HomeMy WebLinkAbout2011-2918.Weber.13-05-07 DecisionCrown Employees
Grievance Settlement
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Commission de
règlement des griefs
des employés de la
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Toronto (Ontario) M5G 1Z8
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GSB#2011-2918
UNION#2011-0582-0062
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Weber) Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Barry B. Fisher Vice-Chair
FOR THE UNION Tim Hannigan
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYER Jonathan Rabinovitch
Ministry of Government Services
Labour Practice Group
Counsel
HEARING January 25, February 14, April 2 & 23, 2013.
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Decision
Introduction
[1] This case involves the discharge of a fixed term Correctional Officer from the Toronto
East Detention Centre.
[2] The Grievor commenced employment on June 24, 2007. He was put on paid suspension
on July 29, 2010 and was terminated on November 7, 2011, with 23 calendar days left on his
contract.
[3] The Grievor was terminated for allegedly smuggling contraband (alcohol and cigarettes)
into the institution and selling it to an inmate. He denies the allegation. It is also alleged that he
lied to the investigator about his involvement.
[4] The Ministry conducted a lengthy investigation and in the end they terminated two CO’s,
the Grievor and CO #1. CO #1 also filed a grievance but his matter was resolved.
[5] The parties have agreed that I am to first determine liability and then if I need to deal
with remedy, we will convene a new hearing.
[6] The Union is not seriously contesting that if I find that the Grievor did in fact smuggle
contraband to an inmate that discharge was the appropriate remedy.
[7] The Union also admitted that the Grievor was aware of the absolute prohibition on selling
contraband to inmates.
[8] Although the Employer filed in evidence the Investigation Report prepared by Tony
Ruggiero, Inspector, CISU, I have been careful to only utilize this report for limited purposes.
The evidence collected by Mr. Ruggiero from witnesses is pure hearsay in these proceedings in
so far as they relate to the truth of the matter asserted. I have therefore not referred to or even
read those interviews of witnesses who did not testify in these proceedings. The transcripts of the
interviews were properly used as a basis for putting to witnesses in this arbitration their prior
statements. I have also utilized the report in relation to the argument that the photo lineup
conducted by Mr. Ruggiero was seriously flawed as these issues relate to the conduct of Mr.
Ruggiero, who was a witness in these proceedings.
Review of Relevant Testimony
Testimony of Inmate J.
[9] The only direct witness called by the Ministry was Inmate J. Inmate J was incarcerated in
the institution from March 29 to August 4, 2010. He shared a cell on Block 4C with Inmate S.
[10] Inmate J testified that he approached the Grievor and offered him money if he would
bring him alcohol and cigarettes. The parties agreed on a price of $500 to be paid by someone on
the outside to the Grievor at a location that he suggested, namely the LCBO at Eglinton and
Brimley. Inmate J and Inmate S requested that he put the alcohol in empty institutional shampoo
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bottles. He was to put the shampoo bottles and the cigarettes at the doorway in the range on top
of the ledge. At the time, Inmate J was a cleaner, so he had access to the range.
[11] In his interview with Mr. Ruggiero, which he adopted in his arbitration testimony, Inmate
J went into more detail. Inmate J said that he approached two CO’s. He did not know their
names. He described one of the CO’s as having the following physical characteristics:
a tall blond guy,
big nose,
straight hair,
short spiky hair,
looked like a boxer,
balding
[12] Inmate J first approached CO #1 and offered him $1,000 for “a bottle of booze and some
smokes”. Inmate S was the person actually financing the transaction. They agreed that the money
transfer would take place outside the jail by CO #1’s car, a black Jeep Laredo with a specific
license number. He said he then later saw CO #1 meet up with Inmate S’s contact and get into a
Mercedes and drive away together. This event took place at Manville Auto which is within view
of his cell when he was in lock up.
[13] The next day they received from CO #1 the DuMaurier cigarettes, stuffed inside a toilet
paper roll and two clear institutional shampoo bottles with white lids containing vodka,
apparently Grey Goose. This was delivered to his cell.
[14] A week later, Inmate J approached the “blond CO” and they agreed that the inmate’s
people would meet the CO at the LCBO at Eglinton and Brimley where he would be given $500,
a bottle of Grey Goose vodka and a pack of cigarettes. The contraband was then delivered by the
blond CO to the ledge on the range in two shampoo bottles and the cigarettes in a toilet roll. The
blond CO then signaled to Inmate J that the delivery was made. Inmate J retrieved the
contraband and put it in his cell. One bottle was then consumed by the Inmates J and S and the
other bottle was given to other inmates.
[15] The investigation interview also dealt with a second uncompleted transaction between the
Inmates J and S with the blonde CO regarding a $500 payment for smuggling in steroids. It does
not appear that the Ministry is relying on this alleged transaction in their decision to terminate
the Grievor.
[16] Some time later, Inmate S got into an argument with CO #1 about whether the $1,000 he
was already paid was to also cover further shipments of contraband. CO #1 then wrote up Inmate
S for threatening him and Inmate S was removed from the range. Inmate S then told the
managers that CO #1 was bringing in contraband for him and as proof Inmate J directed the
manager to one of the shampoo bottles which still had a couple of drops of liquid in it.
[17] Towards the end of the interview Mr. Ruggerio told Inmate J that he was going to show
him a series of photos and “just tell me who you believe them to be”.
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[18] He first showed him Picture #1 which the Inmate J identified as “Yeah that’s the first
dude, the first fellow”. Photo #1 is a photo of CO #1.
[19] He is then shown photo #2. Inmate J identified it as a photo of the CO who was CO #1’s
backup when CO #1 and Inmate S had their argument. Inmate J said that this CO in Photo 2
would not have been able to hear the argument as he was too far away.
[20] Mr. Reggerio then showed Inmate J photo #7, which is a photo of the Grievor. He did not
show Inmate J the photos marked 3, 4, 5, 6, 8, 9, 10, 11 or 12.
Upon being shown photo #7, Mr. Ruggerio asked “And who is that?”
Inmate J responded “That’s the tall stocky guy”
Mr. Ruggerio then asked “And is he the one had the two exchanges?”
Inmate J responded “Yeah”
Mr. Ruggerio then asked “And he the one that was looking after the steroids”
Inmate J answered “Yeah”
[21] Why did Mr. Ruggerio not show the other pictures to Inmate J before showing him the
Grievors’ picture?
[22] I do not know as he was not asked any questions about this in his chief or in his cross.
The Union’s position has always been that Inmate J was lying, not that he mistook the Grievor
for another similar looking CO.
[23] In any event, Inmate J did identify the Grievor at the hearing as the CO that he had
purchased the vodka and cigarettes from. Again it was never put to him that he was mistaken as
to identity of the CO who sold him the contraband, only that he was lying about the whole
incident.
[24] It certainly would have been a fairer investigation to present Inmate J with the photos of
all the CO’s who worked on that range in the time frame that the inmate said the transactions
took place. He then could have been asked if any of these photos were of the person with which
he had the transaction in question.
[25] So why did he not do this? It may be due to the mandate given to the investigator. In the
Executive Summary, Mr. Reggario makes clear that his mandate was to investigate allegations
that the Grievor was involved in the handling of contraband. He was not trying to find out who
brought this contraband into the institution, rather he was trying to find out if the Grievor did so.
[26] In any event, the Unions’ position has always been that Inmate J was lying. In cross
examination, Inmate J revealed that he had been in jail three or four times on drug charges and
unsafe storage of a gun. Around mid or late August of 2010, having just been released from jail,
Inmate S called Inmate J and said that he was angry with him as Inmate J did not get him what
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he had paid for. Inmate J said that he was concerned that Inmate S would get some “heavies”
after him. Inmate J said that he was concerned that Inmate S would be angry with him if he did
not back Inmate S’s story about the contraband.
[27] In cross examination Inmate J gave confusing and contradictory stories about whether the
alcohol was one or two bottles and whether it was contained in a shampoo bottle or a mickey
bottle. He ultimately testified that he got one shampoo bottle of vodka from CO #1 and two
shampoo bottles of alcohol from the Grievor. He said that he got it mixed up in the interview. He
said that the bottles were about 1.5 liters each.
Testimony of Tony Reggierio, Investigator
[28] He had possession of the shampoo bottle that was seized from the cell of Inmates S and J.
He received this from the TEDC Security Unit. He testified that there was a small amount of
liquid in the shampoo bottle. He did not have the contents analyzed. In other words he could not
testify that the shampoo bottle contained vodka, as Inmate J indicated.
[29] Therefore there is no scientific evidence that the shampoo bottle ever contained vodka.
As Mr. Ruggiero said at page 3 of his report:
“Upon completion of a search an institutional shampoo bottle was discovered that
contained a liquid believed to be alcohol. The bottle was secured into evidence”
(emphasis added)
[30] Neither did Mr. Ruggiero ever examine the small amount of liquid in the Smirnoff bottle
found in the Grievor’s locker.
[31] Mr. Ruggiero contacted Smirnoff about what information they could tell him about he
manufacture date of the bottle, based on its serial numbers. He was told that the manufacture date
was November 11, 2009 from their facility in Plantfield Illinois. The Union does not dispute this
data.
Testimony of Chris Daley
[32] Mr. Daley was the Acting OEM who searched the cell of Inmates S and J. He found an
institutional shampoo bottle in the cell with a small amount of liquid in it. He opened the bottle
and smelled the contents. It smelt like vodka. The bottle would hold about a liter. He has had
personal experience with vodka which allowed him to identify the smell. He admitted that he
usually drinks vodka with a mix. He said that there was maybe 5 – 10 ml of liquid in the bottle.
[33] He also testified that inmates often make an alcoholic jail brew from fruit and bread. He
stated that real alcohol is rarely found in the possession of inmates. This was the first time he had
found real alcohol in an inmates’, possession since he started in Corrections in 1997.
Testimony of John Lawson
[34] Sgt. Lawson was tasked with searching the Grievor’s locker on July 29, 2010 while the
Grievor was being interviewed by the Superintendent just prior to his suspension. He opened the
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Grievor’s locker in the presence of an OPSEU representative. The locker contained many items
but in plain view at the bottom of the locker was a bottle. After moving some magazines out of
the way, he realized it a liquor bottle. He then secured the locker. The next day he reopened the
locker, photographed the contents and secured the liquor bottle. It was produced as Exhibit 2. It
is a plastic bottle, Smirnoff Vodka, 200 ml. It contains a small amount of clear liquid.
Testimony of Tracey Timoll, Superintendent of TEDC
[35] During the allegation meeting on October 6, 2011, the grievor was asked how long had
the Smirnoff bottle been in his locker. At one point he said that it had been in his locker for two
years. Then later on he said that it was 6 months prior to his July 2010 suspension, maybe longer.
Testimony of the Grievor, Ted Weber
[36] The Grievor denied that he had ever brought in or agreed to bring in any contraband to
inmates. He denied all the allegations of Inmate J that related to his conduct. He never had any
negative encounter with either Inmates S or J.
[37] He gave a long and somewhat convoluted explanation of how the empty vodka bottle
ended up in his work locker.
[38] One day, while returning from work, he decided to drop in on a friend who owned a limo
company. He first stopped at the LCBO, maybe the one at Eglinton and Brimley as this is the one
he normally shopped at. He purchased the 200 ml bottle of vodka and proceeded to his friends’
house. This is something that he did quite often.
[39] At his friend’s house he drank most of the vodka himself while his friend provided the
mix. He indicated that the drinking probably took place either in his friends’ driveway or the
parking lot where they are cleaning the limos. Instead of throwing out the empty bottle in the
garbage, he threw the bottle in the front seat of his car. He then drove home, having consumed
most of the vodka himself. The empty vodka bottle stayed on the front seat.
[40] The next morning when he got into the car he noticed the empty vodka bottle on the front
passenger seat. He decided to put this particular piece of garbage (the empty bottle) in his gym
bag although he admits that he had other pieces of garbage in his car. He said that he put the
bottle in his bag so that the police would not see it if he were stopped.
[41] He used the gym bag to transport dirty clothes from the jail to his home and clean clothes
from his home to the jail. Therefore he was using his gym bag of clean clothes to transport a
piece of garbage, namely the empty bottle.
[42] Once he got to work he placed his gym bag in his locker. In doing so he passed at least
one garbage can. At lunchtime he took his gym bag to the gym for a workout. Upon opening his
gym bag he saw the empty bottle. He was not comfortable with the thought that someone could
open his gym bag and see the empty bottle so he removed the bottle from the bag, returned to his
locker, opened the locker and threw the empty bottle in the locker. He must have passed at least a
few garbage cans along the way, however he did not throw out this particular garbage, but rather
he put it in his locker. According to his testimony he did not bring the gym bag with the bottle
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back to his locker but rather he removed the bottle from the bag and then transported it to his
locker. He did not indicate whether he hid the bottle on his person while he went from the gym to
the locker room.
[43] He claims that he forgot about the bottle in his locker and did not see it or remember it
during the entire period from when he threw it in his locker to just at the time that he was
suspended.
[44] However, he also related a story to the Investigator that another CO had seen the bottle in
his locker and commented on it. This CO told the Grievor that he was either stupid or dumb to
have that in his locker. The Grievor said that he laughed at this comment but still did not remove
the bottle from his locker and throw it out. He was unable to remember the name of this CO.
[45] When he was put on suspension, but before he knew that they had searched his locker, he
realized that he had this empty bottle in his locker. He attended at his local LCBO and inquired if
they could tell him based on the bottle’s serial number if they could tell when the bottle was sold.
They said that they could not. He did not ask the LCBO if they could tell the manufacturing date
from the serial number.
[46] When he was interviewed by Mr. Ruggerio on September 10, 2010, he was asked
repeatedly about the date in which he said that he bought the vodka in question. His recollection
at that time was approximately 1.5 years. His exact words in the investigation were as follows:
Page 23: “That has actually been there for approximately a year and a half I believe.”
Page 33: “and I threw in the bottom on my locker and it’s, it’s been. I mean it been there
forever.”
Page 43: Investigator: “And it been in there for a year and a half or so?”
Grievor: “Give or take yeah”
Investigator: “And your saying that’s over a year and a half old?”
Grievor: “Yeah”
Investigator: “And it’s been there for a year and a half that you happened to have
forgotten about it?”
Grievor : “ Yeah”
[47] In his cross examination the Grievor also referred to having the bottle in his locker about
1.5 years prior to his suspension but said that he could not be completely sure of the date.
[48] As his suspension was July 29, 2010 the Grievor has testified and stated on numerous
occasions that he purchased the bottle approximately in January of 2009.
[49] We know that the bottle was manufactured on November 11, 2009. This would make the
Grievors’ timeline impossible, even if one were to give a very liberal meaning to the words
“approximately” or “about” or “give or take“ or “not exactly” or the like.
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[50] Also according to his chronology, the Grievor was drinking vodka with his friend either
in the friends’ driveway or in the parking lot in January. This is not impossible but highly
unlikely given the weather in Toronto in January.
Decision
[51] The evidence of Inmate J is that his accomplices were to meet the Grievor at the Eglinton
and Brimley LCBO and exchange a bottle of Grey Goose and cigarettes for the money. The
Grievor was not to buy the alcohol himself.
[52] Therefore, on its face, the existence of the Smirnoff bottle in the Grievor’s locker is
interesting but not conclusive as this was not the vodka that the inmate J’s friends gave to the
Grievor.
[53] However only a couple of scenarios are possible given that we know that the Smirnoff
bottle was manufactured on November 11, 2009 but the Grievor repeatable testified that he
purchased it in approximately January of 2009.
1) He kept the more expensive Grey Goose vodka for himself and purchased the cheaper
Smirnoff for the inmate, thereby increasing his profit on the transaction.
2) He poured the Grey Goose into the empty Smirnoff bottle to get it into the institution
and then poured it from the Smirnoff bottle into the institutional shampoo bottles for
delivery to Inmate J.
3) He brought the full Smirnoff bottle into the jail for his own use and drank it himself.
4) He brought in the empty Smirnoff bottle to the institution sometime after November
11, 2009.
If #1 is what happened, then he is guilty of selling contraband to an inmate, of defrauding
the inmate and lying to the Investigator.
If #2 is what happened, then he is guilty of selling contraband to an inmate and lying to
the Investigator.
If #3 is what happened, then he is guilty of consuming alcohol while at work and lying to
the Investigator.
If #4 is what happened, he is guilty of lying to the Investigator and at the arbitration on
the important issue of when he purchased the bottle of Smirnoff.
[54] For a short service fixed term CO, even with an otherwise clean record, any of these
offences would properly lead to a discharge.
[55] It is therefore unnecessary for me to determine whether or not the Grievor dealt in
contraband because at best, he lied on a highly material fact to the Ministry Investigator, the
Superintendant and in this arbitration. This alone justifies the termination of his employment.
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[56] The grievance is therefore dismissed.
Dated at Toronto this 7th day of May 2013.
Barry B. Fisher, Vice-Chair