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HomeMy WebLinkAbout1987-1847.Schaefer.88-11-29.i, j B ONTARIO CRcJWNEMP‘0”EE.s GRIEVANCE SETTLEMENT BOARD e EMPLOYCS DE L.4 CO”RONNE DEL’ONTARIO C$lMMISSION DE REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Marion Schaefer) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: M.W. Wright J.D. McManus W.A. Lobraico Vice-Chairperson Member Member For the Grievor;. R. Nelson Counsel Gowling & Henderson Barristers and Solicitors ,: For the EnDlover: J.F. Benedict Manager, Staff Relations'& Compensation Ministry of Correctional Services Hearinqs: February '29, i980 June 1.5, 19fifi September i, 198R S~pt~tllb~r 2, i986 DECISION The Grievor was employed as a Correctional Officer by the Ministry of Correctional Services. She grieves against her dismissal. The outcome of this case rests upon its facts. Although we shall not attempt to review all of the evidence which was placed before us in four days of hearings, it is nevertheless necessary for an understanding of the case to go into the evidence in some considerable detail. The Grievor is presently 29 years of age, she is married and lives in Goderich. She was first employed by the Ontario Government in June 1982. After a brief layoff she was hired by the Ministry of Correctional Services in 1985 to be employed at Bluewater Detention Centre at Goderich, Ontario (which will hereinafter be referred to as "Bluewater"). Bluewater was built in 1962. Until the mid 1970s it was used as a psychiatric hospital and sub- sequently for the treatment of developmentally handicapped persons. In 1985 the facility was converted for use as a place of detention for young offenders in accordance with the provisions of The Young Offenders Act. Consistent with the objectives of The Young Offenders Act, youths detained at Bluewater are described as "residents" and not as "inmates". The residents are over the age of 12 and under the age of 18 at the time that they are charged and all residents have been found guilty of some offence under The Criminal Code of Canada. Bluewater was planned to accommodate 108 residents. Detention cells are not used at Bluewater; rather, : a dormitory setting is in place. There are 3 units of 36 beds each. The dorms are unlocked. The~institution is staffed by Youth Officers on a 24-hour basis. The Grievor was employed as a Youth Officer at Bluewater. - 2 - The facility at Bluewater has a full range of programs which emphasize the treatment, academic and residential aspects with a view to establishing better living patterns on the part of the residents. Youth Officers may recommend a temporary release program for a young offender based on the resident's behaviour; the young offender may, on the recomnendation of a Youth Officer, be released to a home -- his own home or another home -- and he may get passes on special occasions such as Christmas, Easter or on weekends. A Youth Officer is assigned to a living or security unit. 14 Youth Officers are assigned to a unit whose maximum complement, as has already been stated, consists of 36 residents. An attempt is made to have the Youth Officer work continuously in the same unit unless there is some operational reason which necessitates other arrangements. Bluewater is a medium security institu- -" tion with minimal security standards although it is surrounded by a fence. The issue which is at stake in this case .is the Employer's claim, as expressed in the letter of dismissal, that ' . ..your actions render you unable and unsuited, both professionally and personally, to hold the pivotal role in the lives of young persons in our care that Youth Officers hold." (Exhibit 2) It is germane, therefore, to consider carefully the nature of the dutyes of a Youth Officer, such as the Grievor was, and the role which she was expected to play in the institution's program. The governing legislation under which Bluewater and other similar institutions operate is The Young Offenders Act, S.C. 1980-81-82-83, Ch. 110. Section 3(l) of The Young Offenders Act is a Declaration of Principle which it is appropriate to quote in part:- l - 3 - ‘I 3. (I) It is hereby recognized and declared that (0) while young persons should not in all instances be held accountable in the same manner or suffer the same consequences for their behaviour as adults. young per- sons who commit offences should nonethe- less bear responsibility for their contraven- [ions; (b) society must, although it has the re- sponsibility to take reasonable measures to prevent criminal conduct by young per- sons, be afforded the necessary protection from illegal behaviour; guidance and assistance;. . . I’ (Underlining added) " Thus, even though the young offender is responsible for his actions there is a legislative realization that the young offender has not yet reached a level of maturation and has "special needs" which "require guidance and assistance". . The principal witness for the employer was Carl DeGrandis. Mr. DeGrhndis has been the Superintendent of Bluewater since its inception in May 1985. his career in the Ministry of Correctional Services began in 1975 and he has held senior managerial positions during that time. The Board found his evidence to be of the highest value. Mr. DeGrandis pointed out that the Ministry is mandated to present moderating influences to residents in order to enable them to lead more productive lives and not to continue to offend against society. The biggest single factor in obtaining such an adjustment is through the quality and character of the staff members and the role models which they represent to the residents. The Ministry has codified the instructions which are to be followed by its employees. There was filed with us a document entitled "Youth Offenders Act Operational Policy & Procedures" .(Exhibit 4). I am quoting certain excerpts from Exhibit 4 because they will impinge on the evidence in this case. Under the heading of "Correspondence - Mail" the following is provided for:- !..Mail to and from the young person's solicitor shall not be examined or read unless there are reasonable and probable grounds to believe that it contains material that is not privileged as a solicitor-client communication. Other mail to and from a young person may be opened by the super- intendent or designate in the young person's presence and may be inspected for articles prohibited by the superintendent... Where the superintendent or designate believes on reasonable grounds that the contents of the mail may be prejudicial to the best interests of the recipient, the public safety or the secunty of the place of detention or custody It may be read and withheld from the reclplent in whole or in part." (Underlining added) .,. The Ministry has issued a Manual of Standards and Procedures::which deals in considerable detail with the operational procedures to be followed at an institution such as Bluewater. (Exhibit 51 Again, it is necessary to quote certain excerpts from the Manual:- "In order to ensure that appropriate security and control is maintained, the Superintendent is responsible for the custody and control of every inmate admitted to his institution... REPORTING AND DISCHARGE OF DUTIES The following paragraphs outline in brief what is expected of - 5 - each member in the performance of duties. The Staff member shall: (a) Perform his or her duties in an orderly manner and in full co-operation with other staff members; (b) .Be alert, courteous and professional in dealings with inmates, other staff members, visitors and members of the public;... (f) Ensure the security of all inmates under his control, follow all instructions and procedures in regard to custody, and take all additional action required to maintain the security of the institution;... (h) Upon completing his or her tour of duty the staff member shall make a written report of any unusual incident occurring during tnat tour. Any matters apparently requiring immediate attention shall 6e reported at once to the otficer-in-cnarge.... CONTACT WITH EX-INMATES AND/OR THEIR FAMILIES In order to ensure that the appropriate personnel involved in the after-care program of an inmate are kept informed, any staff member who is contacted by an ex-inmate, a member ofanex-inmate's faml1~. or a member of the fame ly of an inmate who is currently serving a sentence, must bring this to the attention of the appropriate personnel. To do so he should record briefly by memorandum any telephone call received or other contact of this type made by the ex-inmate or family member and give this report to the senior supervisor for the attention of the Superintendent. No arrangements should be made to meet the former inmate or member of his family without tne authonzation of the Supenn- tendent. ihe Suoenntendent will ascertain whether the ex:inmate mly member'is receiving attention from other rehabilitation personnel prior to giving such authorization... 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 relatios not in the line of duty with any inmate without tirst receiving the written approval of the institutional or Dranch 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 ilim with the institutional or branch head. The institutional or branch head'will be the sole arbiter of what constitutes a - 6 - 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. Staff not conforming to the above may be subject to disciplinary action. PROHIBITIONS The following paragraphs outline in brief certain prohibitions placed on staff members while in performance of duties:- The staff member shall not: . ..(f) Carry or send written or verbal messages to or from an inmate except under such circumstances as are necessary in transacting the business of the institution." (Underlining added) In addition, the Ministry has issued Standing Orders (Exhibit 7) which are not guidelines but are orders binding upon the Grievor. Certain portions of the Standing Orders are relevant to this case as set out hereunder. "Procedure 2.1 During any tour of duty, you are required to comply with all Standing Orders and any esta- blished operational procedure of the assigned : duty area. It is the responsibility of all staff and employees to familiarize themselves with any order or directive which has been issued since they last performed duty at the institution... 2.3.7 Carry or send written or verbal messages to or from a resident except under such circum- stances as are necessary in transacting the business of the institution... .ii - 7 - STAFF INVOLVEMENT WITH RESIDENTS, 1. Policy 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 relation- ship, not in the line of duty with any resident, ex-resident, friend or relative without first receiving the written approval of the Supenn- tendent. 2. Procedure 2.1 In the case of ex-residents, their relatives or the relatives, of residents and their friends, should the staff member wish to engage in a personal relationship, not in the line of duty, the staff member must discuss such situations as soon as they are known to him with the Supenn- tendent. Th Superintendent -arbiter :f what I1 b h constitutes'8 confqiite 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. 2.2 In actual implementation of the policy, staff will submit a written report pro- viding details of ,the relationship to the Superintendent sealed in an envelope. Upon receipt the submitting staff member will receive a written acknowledgement. 2.3 Should a staff member have any concerns about the propriety of a personal relatlon- ship with a resident or ex-resident, the matter should be discussed with a member of senior staff. CRISIS INTERVENTION 1. Policy Youth Officers must always bear in mind the possibility of a disturbance suddenly occurring within a house... There is little chance at the time of the incident to make proper plans, therefore, it should .be part of everyday routine to take the necessary precautions to minimize the effect ot such action and report any unusual behaviour. 3. (sic) Preventative Measures NOTE THE FOLLOWING: . ..2.6 Care must be taken that Youth Officers do not aggravate an already doubtful situation or change a non-violent situation into a violent one. Is - SUICIDES 1. Policy All threats of suicide are to be taken seriously, to be noted and reported. Suicide attempts can take the form of hanging, slashing, ingest- ion of poisonous or noxious substances; electro- cutions, etc." (Underlining added) The foregoing instructions must serve as a backdrop against which to consider the propriety or otherwise of the Grievor's conduct and of the Employer's reaction thereto. Throughout his evidence..Mr. DeGrandis emphasized the importance of a Youth Officer acting in "a professional manner" and pointed to the* danger of a Youth Officer exposing himself or herself to black- mail at the instance of a young offender. He pointed out that the young offenders have criminal records and are capable of committing the most serious crimes including, in some cases, murder, rape and extortion. In a word, they can be dangerous. - 9 - In the case before us the young offender in question, who will be hereinafter identified as "X", was received at Bluewater on February 11, 1987. He had a record of criminal convictions for breaking and entering and had been sentenced to serve 730 days. From February 11, 1987 until March 24, 1987, X was housed in Huron House, a unit within Bluewater, and between April 11, 1987 and June 29, 1987, he was a resident at Ontario House, which is also a unit in Bluewater. X is of formidable size and physical strength. Mr. DeGrandis was familiar with X's pattern of conduct at Bluewater. Following his usual practice of meeting personally with incoming residents, Mr. DeGrandis had personally counselled X when he was admitted into Bluewater. He described X as "a kid whose body had outgrown his level of maturation and his emotions". He felt that X's physical size often got him into difficulties. DeGrandis testified that he had become concerned about X's behaviour and his attitude. A pattern had emerged of disruptive behaviour by X including "muscling other residents" and forcing other residents to do his bidding. DeGrandis had warned X that if his conduct did not improve he would be moved to a more secure institution. ; As a result of X's behaviour during the weekend prior to June 29, 1987, Mr. DeGrandis took steps to have X transferred to the Elgin-Middlesex Detention Centre at London, Ontario. The transfer on June 29, 1987 was not a peaceable exercise. X was placed in a van and was handcuffed. In spite of the fact that he was handcuffed, X proceeded to cause considerable damage . : , c e ’ - 10 - to the van to the point where he had to be overcome physically, his hands handcuffed behind his back; he was also placed in leg irons and delivered in that manner to the Elgin-Middlesex Detention Centre (which will hereafter be referred to as "Elgin-Middlesex".) So far, the Grievor had not entered the picture but as a result of information which came to Mr. DeGrandis' attention the following day, the June 29th incident took on special significance for him. He stated in his evidence that he received information on June 30th to the effect that the "catalyst" for X's behaviour on June 29th was that the move out of Bluewater had disrupted "a personal and intimate relation- ship" which he had with a female staff member, namely the Grievor. The next morning Mr. DeGrandis made certain inquiries and, as a result, he called the Superintendent of Elgin-Middlesex, Alan Dunbar. DeGrandis told Dunbar, in confidence, the information which had come to his attention and asked him to monitor any contact between X and the Grievor. In doing so, both DeGrandis and Dunbar relied on provisions of the Correctional Services Act which allow monitoring, including interception of mail;in -appropriate circumstances. I About an hour later, Dunbar called DeGrandis and said that the mail log at Elgin-Middlesex showed that the night before a letter had been mailed from X to the Grievor; the letter had left the institution before DeGrandis and Dunbar had talked. DeGrandis thereupon asked Dunbar to continue to monitor. On - 11 - either the same day or the following day, Dunbar called DeGrandis and read to him a report prepared by Youth Officer Stewart at Elgin- Middlesex concerning a conversation which he had had with X. The next day the report came into DeGrandis' possession. The report was entered as an exhibit but, although no objection was raised to the admissibility of the document, the Board,in arriving at its decision, has not relied on any statements made by X which might implicate the Grievor. Indeed, Youth Officer Stewart in his report stated that he assumed that "this Y/O was Just telling me a wild tale to try to impress me". On July 2, 1987 X wrote another letter to the Grievor. The letter was intercepted, opened and brought to DeGrandis' attention. The contents were extremely disturbing to Mr. DeGrandis. Neverthe- less, both he and Mr. Dunbar decided to -have the letter mailed on to the Grievor. The original envelope was retained rogether with a photocopy of the letter and a new envelope was substituted so that it was quite impossible for the Grievor to know that the original envelope and its contents had been intercepted. Counsel for the Grievor objected strongly to this letter being admitted, especially since counsel for the Ministry stated that he would not be calling X as a witness. This meant ,that the truthfulness of X's statements could not be tested through the usual method of cross- examination. The Board decided unanimously that we would admit the letter but we made it absolutely clear at the time that we would accept the letter as evidence only that a letter had been written by X to the Grievor but we would not take into account any statements made by X which affected her in any manner. And we did not. - 12 - Mr. DeGrandis decided that monitoring should continue. Thus far, he had before him only statements by a young offender and, quite properly, DeGrandis considered such evidence alone to be un- reliable. He wanted, he said, corroboration from a source other than from a resident. Such evidence became available several days later. On or about July 7, 1987 Dunbar phoned DeGrandis and informed him that a letter had been received at Elgin-Middlesex which was addressed to X. This letter will be referred to frequently and will be described as "Exhibit 14" or "the Exhibit 14 letter". Dunbar's suspicions were aroused by reason of the fact that although the back of the envelope stated that the sender lived in Welland, "' Ontario and had the same surname as X the envelope 'das actually postmarked in Goderich. The envelope was opened and Dunbar found in the envelope a letter addressed to X which was signed "Love Jo OXOX" and there was also enclosed a picture of a female. The envelope and its contents were delivered to DeGrandis the following morning. The picture turned out to be that of the Grievor. DeGrandis con- sidered that he now ,had the corroboration which he required an6' this was confirmed, in his view, by tne unusual nature of the letter which, I regret, must be reproduced herein:- "July 3, 87 Dear (First name of X) Hi Sunshine! I miss you. Hope things are still going well for you, and that you are still smilin *G (sic). Things just aren't the same without you. I miss your ,i.. . - 13 - smile, your company and much, much more. Here's the picture you wanted of your friend. 1 hope you like it. I'm going partying this weekend, I'll have a few for you. I said hi to Donut for you, I made a special trip to his house to do so. I'll send his address later OK. I'll have to keep this letter short, as work called me and I have to go in for awhile. Oh well, free money for my vises (sic). Take care of yourself and write soon. We all miss you and send our love, especially me. Bye for now, and see you in my dreams. Love Jo. OXOX P.S. Don't get excited but my monthly visitor hasn't arrived yet. Love you. oxoxoxoxox" DeGrandis took the matter up with his Regional Manager and they decided that an investigation was warranted. Inspector McMaster was assigned to investigate. Mr:, DeGrandis suspended.the Grievor without pay from July 16 until July 22. On July 16 Inspector McMaster obtained a written statement from the Grievor. A meeting was held on July 20, 1987 which was attended by the Grievor, her Union representative, Mr. DeGrandis and several of his junior officials. DeGrandis related to us his position on the case which necessarily focused, to a large extent, on the Grievor's Exhibit 14 letter. DeGrandis found the Grievor ,to be somewhat less than“ forthright. At first she denied that she had written the Exhibit 14 letter but later she admitted it to Inspector McMaster. DeGrandis found the letter to be "highly suggestive" and the conduct of the Grievor "contrary to the role model expectation of a Youth Officer". It had now become known that several phone calls had been made by X to the Grievor; when questioned about them the Grievor characterized the calls as "normal". DeGrandis asked why t a * - 14 - the Grievor had not disclosed receiving phone calls from X and the Grievor's reply was that she "had no opportunity to do so" even though she had been on duty after receiving the first of the phone calls. DeGrandis observed that the envelope containing the Exhibit 14 letter had been sent under what he called "an alias" since it showed the sender to have the same surname as X and as living in Welland when in fact the letter was sent by the Grievor from Goderich. DeGrandis testified that the Grievor had said that there was "nothing wrong with what she had done". OeGrandis said that the Grievor had stated that she wrote the letter because "X was down and I thought he might be suicidal and I wanted to cheer him up". DeGrandis asked why she had not, consistent with Standing Orders, reported her suspicions concerning suicide so that X could " be observed; the Grievor's answer was that she thought someone else in the institution would notice the same symptoms. DeGrandis pointed out that the aspect of suicide was extremely important and that failure to communicate her suspicions or opinion concerning X's motivation was in breach of established procedures. DeGrandis wanted to know why such personal and intimate cormnents were made in the letter, to which the Grievor replied that she was a "caring, person" who was only using the Exhibit 14 letter to calm X down. OeGrandis questioned the Grievor concerning letters written by X to her home. At Bluewater the Employer's records showed the Grievor's address to be a street number in Goderich but the letters written by X to the Grievor were addressed to a post office box in Goderich and DeGrandis wanted to know how X .had received that information; the Grievor replied that he must have gotten the - 15 - address from some magazines that the Grievor had brought to work. OeGrandis pointed out that X had listed a "Marion Beattie" as a possible visitor to Maplehurst Detention Centre to which he had been transferred and OeGrandis observed that, according to personnel records, the Grievor's maiden name was "Beattie". OeGrandis wanted to know how X had learned the Grievor's maiden name; the Grievor suggested that X must have seen an old identification card with her picture and her maiden name on it. She related that in banter with X and other residents, she and another female officer had shown old identification cards and that her maiden name and picture had been on the 1.0. card. Finally, OeGrandis asked the Grievor about the post-script to the Exhibit 14 letter which reads:- "P.S. Don't get excited but my monthly visitor hasn't arrived yet. Love you. oxoxoxoxox" OeGrandis asked why she would be writing to a young offender con- cerning what must have been her menstrual cycle and he stated that he was chagrined to hear the Grievor reply that "she was not ," uncomfortable" discussing this matter with a young offender. Faced with the above evidence, Mr. OeGrandis decided to dismiss the Grievor. The letter of dismissal dated July 23, 1987 is reproduced here in its entirety because it summarizes the Employer's case against the Grievor. (In order to preserve the identity of the young offender his name is deleted from the letter and he is referred to as X.1 ., . , - 16 - "PRIVATE & CONFIDENTIAL July 23, 1987 Mrs. Marion Schaefer 43 Bruce Street, E. GODERICH, Ontario N7A lS7 Dear Mrs. Schaefer: Re: My Letter of July 15, 1987 Meeting in my Office July 20, 1987 On July 15, 1987, as noted above, I wrote to you suspending you without pay pending the outcome of the ongoing investigation and the meeting noted above. On July 20, 1987, you attended in the presence of your representative, Mr. Vic Cooper, during which you were afforded an opportunity to present your account of the matter in question, to wit: involvement in an inappropriate relationship and conduct with a resident (X1. The investigation also led to allegations of failure to adhere to Standing Orders in the establishment of such a relationship and the disclosure of same. In addition, the investigation revealed the existence of a letter toX received at another Institution sent by you under an alias. This letter, clearly one of a personal and intimate nature, reveals an illicit relationship with X. Moreover and equally problematic it reveals an employee who will go to great lengths to conceal such a relationship in a covert and deliberate manner. The meeting, in my judgement; further reveals you to be unable or unwilling to be as forthright and candid as required by the information at hand, except in the.- sole case of the letter you wrote, using an alias. Even then your initial stance was to deny you wrote the letter until confronted with our deter- mination to use whatever forensic means available to verify the true author of the letter and/or advised to do so by your representative. Some- of your claims and statements, especially in regard to your failure to disclose telephone and mail contact with X, insults the intelligence of whomever you expect to give credance to your position. Further, it reveals an employee who does not appreciate or dismisses out of hand, the need to have an employee/employer relationship based on honesty and trust. I find your actions and attitude to be devoid of any such appreciation. In concluding my thoughts on your relationship with X, I believe it open to any reasonable viewer of ’ c ” . a 0 - 17 - the material at hand that an intimate and personal relationship was entered into by you with X and further I believe it open to a conclusion that you fostered such a relationship. The young people in our care come to us full of con- fusion regarding their lifestyle, their life experiences, life role models, relationships between the sexes, etc. It is our job to present a role model that leads them in an honest way towards the resolution of that confusion, and not add to it. Your explanation of your interest in entering such a relationship, if believable and I find it not to be, shows total lack of understanding what long range damage can be caused by such unethical methods. As the person in a position of authority (Power Position), YOU must carry the buraen for the establishing, maintenance, illicit relationship. and fostering of the I therefore conclude that your actions render you unable and unsuited, both professionally and per- sonally, to hold the pivotal role in the lives of young persons in our care that Youth Officers hold. Having so concluded and using my delegated authority under Section 22(3) of the Public Service Act, I hereby dismiss you for cause from the employ of the Ministry of Correctional Services. This dismissal is effective immediately. "Signed" Carl OeGrandis Superintendent COG:fp cc: Mr. 0. Spencer, Regional Manager Mr. 0. Bolton, Regional Personnel Administrator Mr. R. Dickson, Deputy Superintendent Mr. J. Featherstone, Program Co-ordinator Personnel File" Mr. OeGrandis stated that he was greatly upset by the Grievor's misconduct which he considered to be totally in conflict with the objectives of The Young Offenders Act. He stated that a Youth Officer is a person who has almost the last chance to moderate behaviour patterns of young teenagers and to undo some negative role models experienced Officer whose personal - 18 - by young offenders conduct reflects is a role model which will help a young offender and is of the' greatest importance in furthering the objectives of The Young Offenders Act. Referring to the Grievor's conduct, DeGrandis stated: "This is not the role model I want for anyone under my care to experience. I am responsible for those young people". He stated that the primary purpose of The Young Offenders Act is to remove young teenagers from negative influences whereas the Grievor's influence was anything but constructive. The foregoing is the substance of the Employer's case. Other witnesses were called such as Inspector McMaster, Youth Officer Stewart, Alan Ounbar and another Youth Officer but their evidence was primarily to corroborate the evidence of Mr. OeGrandis and to fill in any gaps in presenting the case which was articulated in considerable detail by Mr. OeGrandis. The Grievor began her evidence by stating that after she was dismissed by Mr. DeGrandis she applied to the Goderich Police Department for the position of Dispatcher. She was asked to submit a reference and she did so; in fact, she submitted the name of Mr. OeGrandis as a reference. Thus, it was being .pointed out that Mr. OeGrandis who had dismissed her must have spoken favourably about her as regards the Dispatcher's job. More will be said below about this aspect of the case. in the past. 'A Youth constructive attitudes The Grievor told us about her educational background. She received her Grade XII diploma. Subsequently, she took a 2-year course at a community college dealing with. counselling persons afflicted with mental retardation with a view to enabling them to cope with their behavioural problems and improving their life skills. She graduated from community college in December 1982 and began working with mentally handicapped adults at Bluewater. When the unit was closed at Bluewater she was transferred to work as a counsellor with mentally handicapped persons at Oxford Regional Centre at Woodstock. When the Youth Offenders institution was opened at Bluewater in 1985 she was transferred back. She took training at Bluewater and, she testified, much emphasis was given to having Youth Officers develop counselling relationships with youth offenders. When Bluewater was opened as a Youth Offender institution the Grievor was assigned to the Program Centre which was the control module for the facility. The following Spring she was transferred to Ontario House which is a unit within Bluewater and she was employed there from the Spring of 1986 until her dismissal in July 1987. X came into Ontario House in April of 1987. The Grievor said he was "loud, boisterous, hyper and emotional". He needed a lot of staff supervision and he had the ability to upset the Unit. The Grievor agreed with Mr. OeGrandis' assessment of X as being one whose body size enabled him to intimidate other residents. X left Ontario House at the end of June 1987 and the Grievor has not seen him since then. The Grievor denies having had any sexual - 20 - relationship with Xor that she ever spent a weekend with him as seemed to be implied by the Employer. She flatly denied having had any sexual contact with X. The Grievor testified that as a, result of her counselling efforts X seemed comfortable in discussing his problems with her. He seemed to consider her as a big sister and she was convinced that he trusted her. X had told the Grievor about his troubled life and the matters which he found upsetting. His family life had been disrupted when is mother deserted the family home. He was very proud of his ethnic background. The Grievor testified that their relationship was proper at all times. She listened sympathetically to him and encouraged him to talk about his past by relating to him instances about her own experiences and how she dealt with various problems which had confronted her. The Grievor testified that X had learned inadvertently 'that she was pregnant. She related that one day in June 1987 the Grievor was talking privately to Erica Moody, a Correctional Officer-2 at Bluewater. In the course of their conversation the Grievorcr told Moody that she was pregnant but that she was not too happy at the prospect of having a child at that time since she was having marital problems with her husband. After their conversation ended and Erica Moody left, X approached the Grievor saying "That's great if you're pregnant". Apparently, she testified, X had overheard her conversation with Erica Moody. In cross-examination, the - 21 - Grievor said that she did not remember whether the conversation with Erica irloody was carried on in a "normal" or "hushed" tone of voice; Moody said the conversation was in a "below normal" tone of voice. At any rate, the Grievor testified that she did not volunteer the information to X that she was pregnant and that the foregoing incident represents the only explanation as to how X had learned about the Grievor's pregnancy. On July 1, 1987, a couple of days after X had been transferred from Bluewater to Elgin-Middlesex, the Grievor testified that she received a phone call from X. She said that at that particular time her husband was working on a class reunion and that people were calling in from different places in connection with the .: arrangements for the class reunion and that a number of collect calls were received. She says that when she heard that therewas a call from a person whose first name only was given she assumed that the call was from a man on the west coast who had the same first name and. who was connected with the arrangements for the class reunion so she accepted the collect call. X told her that he was upset about being transferred from Bluewater and he wanted. to know whether the Grievor had anything to do with the transfer. The Grievor told him that she had. nothing to do with his being transferred nor did she know why-he had been transferred. X wanted to know how he could get back to Bluewater and the Grievor told X to write to the Superintendent, Mr. OeGrandis. The Grievor said that X was very upset saying that he was unable to "handle the bucket", meaning the cells. The Grievor testified that X told - 22 - her he felt like "killing himself". The Grievor said she did not think X was capable of that and that she talked to him in a calm manner. She said her husband was at home when she talked to X. The Grievor wrote the Exhibit 14 letter to X. She was upset by his call and wanted to calm him down. She knew that, X trusted her and that by writing him she might help to introduce some calm- ness into his attitude. Counsel for the Employer took sharp issue with the Grievor's evidence. The Grievor admitted that certain youth offenders are capable of being "violent and dangerous" committing crimes as serious as murder, rape and extortion. The Grievor admitted that X had, in the past, threatened to "get" staff members, that he had "verbally assaulted" other residents and staff members and that he had the potential for violence. The Employer's counsel pointed out that the Goderich telephone directory showed the Grievor's address according to her street address but X had written to the Grievor at a postal box address, namely, P.0; Box 243 at Goderich, Ontario. Counsel wanted to know, therefore, how X had,- learned about the postal box address. The Grievor replied that she did not use the postal box for ordinary mail but mainly for magazines. Also, a postal clerk who knows her sometimes put her mail into P.O. Box 243. On occasion she brought magazines into work with mailing labels attached showing P.O. Box 243 and she surmised that X had gotten her address from one of those mailing labels. - 23 - Counsel for the Employer noted that in the Grievor's statement to Inspector McMaster she had described X as "...a very emotional and hyper individual who myself and other staff kept a close watch on and counselled regularly. He had the ability to be loud and boisterous and could easily upset the Unit as a whole;.." Why then, asked the Employer's counsel, had the Grievor not reported the fact that X had talked about "killing" himself" especially since she was required to do so under the Manual of Standards and Procedures as well as under the Standing Orders at Bluewater. The Grievor's reply was that she did not think X's statement about suicide was to be taken seriously. At any rate, she certainly did not report the incident which, she admitted, was a serious breach of instructions. How, counsel for the Employer asked, had X obtained her phone number to which the Grievor replied "out of the phone book". When counsel pointed out that the telephone listing in the phone book was in the name of the Grievor's husband she replied that she might have mentioned tier husband's name to X in the course of a conver- ,' sation. The contents of the. Exhibit 14 letter came in for close scrutiny. Counsel for the Employer put a number of questions to the Grievor which were answered as follows:- i : - 24 - - What is the meaning of "Sunshine"?; the answer, was that that was the nickname for X's father and she thought she would use the same expression in addressing X. - Why did the Grievor write "I miss you"?; the answer: It was just a flippant manner of speaking which was often used by Youth Officers when counselling. - Why did the Grievor say "Hope things are still going well with you" when, according to her own evidence, X had been so upset when they talked two days earlier?; the answer was that the Grievor had meant to cheer him up and to calm him down. - Why had the Grievor said "Things just aren't the same without you"? the answer -- a lot of the residents are missing him. - What did the Grievor mean when she said "I miss your smile, your company - 25 - and much, much more"? Why had she enclosed a picture of herself saying "Here's the picture you wanted of your friend"? No meaningful answers were given to these questions. - What did the Grievor mean when she said "We all miss you and send our love, especially me"? the answer: she referred to the residents in the Unit. - Why had the Grievor said "Bye for now, and see you in my dreams"? it was meant only as an informal manner 'of speaking which she often used in closing letters and was not to be taken seriously. - Why did the Grievor conclude her letter with the words "Love Jo. OXOX"? Were "OXOX" not a euphemism for "love and kisses"? the Grievor admitted that it was but it was only her way of ending a letter and was not meant in any improper manner. - 26 - - The postscript came in for especially sharp questioning. The Grievor admitted that the "monthly visitor" referred to her menstrual cycle and since X had learned that she was pregnant and it would make him happy for her to tell him she was pregnant, "So why not say it?'! The Grievor concluded her evidence by asserting I that part of her training was to "care" for people. It was as part of expressing her care and concern for X that she wrote Exhibit 14. The evidence in reply by the Employer related primarily to the Dispatcher's job which the Grievor had obtained with the Goderich Police Department. Mr. DeGrandis testified that around October or November 1987 he got a call from the Chief of Police in Goderich. The Chief asked for DeGrandis' opinion concerning the Grievor. DeGrandis stated that the query by the Chief of Police placed him in a difficult position. DeGrandis knew that he could not and would not talk to the Chief of Police about the reasons for the Grievor being dismissed but at the same time he knew that the Grievor needed a job. He did not want to place any unnecessary impediments in her way so he asked the Chief what the nature of her employment would be with the Goderich Police Department. If the response by the Chief of Police had required DeGrandis to reveal the evidence in this case concerning the Grievor he would not have - -27 - done so but would have declined comment. When, however, the Chief of Police described the job as being a Dispatcher giving instructions on air DeGrandis knew that the Grievor was capable of performing that job. She had acquired experience of this kind while working at the Program Centre at Bluewater and she had the ability to do so. He saw no reason, therefore, why he should not recommend the Grievor for that job. He stated that the Chief of Police did not ask him any direct question concerning his personal assessment of the Grievor and if he had he would not have given it. DeGrandis stated that he was upset at the time for having been put in that position, particularly in a small town like Goderich. After talking to the Chief of Police DeGrandis called the local representative of OPSEU and told him about the discomfort he had experienced in dealing with 'the Chief of Police. The task of this Board is to decide whether or not the Employer has discharged the onus of establishing that the Grievor was dis- missed for just cause. There cannot be any doubt, we regret to say, about upholding the disciplinary action imposed by the Employer. The facts speak for themselves. We consider that DeGrandis was completeTy justified in reaching the conclusions that he did and we. agree with his conclusions as they are so clearly set out in the dismissal letter of July 23, 1987 which was reproduced above. We do not have to determine what the exact relationship was between the Grievor and X but, whatever it was, we regard it as being most improper insofar as the Grievor is concerned. Mr. DeGrandis was - 28 - entitled.'to expect that the Grievor would project the role model of one who is attempting to demonstrate a wholesome lifestyle for a youth offender, in this case X. The most damning evidence is, of course, the Exhibit 14 letter. It is replete with sexual connotations culminating with the postscript which makes it difficult not to conjure up thoughts of illicit.sex whether real or imaginary. The letter is susceptible, on the evidence before us, of two conflicting 'theories. The first is that the letter was highly improper representing an intimate and personal letter .written by the Grievor to X. The second is that the letter was written by the Grievor only to cheer X up' and to becalm him in his state of excitement or depression. The Grievor says that the first theory is unsupported by the evidence. If such is the case, why then did the Grievor attempt to disguise her identity as the sender of the letter by using X's surname and a false address on the back of the envelope? Why did the Grievor at first deny that she had written the Exhibit 14 letter and then reverse herself when it must have become apparent to her that she had been found out?' What kind of letter is that for a 28 year old Youth Officer to write to a teen-aged youth offender who is known to be potentially dangerous, using terms of endearment and references to her menstrual cycle together with her picture enclosed? It would be an exercise in gullibility to think of the contents of the letter as part of the Grievor's constructive counselling activities. On the contrary, . l 0 - 29 - we regard it as being consi;stent only with the existence of some wholly improper kind of relationship which can only harm the best interests of the youth offender. We found the Grievor's explanations as to how X learned about her postal box address, her phone number, her maiden name and about her pregnancy to be quite contrived. The second theory, advanced by the Grievor, is that the letter was written only to cheer X up; in other words, to advance the welfare of X. Does legitimate and meaningful care for X express itself in the way that the Exhibit 14 letter is framed? If the Grievor was inspired by objective caring for X why did she not report his suicide coaanents, as she was required to? Instead, after hearing his suicidal threats on July 1 the Grievor writes the letter that she did on July 3. We cannot see that letter and the circumstances under which it was sent as advancing X's interests in any sense. If anything, such a letter must have .an even more unsettling effect on an immature and volatile youth offender. We regret to say that we have difficulty in accepting the Grievor's evidence as being credible. The explanations for a number of the incidents fit too well to be believable, such as the manner in which X learned about the Grievor's postal box address, or her phone number or her explanations concerning the Exhibit 14 letter. As we have said, we find that her defence is too contrived. We cannot disregard the fact that the Grievor at first denied that she had written the Exhibit 14 letter. . - 30 - Even in the light of the evidence which was adduced before us the Grievor was still not persuaded that she had misconducted herself. Even when she was confronted with the reference in the letter to her menstrual cycle she still saw "nothing wrong" with what she had done. We have come to the conclusion that the Employer was justified in dismissing the Grievor. It remains then for us to consider whether the penalty of dismissal is excessive. Section 19(3) of the Crown Employees Collective Bargaining Act gives the Grievance Settlement Board the following power:- "Where the Grievance Settlement Board determines that a disciplinary penalty or a dismissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it considers just and reasonable in all the circumstances.". The evidence shows that the Grievor avoided compliance with instructions which are of basic importance in the setting in which she was employed. She failed to comply with:- The Manual of Standards and Procedures, Volume 1 Sec. A-3, Page 1, Item (b) -- to be 'I... professional in dealings with.inmates..." Sec. A-3, Item (h) -- to make a writen report of any unusual incident,.." Sec. A-6, Page 3 -- concerning contact with ex-inmates and to report any such contacts to the Superintendent. - 31 - Sec. A-6, Page 4 -- not permitted to enter into any personal relationship not in the line of duty with an inmate without receiving prior written approval. Sec. A-6, Page 5 -- not to carry or send written or verbal messages to or from an inmate. Standing Orders Page 2.3.7 -- not to carry or send written or verbal messages. Sec. 4, Page 15 -- staff members are not permitted to enter into any personal relationship. Page 2.1 -- to bring to the attention of the Superintendent situations of the kind encountered in this case. Page 2.3 -- to report "any concerns about the propriety of a personal relationship with a resident" to a member of senior staff. Sec. 5, Page 35 .-- suicide -- "all threats of suicide are to be taken seriously, to be noted and recorded". We have concluded that it would be wholly unreasonable to expect the Employer to impose a lighter form of discipline. Equally, it would be unreasonable of us to require the Employer to take the Grievor back into employment in the light of the evidence which we have heard. The Grievor has demonstrated by her conduct that - 32 - she is not suitable to hold the position from which she was dis- missed. The Grievance is hereby dismissed. DATED AT OTTAWA this 29th day of November,1988. -3 , .4%-.--+.::~ .7,~9 I Maurice W. Wright,'Q.C, Vice-Chairperson John McManus, Member . A& * Ye William Lobraico, Member