law Officer Crown Law Office Civil Minisay of the Attorney General Hearing: December 11th and 20th, 1985 January Mh, IGth, 27th, 29th, 1986 February Xth, 1986 April llth, 1986 DECISION The Grievor, Peter Kiviloo, was dismissed from his employment as a Probation and Parole Officer 2 effective August 19, 1985. The letter of dismissal is appended hereto. The grievance which followed (727/85) is one of nine grievances filed by the Grievor between April 26 and August 26, 1985, and eventually brought before the Board. One grievance (726/85) was withdrawn during the hearings. Another (662/85) was set aside at the request of the parties. Kivilco is forty-five years old, is divorced and has two teen-age daughters whom he supported up to the time of his dismissal. He holds a Bachelor of Arts degree, a Master of Arts degree in sociology and is a candidate for a doctorate in adult education. He has been a part-time lecturer at Ryenon Polytechnical Institute in such subjects as criminology and correctional administration and at community colleges and high schools in family sociology. He was considered to have expertise in the supervision of probationers with mental problems and a significant portion of his caseload consisted of such persons. He had twenty years of service with the [Ministry at the time of his dismissal. In 1984 Kiviloo was a candidate in a job competition for the position of Acting Area Manager, Metro Region, of the Probation and Parole Service of the Ministry. The successful cancirdate, Relva Khan, had eleven years of service with the Ministry, first as a Correctional Officer and then as a Probation and Parole Officer. At one point, as a Senior Probation Officer (a position since abolished) -2- Kiviloo had been his supervisor. In his new position, which he took up in September, .1984, Khan had ten Probationand Parole Officers reporting to him, one of whom was Kiviloo. The area headquarters is located at the Scarborough West Probation and Parole Office where Khan, Kiviloo and others had offices. In September, 1985, Khan was transferred to the Ministry head office partly, he states,.because of the strain of dealing with Kiviloo. At about the same time as Khan’s appointment was made and as part of a major reorganizaticn, J. G. Walter was appointed Regional Manager, Metro Region, becoming Khan’s immediate superior, and J. L. Main was appointed Regional Director, Metro Region, becoming Walter’s immediate superior. Walter holds a Bachelor of .Arts degree and has fifteen yean of service with the Ministry. As one of two Regional Managers in the Metro Region he supervises seven offices and two institutions. His office is in Islington. His service with the Ministry having been.almcst entirely on the “institution side” as distinct from the “probation and parole side” he had not previously had supervision of Probation and Parole Officers. He had never met either Khan or Kivilco prior to his appointment. A Memorandum of Settlement dated November 28, 1984, to which Walter was a signatory and which was conduded with the assistance of a mediator, disposed of a number of grievances filed by Kiviloo. In one case a disputed perf cTmance appraisal of August, 1984, was withdrawn by the Ministry. In a second case a period of smpension was reduced and the discipline imposed was not to be relied upon in any disciplinary action taken after March 22, 1986. In a third case a period of suspension was reduced and the discipline imposed was not to be relied -3- upon in any disciplinary action taken after July 27, 1985. The remaining grievances were withdrawn. In a job competition held in January, 1985, to fill the position of Staff Development Officer, Kiviloo was an unsuccessful candidate. At a meeting on March 13, 1985, called by Walter, Kiviloo complained that the successful candidate had been allowed to enter the competition late and that the competition had been “fixed”. Walter replied that only someone with a “warped mind” would think that; that Kiviloo had been the lowest rated of the six cancGdates; and that his experience was one year’s eqerience twenty times over. Kiviloo was to be given an explanation of the late entry of the successf ui canddate but never received it. On April 19, 23, and 26, 1985, Kiviloo wrote to Khan expressing his concern about a statement made to him on April 17th by a probationer under his supervision (whom we shall refer to as B) to the effect that he was hearing voices that told him to kill Kiviloo. B was described to us as a dassic case of paranoidschimphrenia and as having been consistently diagnosed as such for something over ten years. He can be treated to keep his condition under control but cannot be cured. At the relevant time he was thirty-three years old and had been under Kiviloo’s supervision for about two years. He had been convicted on a charge of break and enter and was serving his sentence at the Queen Street Menal Health Centre (Queen Street) on a Certificate of Involuntary Admission issued under the [Mental Health Act which was renewable as required. He escaped from Queen Street twice in June, 1985, once for several days, the second time overnight. There had been two episodes’ of violence in his recent past, one directed against his mother, the other against an arresting police officer, and an apparent attempt at suicide about twelve years earlier. In the letters Kiviloo sucessively asked for direction, asked to ‘be informed of steps being taken to deaf with the problem, complained that ireufficient attention was being given to the matter and finally demanded that an inquiry be held as to why there was no action by the Ministry. The April 26th letter was accompanied by a grievance (439/85) in which Kivilco alleged that the Ministry, by not responding to the letters, was violating Section 18 (1) of the collective agreement, that is, was not making reasonable provisions for his safety during the hours of his employment. He requested that he be relieved of supervisory responsibility f oc B. During the period covered by the letters Khan and Kiviloo m&to discuss the matter. Khan discovered that there was no applicable Ministry policy. He consulted with another Area Manager who sqgested that B be transferred to another area office, and with a Probation and ParoleOfficer at another area office who was experienced in the supervision of probationers with mental disorders who suggested that Kivlooshould work closely with the attending pychiatrist. Kiviloo. consulted Dr. J. Cava, the psychiatrist at Queen Street who was treating 8, who confirmed that he said he heard voices telling him to kill Kiviloo. -5- After receiving the April 26th grievance Khan, having consulted Dr. Cava, decided that the threat to Kiviloo from B was not as serious as Kiviloo thought and that the situation was not urgent. He asked R. Carroll, Ph.D., Regional Psychologist, to investigate B’s condition and give him some guidance. He also consulted a Ministry employee with police everience who told him that there was little the police could do. On May 1st Khan replied to the grievance stating that the matter was under investigation and that he would advise Kiviloo when that was completed. Kivilco responded by letter on the same date demanding “immediate and proper action” . Khan replied in turn on May 13th, passing on the information obtained as a result of his inquiries. The letter contain the following paragraph: In light of (B’s) current situation I will assume his supervision until such time that the mental health authorities determine that his condition has stabilized and that he does not pose a threat to us. His supervision will then be reassigned possibly back to you if deemed appropriate by the mental health authorities. Please therefore arrange to have this case transferred to me at your earliest convience. Kiviloo replied by letter the next day stating that he cGd not want to supervise B “at any time in the future”. On May 13th Walter wrote to Kiviloo notifying him of a meeting on May 22nd at which allegations that he had failed to abide by directions to discuss employment-related problems with Khan and him, and that he was engaging in a campaign of harassment against Khan would be discussed. Kiviloo had written letters in August, September and October of 1984 to the Deputy Minister and in _ -6- September of 1984 to the Minister regarding the selection of Khan in the job competition. The reply in each imtance was that the matter was to be taken up with Walter. The reference in Walter’s letter was to a letter written to the Minister by Kivilooon May 7th. Inalaterletter Walterset upasecondmeetingfor the same date at which the grievance of April 26th would be diicussed. Still later . . the meetings were re-scheduled fcr May 28th. On May 16th and 21st B telephoned the area office and left messages for Kiviloo to call back. On May 22nd another Probation and Parole Officer in the office took a telephone call for Kivilco from B in which hesaid he felt he had been brainwashed and would be given a gun toshoot someone, he drd not know whom. On June 4th Walter wrote to Kiviloo infcrming him that since.he had not attended the second stage grievance meeting of May 2Sth, he considered the grievance to have been withdrawn and that, in any case, the request to be relieved of supervision of B had already been granted. L. H. Rosen, OPSEU Staff Representative, replied to this letter on June 12th denying that the grievance had been resolved. On June 5th the Assistant Deputy Minister wrote to Kiviloo acknowledgng three letters to the Minister, urging him to discuss his concerns with Walter and reminding him, that “professicnal assistance” could be made available to him. Kiviloo replied on June 21st demanding that the letter be withdrawn because of the reference to prof essicnai assistance. On June 6th B escaped from Queen Street and was at large for several On June 10th Walter wrote to Kivilco informing him that he had decided that the two allegationsthat were to have been discussed at the meeting of May 28th had been substantiated, issued a reprimand in both instances and warned of more severe disciplinary action for any furture misconduct. The reprimands led’ to’the filing to two grievances (659/85 and 660/85) by Kiviloo on June 20th. Walter alsoset ameetingfor June lSth,which Kiviloo was to attend on pain of dscipiine, at which his concerns about Kiviloo’s ability to perform his duties, reinforced by a recent discussion with the Regional Psychologist, would be discussed. The meetingwas later re-scheduled for June 20th. On June 20th Kiviloo wrote to Khan inquiring as to what action was being taken in view of another escape by B from Queen Street on the previous evening. Khan replied by letter the next day, describing the procedure to be followed if B should escape again, passing on opknions expressed by Dr. Cava and Dr. Carroll about B’s comEtion and stating that B and everyone involved in the situation had been informed that he was supervising B. Kiviloo replied on June 24th disagreeing with Dr. Carroll’s assessment of B and requesting that Dr. Cava’s opinion of the risk presented by B be obtained. On June 21st Walter wrote two letters to Kiviloo. In one he noted that on the advice of Rosen, Kiviloo had not spoken at the meeting of the previous day, slmmsrized the points he had raised and stated that in view of Kiviloo’s refusal to -a- participate in an employee assistance program he would arrange a mandatory referral on Kiviloo’s return from vacation of which he would be notified at a meetingset for August 14th. This letter led to the filing of two grievances (657/85 and 658/85) by Kiviloo on June 24th requesting withdrawal of the letter. In the other he stated that the meeting of August I&h,~which Kiviloo was to attend on pain of discipline, would also deal with two allegations: that contrary to the instructions in his letter of June lOth, Kiviloo had failed to direct his employment- related concerns to Khan and him; and that he had been absent without leave on June 17th,for which he was being docked a day’s pay. On that date Kivtioo had decided to see the Minister. He left the office, went home and typed a letter to him, and went with it to the Ministry head office. There he was prevented from going to the Minister’; office by a security officer with whom he left the letter. He then went to Rosen’s office and to the offi~ce of another union official and did not return to his own office that day. On July 2nd Kiviloo filed a grievance (662/85) concerning a June 28th performance appraisal (later set aside). On July 4th Dr. Carroll submitted her written report on B to Khan. On July 5th Khan went to Kiviloo’s office to tell him that his travel expense claim fcr June 17th was being disallowed. Kiviloo fiew into a rage and shouted “Pay me Khan”. When Khan left the office Kiviloo followed him shouting repeatedly “Pay me Khan” and “You son of a bitch pay me my fucking money”. He stoodin the doorway of Khan’s office whichKhan was trying to dose, continuing to -9- shout and gesticulate, demanding that Khan consult his superior (presumably meaning Walter) about the daim. Khan agreed to do so and Kiviloo returned to his own office. Khan’s version of the inddent was corroborated in its essential details by a Probation and Parole Officer and a clerical worker who had witnessed it. Khan’s letter written later the same day confirming the denial of the claim led to the filing of a grievance (661/85) by Kivilco, also on the same day, which was denied by Khan on July 16th. On July 18th Walter wrote to Kiviloo informing him that a third allegation, that he had been insubordinate to Khan on July Xh, would be discussed at the meeting on August 14th. Kivilco did not participate in the meeting of August 14th but filed a grievance (726/85) on that date concerning the allegation of ireu!xr.dination towards Khan on July 5th. The grievance was denied by Walter on August 27th and has now been withdrawn. On July 22nd Kiviloo wrote to Khan informing him of two telephone calls made to hi home on July 20th which were recorded on tape and in which a male voice said that Kiviloo’s time had come and that he wouldsoon die. On July 26th Walter wrote to Kiviloo stating that it was generally agreed at Queen Street that B’ had not made the calls of July 20th and B denied having made them, and he would therefore take no action for the time being. On August 8th Kiviloo wrote Walter charging that the police were not investigating the telephone calls because they had been told by him that the Ministry would be doing so. Walter replied on August 13th denying that the police had been told not to investigate the telephone calls and suggesting that - IO- he pursue the matter with them himself. On August 15th Kiviloo wrote to Walter demanding to know what the Ministry was doing about the calls. On August 15th Walter wrote the letter of dismissal. On August 26th Kiviloo filed a grievance (727/85) concerning hls dlsmissal. ------ fl -------- It.is abundantly dear that Kiviloo dd not want to meet face to face with Walter or to speak to him when he did. It may be that he was not well served -by the advice of Rosen with regard to his participation in the grievance procedure. However, it is also evident that he preferred to wage his own campaign for redress of wrongs done to him (as he saw it), by means of written communications not only to Khan, Walter and Main but up to the ministerial level. He wrote letters to the Assistant Deputy Minister on May 25, June 10 and 21 (two letters) and July 22, 1985. He wrote letters to the Minister on May 7, 15, 24 and 25, June 10, 17 and 20 and July 25, 1985. Two letters written to the Minister on August 25 and 27, 1985, that is, after his dismissal, while they do not go to the issue of jUjt cause for the dismissal, are relevant to the question of remedy or penalty in the case. Whatever arguments may be.made for a right of access by employees to senior ministry personnel, no such right could reasonably be thought to encompass what we find here: rash and persistent commmications, some couched in offensive r - ll- language,scxne making charges verging on the libellous, some containing versions of events that are not entirely truthful. These excesses, it must also be noted, are only marginally related to the B case. If there was doubt at any earlier stage that Kiviloo had received explicit orders not to correspond withsenior Ministry officers, it vanished when Walter wrote to him on June 10th reprimanding him for. doing SO and warning him of further disciplinary action for any repetition. In our view, however his behaviour up to that point might be characterized, it became, insubordinate behaviour thereafter. Viewing the evidence of events commencing with the April 17th statement of B to Kiviloo, we are of the opinion that the Employer did not respond early enough and effectively enough to the threat inherent in the statement. In particular, it is difficult to understand why B’s file was not immedately transf.erred from Kiviloo and B so infamed, and why it was thought necessary to determine first how real the threat was. It seems to us that an immediate transfer was desirable even without any asswance that it would diminish the threat. If nothing else,a transfer would have answered Kiviloo’s initial request. But instead of being contained; the situaticn was permitted to escalate or,to be blrmt, Kiviloo was given reason to escalate it. We are told that transfers of probationers’ case files amongt Probation and Parole Officers are routinely and readily made. In light of thef act that one of Khan’s responsi~lities was to assign case loads to Probation and Parole Officers, his written request of May 13th that Kiviloo”arrange to have this case transferred to me at your earliest convenience” seems unnecessarily formal. The statement in _ - 12 - the letter that B’s file might be reassigned to Kiviloo was needless and disturbing in the circumstances. In fact, Khan waited until May 29th before obtaining B’s file himself, following a telephone call from Main informing him of B’s efforts to reach Kiviloo by telephone at the area office. He saw B fcr the first time on May 30th and it was not until June 21st that he assured Kiviloo that B and others involved had been notified that he had taken over the case; For Walter’s part, he got his information about B from Khan and Dr. Carroll. He had not read B’s presentence report or his file and had never seen him. It. is our understanding that B was not subject to slgervision by,the Probation and Parole Service of the Ministry of Correctional Services because. he is a paranoid schizophrenic but because he was a probationer. As a person suffering from a mental disorder and confined to Queen Street under the provisions of the Mental Health Act he was, at least for the period of confinement there, in the care and custody of those responsible for the delivery of mental health care under that Act. The matter of his supervision as a probationer by an employee of the Ministry of Correctional Services would, we think, be for that IMinistry of determine and, as we have said, should not have been allowed to become the issue that it did. In our ognion,a transfer of B’s case from Klviloo need not have awaited a report from Dr. Carroll. It was May 29th before she spoke with Kiviloo, May 30th before she had her one interview with B and, although she had discussions with Khan and Waiter earlier, July 4th before she submitted a written report to Khan. It appears to us that Dr. Carroll was primarily concerned, perhaps understandably as a mychologist, - 13 - with what was good for B, and held the opinion that it was in his interests that Kivilooshould continue to supervise him. We have concluded that Kiviloo had a legitimate concern about the threat posed by B which was heightened by what appeared to be an indifferent attitude by Khan and Walter towards the situation in its early stages. It is not possible, from this distance, to gauge the seriousness of the threat (0~ perceived threat) from B or how concerned Kiviloo should have been-by it. We are satisfied, on the evidence, that the threat did, in fact, have some degree of emotional effect of Kivlloo whicfi goes to explain and excuse, though only partially, what would otherwise be completely unjustifiable behaviour. While i’t is true that both Dr. Cava and Dr. Carroll thought that the risk to Kiviloowas minimal this opinion, as we understand it, assumed B’s secure confinement at Queen Street for some indefinite period of time and continued, successful “psychiatric intervention” on into the future. We are, however, highly skeptical, despite his ostensible distress at the time,that the mysterious, taped telephone calls of July 20th were the cause of any additional concern to Kiviloo. He himself did not believe that they had been made by B and his suggestion that another probationer might be responsible and so.pmed a new threat to him strains belief. It is evident from the letter of dismissal that the incident between Khan and Kiviloo on July 5th was regarded by Walter not.only as a culminating incident, which .we agree it was, but as one sufficiently culpable to render - 14 - inapplicable the concept of progressive discipline and justifying outright dismissal. We do not believe that the incident warrants that conclkion. Kiviloo’s conduct was so disproportionate to the proximate cause - a travel expense daim - that we consider that it mkt be attributed, in part, to his concern about the B case. Further, although hi language was abusive and okcene, we do not believe he intended to assault Khan and,infact,there was no threat or attempt to do so. That being said, the incident, not only in itself, but also because it took place in the presence of other employees under Khan’s supervision, is deserving of a heavy penalty. In the result, we find that dismissal was an excessive penalty and that a substantial period of sspenslon, with reinstatement on conditiors, is a just and reasonable penalty in all the circumstances. It is hereby ordered that the Grievor be reirstated in the position of Probation and Parole Officer 2 as of May 20, 1986, without compensation but without loss of seniority fw the period between the date of his dismissal and that date, upon the f allowing conditons: 1. Unless otherwise arranged by mutual consent of the parties,theGrievorshall report for duty to the office of the Regional Director, Metro Region, Probation and Parole Service, onTuesday May 20, 1986. 2. The Grievor shall be subject to immediate dismissal if, during the period of two years following the date of his reinstatement, he engages in conduct justifying disciplinary action. - 15- It is further ordered that the Employer amend its records pertaining to the Grievor in accordance with this decision. With reference to the grievances before us other than that concerning the Grievor’s dismissal, they are hereby dismissed with the exception of that alleging a violation of Section 18 (I) of the collective agreement. We uphold that grievance to the extent of dedaring that the Employer was dilatory in taking measures for the protection of the Grievor. DATED in Toronto, Ontario this 13th day of May, 1986. P.M. Draper, Vice-Chairman I. Freedman, Member A.M. McCuaig, Member August 15, 1985 Ur. P. KiVilOO Probation and Parole Officer Scarborough West Office 1940 Eglinton Avenue East Suite 204 Scarborough, Ontario MlL 4Rl Dear Mr. Kivfloo: On June 21, 1985, I aent a letter to you advising that I would commence proceedings to have you attend a medical examination on a mandatory basis. As I pointed out at our meeting on August 14, 1985, I did not take that action. I was aware that you were absent on five weeks vacation leave and I had hoped that this period of time sway from work would perhaps have .changed your mind about voluntarily seeking counselling assistance. At the’meeting on August 14. 1985, I ‘once again asked if you would be willing to participate in any type of counselling program to assist you in dealing with personal issues which appear to have a detrimental affect upon your performance as,a probation/parole officer. AlthouJh you refused~to speak to me during that meeting, your representative indicated that you would not participate in any such program. The second purpose of our meeting was to discuss the three following allegations: (1) You were absent from duty without leave on Monday, June 17, 1985. (2) Contrary to my letter to you dated June IO, 1985, you have failed ta direct your employment-related concerns to your area manager and regional manager. (3) On Friday, July 5, 1985, in the Scarborough West Probation/Parole Office, you behaved in sn improper and unprofessional manner and, you were insubordinate to your area manager, Mr. R. Khan. . . . I2 1 nr. P. Kiviloo August 15, 1985 Page 2 In regard to the first two allegations, your representative indicated that you would not discuss them as they were the atibject of previously submitted grievances. Despite my request to proceed with these- matters,_it was obvious that you would not respond to my questions. Therefore, after a careful examination of the facts, I find that both allegations are supported. In regard to the third allegation, your representative was not aware that it was to be discussed. I gave both of you an opportunity to leave the room and prepare a response to the allegation. Upon your return to the room, I was presented with a grievance regarding the allegation. When I attempted to discuss the allegation, your representative indicated that you would not discuss it as a grievance had now been submitted. You and your representative then left the meeting as I stated that I would interview the witnesses in reference to the allegation and make my decis4on. After reviewing .the facts concerning the July 5th incident, I find that you were insubordinate, and, in fact, threatening to Mr. Khan throughout this confrontation. In spite of Mr. Khan’s professional handling of this incident, you once again have harassed, abused and attempted to intimidate your supervisor. In a letter dated June 10, 1985, from the undersigned, following related incidents, you were warned that any future demonstrations of unprofessional or insubordinate conduct towards your superiors would result in more progressively severe disciplinary responses. On June 20. 1985 I again met with you to .d-iscuss my concerns about your ability to adequately perform your duties. At. that meeting I once more discussed your refusal to comply with directions from superiors and your harassment and attempted intimidation of your managers. In reviewing the aforementioned~ three allegations, it is obvious that they are all indicators of a continuing and worsening insubordinate attitude. Aowever, in light of the seriousness of the July 5, 1985 incident with Mr. Khan, I do not feel that progressive disciplinary responses ares appropriate. It is evident from my discussions with . . . . I3 cc R. Khan J. F. Benedict J. A. Wallen V H. J. Duggan , Mr. P. Klviloo August 15, 1985 Page 3 the witnesses to this incident, that there was a belief that Dr. Khan’s personal safety was threatened. Tour behaviour can no longer be tolerated and I will no longer subject managers and other employees to your actions. The Mnistry’a Auman Rights statement affords these employees this protection. For the above reasons, 1 am hereby advising you that you are dismissed from employment, in accordance with Section 22(3) of the Public Service Act, effective August 19, 1985. Yours truly, J. C. Walter Regional Manager Metro Regin . JCW/pb ’