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HomeMy WebLinkAbout1991-1876.Campbell.94-11-03 - ' "' ~+ ONTARIO EMPLO¥~:SDELA COURONNE -;~~ · CROWN EMPL 0 YEES DE L 'ONTA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET WEST, SUITE 2~00, TORONTO, ONTA~.rO, A45G ?Z8 TELEPHONE/TEL£PHONE; (4 ~6~ 326- ~80, RUE DUNDAS OUEST, BUREAU 2~00, TORONTO {ONTARIO), MSG 1Z8 FACSIM~LE/TEL~COPfE : (416] 326-1396 1876/91. IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE B;LRGAINING ~%CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Campbell) Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer. BEFORE G. Charney Vice-Chairperson M. Lyons Member M. O'Toole Member FOR THE A. Ryder GRIEVOR Counsel Ryder Whitaker Wright Barristers & Sollcltors FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services HE]%RING March 16, 1992 The grievor was employed until September 17, 1991 as a -correctional officer at the Guelph Correctional Centre. ~ His seniority date is November 2, 1987. For the year prior to his dismissal he was the ground gang officer which entails supervising a crew of inmates engaged in the maintenance of the property at the Correction Centre. On February 22, I991 he was arrested and charged with three counts of sexual assault contrary to Section 271 of the Criminal Code. One count of sexual interference contrary to Section 151 of the criminal Code and one count of sexual assault and one count of sexual interference ~in relation to his ten year old stepdaughter. The'first two charges r~sul{ed from incidents with a sixteen year old female staying with the grievor and his wife, while she was under their care. The grievor continued to work until his trial on September 10, 1991. During this period he was employed on the midnight shift~ at a special post control position which removed him from inmates and other, staff. ~ There was a preliminary hearing on July 3, 1991 and he was committed to stand trial on all of the above charges. Prior to the trial he pleaded guilty to one count of ~sexual exploitation ~ontrary to Section 153(1) of the Criminal Code, the interference with the sixteen year old, and was sentenced to sixty days in jail. The definition of sexual exploitation, Section 153(1), under which he'was convicted is: (I) Every person who is in a position of trust or authority towards a young person or is a person with. whom the young person is in a relationship of dependency and who (a) for a sexual .purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young.person, or (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction. '(2) In this section, ',young person" means a person fourteen years of age or more but under the age of eighteen years. He served.it at straight time. He did not apply for a leave of absence, on September ~17 after a disciplinary meeting, the supervisor made hi~ decision to discharge the grievor. The form of the discharge was Exhibit 2 and was a letter issued to the grievor and reproduced as Exhibit A to the award. The question for the Boar4 to answer is, in the circumstances of this case and the nature of the employment of the grievor, is this just cause for his dismissal? The Board was supplied with a transcript of the guilty plea 'and the information within that transcript was available to the tribunal. EVIDENCE OF M.C.S.' Evidence was given by Greg Simmons who was a superintendent at Guelph since.May of 1990. He had been employed by the Ministry since 1969 and was supervisor at the Ontario Correctional Institute and at Mimico. His evidence was that Guelph was a medium security centre for adult males. There are 600 inmates and approximately 400 staff. There are ~ells and dorms and they usually received inmates who-are repeat offenders in addition to some who have been in penitentiary. It is the final step before Milibrook which is maximum security. ~The institution offers work programs, and counselling together with treatment services. There is a treatment unit for people with psychiatric problems. There is normally a rotation of assignment, but one might spend up to two years in a unit to allow relationships to develop. Mr. Simmons t°ld the Board that he had met with the grievor on February 26, 1991, after he wa~ charged~ The grievorwas concerned with his status and wanted to know the position of the institute. He expressed fears of working with his gang. He was aware that the inmates knew and he agreed that he could not come back to work in his old job. There was an agreement then that he would take vacation time. After that, he was accommodated at his isolation job. Mr. Simmons' evidence was that the grievor was forthright about.the charges, and also told him that there was a similar incident in 1987, but on a promise that~ he would get counselling, charges were dropped. Mr. Simmons made a memo of this, dated February 26, 1991, which he put in his own file and sent to Mr. D. Page their Regional Director. After the grievor came back from vacation he was assigned to the position of G.A.T.U. Vault Officer during the midnight to 0800 shift effective March ll, pending the results of the trial. That work allows him to work in a glassed-in control room where he .operates a sys~em~of doors. The glass is tinted and the person is anonymous. - On June 14, 1991, Mr. Simmons received a letter from the grievor bringing him UP to date in regard to his trial and complaining about the faceless', spineless staff here, who have given him another reminder of his situation last night. He found the word "diddler" written on his locker door, this is the third time in approximately the last four weeks that he found these little reminders. He had not e~countered any negative reactions face to face, but has received these not so subtle reminders. From time to time the witness said the grievor would phone him to keep him up to date. He explained to him that he was having some difficulty with family court appearances and was afraid to confront the father of his stepchildren. He ~aid there were.other family crises and asked for some time off. He said he was not having an easy time of it. ~He also phoned to ask his advice about his emploYment in regard to his discussions with the crown and his lawyer. Mr. Simmons said he would not advise him nor make a commitment in regard to his further employment. He told him that he would not look favourablY in regard to an immediate temporary absence. After the conviction, the grievor was notified he would be suspended pending an investigation. He was in jail at the time. A meeting took place on September 17 at the Wellington Detention Centre. Present was a representative from OPSEU and the grievor. The witness said he explained his concerns in regard to the grievor's ability to continue as a 'correction 'officer, and discussed the offence and-how serious it was. The grievor told Mr. Simmons~ in regard to the ~987 incident, that he was in counselling. He said it was for stress. He said he did counselling for about one year, but he was vague about it. At the Wellington Detention Centre the grievor was in protective custody with others convicted of sexual offenses. Protective custody is for inmates that are determined to be unacceptable to other inmates. This is based on a so-called prison code and includes sex offenders though not necessarily ail sex offenders, but certainly sex offenders that are involved with children. Also included in that group of people who are in ~protective custody would be prison guards or police officers. In regard to prison culture, the letter of dismissal points out that the inmates ~would know about his conviction and he would be at risk. His credibility as an officer and his ability to meet moral standards would be very difficult with a conviction of this nature. Mr. Simmons was also concerned as to~ the reaction of his colleagues, not necessarily the majority of them, but some of.them. On balance however, his credibility would be seriously undermined and would have an impact on his work as a correctional officer. Even if it was not obvious, it would be there. Mr. Simmons said it is also important that correctional officers set an example and this~ kind .of offence damages his credibility in the eyes of the public. One would expect he said that they would meet a certain moral standard and therefore it would be bad for the image of correction officers who should, along with'~police officers, be leading citizens.- Here, the officer was in loco parentis with a sixteen year old girl and abused that trust. Custodial work can be dangerous and the staff operate by being able to count on their Colleagues to use authority appropriately and.professionally. When that confidence is shaken it can have an effect as to how staff operate on a day to day basis. The witness agreed that it was difficult to know how it would manifest itself, but~the issue was confidence. His evidence is that the MinistrySometimes hires people with records, but 'they have guidelines. A clear period following conviction, three to five years, and secondly, that the nature of the.offenses are of a relatively minor nature. If the offence, is serious, they would not hire. They consider each case on its own merit. There is no hard and fast rule. Other officers 'have been convicted at GuelPh. One was convicted for impaired driving on a third occasion and he was suspended for three days provided he seek the appropriate treatment for alcohol.- He spent fifteen days in jail. Another was convicted of a simple assault involving his spouse. He was returned to work. His wife made representations on his behalf and he was getting counselling. They had a case similar to this one and the person was dismissed. Therefore, there is no hard and fast rule saying that a criminal Code offence must result in a dismissal. 7 The grievor had no employment record and was rated average as an officer. In answer ~o the question, "is he suitable to be a correction officer?", the witness said, they would not try to correct his behaviour since it was not employment related behaviour, but what impact would his continued employment have on the service? He determined that he could not go on and therefore dismissal was the only option. On cross-examination, when dealing with the wife assaulter~ who was sentenced ~o fifteen days in-jail, he agreed he was.only given a letter of discipline, ~but it was pointed out that he was not a correctiom officer he was a clerk, however, the witness Lacknowledged that he did work with inmates and he did have to be a role model. He said he was very concerned about his offence and his ability to continue work; but' there were mitigating circumstances. There was counselling and there was the evidence of the wife that there was no cause for future Concern. Therefore he reached the conclusion that he could continue to work and give the employment relationship a chance. He agrees that the seriousness of both offenses are close. UNION EVIDENCE The union called Donna Reid as a witness. Ms. Reid is a registered nurse at Guelph since 1982 and has thirty odd years experipnce as an R.N.. She knows the grievor and in fact they are very close. He rented an apartment in her home after his arrest in 1991. Her evidence is that the staff and inmates, except for the diddler remarks, were positive and that there were no negative remarks and that his support is phenomenal. There were no-apparent difficulties between May-and September except for the comments_ on- the locker. She also said that in terms of seriousness of sexual offenses, a diddler was'a.¢hild molester and a wife beater was also looked down upon, but in the case of Patterson, apparently she believes that the.wife deserved it, though he was still looked down upon for doing it. Her evidence is that the'wife provoked the husband who is likely to react violently. She also says she was not a witness to any of the provocation. On cross-examination she said that the staff was supportive, they invited the grievor to parties and the Christmas dance, and they visited him jail. When she was asked if the victimasked for it in this case, she said every case has to be assessed and she would no~ answer the question. The next witness was Barry Scanlon, a corrections law officer since 1984 and is president of the OPSEU local at the institution. His said the staff believed that Patterson had assaulted his wife. He served ten days in jail. He was sent to the main stores where he had .no contact with the inmates until after the sentence. He now spends 80-90% of his day supervising four to ten inmates. He tells them what to do. He.runs in effect .an open store and he deals with thirty or forty others per day. He acted as Patterson's replacement when he'was out and the inmates.asked on a weekly basis what his situation was.and after he returned to work he had no problems with other staff. In terms of sexual offenses, the inmates consider anyone charged as guilty and a "diddler" to them is child molester. On cross-examination his evidence is that the union has fought_ hard for the correction officers to be seen as professionals and they compare themselves to police. The jobs have minimum standards which are required to protect the public and the integrity of the profession. He agrees a correction officer must be a role model for inmates and he must demonstrate ~hrough ·example. He also agrees that the job requires good moral character. THE' F~CTS Based on the evidence of Superintendent simmons the' reasons for his dismissal were, l) his ability to get on with the inmates, 2) his ability to get on with Staff, 3) the effect it would have on the service and on the reputation~of correctional officers, 4) how it would effect the department, 5) how the public would perceive it if he continued to work as a correctional officer, 6) his ability to do his job. ~ It should also be pointed out'that a convictionunder 'Section 153(1) can be by way of summary conviction or by indictment, here he was convicted by way of indictment. The sexual interference was with a very young woman, and by his own admission, he had been involved with that type of behaviour in the past. We had no evidence from the grievor as to what his present situation is, whether he was getting counselling, or what his views on the subject were. This Board has no evidence that the grievor is receiving any treatment. .10 The offence .he committed was in my view, one of a matter of truss in addition to the sexual nature of the offence. It is my view that the grievor was in loco parentis with~he young woman and to me that makes the offence more serious and more likely to affect his ability to do his job. His offence was not even an isolated incident. The evidence is that he made sexual advances over a two day period when he was alone with her in the house and where there were other young children. The evidence of Donna Reid is unusual in that she seems to support wife beating because it is usually caused by provocation from the wife. She will not say if the grievor was provoked in committing this offence. I find her evidence doubtful and of no value. DECISION In argument, counsel for the union says that 'the standard should be, can there be a workable employment relationship? His view is that that is entirely possible because, of an individual who is convicted for impaired driving on three occasions was continued to be employed and the individual Patterson, who was guilty of wife beating, continued to be employed. His argument is that one Cannot draw an arbitrary line if the wife beater can continue to be employed why can't the child molester. If they want to tighten up the policy, his view is they should promulgate a rule. The fact that someone who was guilty of wife beating was not dismissed is of course relevant. It should be pointed out that there were mitigating circumstances in that case, namely,'that the wife came forward and the offence is not seen in the same. way by inmates, as~ child molesting. In addition, there is not the same element of breach of trust as there~is with a minor. He further argued that if he was able to continue to work while the charges were pending, which were much more serious than what he actually pleaded guilty to, he should be able to continue to work now. At that time he was not yet guilty and was. accommodated. A number of cases were cited some of which restored to work employees convicted of offenses i~deed even in the Ministry of Correctional Services. In the case of OPSEU(Gardiner) and The Crown in Right of Ontario (Ministry of Correctional Services 1113/89 (B. Fisher)',,an employee who was convicted of theft under $1,000 was reinstated after he had been discharged. The Soard found that'despite the conviction, they would.not have convicted in similar circumstances and that they believed the grievor's story, which the Ministry and the court rejected, that he was following an inmate, and' while following that inmate, had inadvertently placed a tape in his pocket. His stated reason for following the in~ate was because he was convinced the inmate was shoplifting. The Board accepted that evidence and reinstated that grievor. In Re Gutierrez and The Crown in Right of Ontario CMinistry of Attorney General 29 L.A.C. (2d) p. 333, an employee was convicted, of theft under $200 arising out of an incident of shoplifting at a Toronto department store. This employee had a record prior to his employment with the Ministry, although unknown to the Ministry at the time of hiring · her, 'of other convictions for shoplifting.--The grievor's~job-twas keying into the computer all court records and documents. At page 341 the Board said, "it is difficult to determine precisely how the need of the Ministry for integrity in the administration of the Courts would have required the dismissal of the grievor." The Board reinstated the grievor ~ith conditions as to psychiatric treatment designed to control her personal problem. In Re Emergency Health Services Commission and CUPE. Local 873 35 L.A.C. (3d) p. 400, (British Columbia Case A.E' Black), the Board asked itself the question, "indetermining whether or not the discharge imposed by this employer was appropriate in all the .circumstances, I .must consider whether or not the trust, responsibility and confidence which the employer must maintain'in the community it serves has been or could be in the future reasonably affected by the conduct of the .grievor. Put another way, is there a factual basis for assuming that the grievor, by his misconduct, forfeited public trust and confidence which would impact on the employer to such an extent as to conclude that the employment relationship has been irreparably severed." In that case, the grievor, an ambulance driver, was convicted of a sexual assault and, based on a pre-sentence report and character evidence, he was given a suspended sentence with three year Drobation subject to conditions. In that case, at pages 410 and 411, the arbitrator cites a number of factors that go to mitigate the grievor's actions.~ The fact that the grievor was extremely intoxicated at the time of the assault. The breathalyser reading taken at least an hour after the incident continued to show~.a significantly high blood alcohol component. .(b) The grievor has no previous criminal record, coupled with a very productive work experience. (c) At the time of the incident, the grievor was undergoing severe financial and marital problems which resulted in large measure from the unexpected birth of triplets in June, 1983. The birth of these three children, all at one time, had provided extreme financial as well as time Dressures, resulting in a strained and disruptive marital relationship. (d) The grievor has been diagnosed as an alcoholic and continues to undergo treatment, as. well as psychiatric treatment. (e) The.incident was out of character for the grievor on the basis of testimony from co-workers and psychiatric reports. (f) The grievor presents with no history suggestive of any' chronic psychiatric disability. (g) The grievor's explanation for the events has been consistent from the first interview. There has been no denial or refusal to accept full responsibility for his act of misconduct. (h) The events of April ll, 1987, resulted in the grievor feeling a deep sense of shock, extreme distress, agitation~and remorse. (i) There is no evidence of any functional or organic psychosis or of any major effective disorder. (j) The grievor appears t~ be keeping all of the terms and conditions of his probation. (k) There is no evidenca', medical or otherwise., of any sexually deviant attitudes or propensity demonstrated by the grievor. There is no need for regular psychiatric medication. There aDpears no indiction or likelihood that the grievor is likely to commit such an offence again. In result, he suspended the griev6r for eight months, but reinstated him to work. There has also been a number of cases where discharges were upheld. In Re Co~moration of the City of Cornwall and C.U.P.E.. Local 234 (J.E. Roach) 31 L.A.C. (3d) p. 150, the grievor was a skilled labourer working for the City of Cornwall~ He was convicted of sexual assault and was sentenced to a twelve month prison term following three years probation. In addition, he had a previous criminal record which was revealed at the time of sentences. ~he discharge was upheld. In Re General Motors of Canada- Ltd. and United Autqmobile Workers. L~cal 222 (E.E. Palmer, Q.C.) 21 L.A.~. (3d) p. 445, the grievor was an inspector who pleaded guilty to the possession of hashish oil for the purposes of trafficking and was sentenced to 89 days in jail. The arbitrator felt at pages 447 and 448 that the offence itself was so serious and its impact so severe, that no further justification was required and he upheld the discharge. In Re Et°bicoke Board of Education and O.S.S.T.F. DistriCt 12 (K.P. Swan) 2 L.A.C. (3d) p. 265, where the grievor was a teacher of industrial arts and other subjects. His reputation as a teacher was exemplary and he was active and offered very positive leadership in the school. He was convicted of conspiracy to commit an indictable offence, namely, possession of stolen property in the nature of a tractor trailer loaded wi{h colour television sets'with a wholesale value of $60,000. He was sentenced to a~fine of $2,000 or ninety days' imprisonment. The arbitrator says at page 271, "Pri~a facie, a conviction 15 for an indictable offence strikes directly at the exemplary aspect of a teacher's duty...It is fundamental to the-education process, as we see it, that teachers are seen not only to teach students, but to practise, within reasonable limits, that which they teach." The discharge was upheld. The duties of a correctional service officer put them in a position of authority. One is required to have trust in them. It is the way that they see themselves. They liken themselves to police officers and there is no particular reason why that is not an acceptable standard in terms of 'the sorts of behaviour ohe should expect ~from them. ~ _ I am satisfied on the evidence that the employment relationship has been severely affected. For the reasons'set out in the evidence of'Superintendent Simmons, namely, a) the grievor's relationship-with the inmates would be affected, b) the grievor's relationship with his fellow officers would be affected, c) the reputation of the 'service would be affected, d) it would tend to bring the department into disrepute. The crime committed by the grievor is in my view serious, and in the words of Arbitrator Swan in the Board of Education case (Supra), if you are convicted of an indictable offence, there is prima facie evidence of a very serious crime beiDg committed. There is no evidence before this Board of any mitigating factors. He is a short term employee of average ability, who did not give evidence as to whether he is taking treatment, whether he is likely to commit the offence again, or whether he has made any efforts to rehabilitate himself. It is my view that this is a classic case where virtually all .of t~e factors normally associated with upholding a discharge for a criminal conviction are present and none of .the mitigating factors are present. In result then, the discharge is upheld 'and the grievance is dismissed. DATED at Toronto this 3rd day of November', 1994. ~era£ J. ~ey, Q.C., hairperson concur "M. 0 'Toole" M. O'Toole, Employer Member I dissent "M. Lyons" (dissent to follow) M. Lyons, Union Member 336 Victoria Rd, N., .. Guelph, 0n~ario o '" ... . We met on' Sep=e~er i7~, 1~91, at ~i ~elli~gton DeCenCieS'...' -.. ":... Cen~e ~o ~ac~s ~concarns re~n9 ~our conviction for a serious cr~n~ o[~ence. On .Sep=~e= 10~ y~u were convic~d ~f Sexual Exploits=ion (S~on 153 Cr!~i ~de of ~1 and sentenced ~ (60) I have' given ~orough cona~era=ion to ~e info~on by you and yo~ represen~es ac ~e ~e~ng.. I acknowledge ~t ~ f~ ~ck ~ 1987, wh~ a si~lar inci~ occurred, . you have ~ effo~ ~ ge= co~s~ling fo~ your persona~ ~ probl~. I also ~ ~ you p[~ad 9uii=y =o ~e offence and at ~e =~e ~~d r~rse for your My res~nsibility is =o conaid~ h~ ~is convtc=ion ~our ~plo~= aa a ~~o~1 ~ficer. I have ~e Cr~nal c~e ~acrip~on of yo~ off~ce. I= rela~es to ~ ~dividu~ w~ is in a ~aiti~ of ~t or offence of ~ia ~e ~s seri~ ~p~ca~o~ fo= ~.work. ~ a co~o~ Office, y~ ara e~ted ~ // to ~a ~~ ~ ch~ge ~rough yo= ~du~ y~ ~d by dem~strat~g ~a= ~u ~e ~w abid~g. In ~ou have a v~ re~ ob~ga~io~ to ~ndu~ yourself on ~d ~d ~ral char~ct~. ~ail~e tO do 80 affe~s ~our wi~ i~tea and your fell~ offices aha $~iou~ly your ~lltty to f~ction effectively ~ a correctiona~ ~acl~ity, Fur~a~re, the repu~a=io~ o~ ~e ~l~try of Correctional Se~ices can be seriously ha~ if such co,duct is accepte~ or condoned in any way. ~aving given due consi~era~on ~o all of ~eae factors, it ia my decision to di~os you from ~ploy~n= in accor~ce with Section 22.3 of the Public Service Act, e~ective date. 3DI~3 ~-~,I~.3~ ~.ta~lS~l ~T :~T Please arrange to have your ident£fica~io~ card, a~anding orders ~d-yo~ ~fo~ G. G. Si~, G~: Jf cc: ~. ~. A. ~ssidy, ~ional . Shoe~tt~, ~ion~ ~. R. Dawson, Directo=, H~n .Personnel - G~ph G.S.B. 1876/91 OPSEU (Campbell) and - Ministry of correction Services DISSENT have read the decision of the majority; however, with respect, must dissent. Subsequent to the last day of hearing in this matter.and prior to issuing this award, we weremade aware of another decision of the G.S.B. - OPSEU (Mandar) and the Ministry Of Correctional Services 87/93 r(H. Waisglass). The facts and the arguments in that'case were very similar to the facts and argumnents in the case~before us. In Mandar: The grievor was employed by the Ministry of Correctional Services and had direct contact with inmates and other staff. The grievor was convicted of sexually assaulting an eleven year old girl (his God child). When the Ministry became aware of the conviction, the grievor was terminated. The Ministry argued, inter alia, that the grievor ought not to be reinstated because: there is a "code" among inmates that could result in a "diddler" (child molester) being attacked by inmates. other staff wouldn't want to work with a "diddler" and may not ccme to his assistance in an emergency. given the attitude of both staff and inmates toward- "diddlers", the grievor would not be able to do his job satisfactorily. continuing to employ the grievor would brin~g the Ministry into public disrepute. (In this case, it was a member of the public tb~t brought the grievor's conviction to the Ministry' s attention. ) ~ The Union argued, inter alia, that there was no just cause for the grievor's termination and that he should be reinstated ~ecause: there was no evidence that inmates, regardless of their feelings, had ever attacked a staff member because he had been accused or convicted of "diddling". there was no evidence that staff wouldn't work with the grievor and come to his aid in an e~rgency, in fact, during the hearing, several staff members supported the grievor' s return to ~Drk. there was no reason to believe that the grievor could not do his job satisfactorily if he was returned to work. the Ministry already employed a number of people who had been convicted of serious criminal offenses. There was ~o evidence that continuing to employ a person convicted of sexually abusing a child would be a ca~se of greater harm to the reputation of the Ministry. The Board accepted the Union's arguments and reinstated the grievor without loss of seniority and with full ccmpensation for all lost wages and benefits, with interest. ,.. 3 Given the similarity between the 'tw~ cases, and given the rule established in OPSEU (Blake et'al) and Amalgamated Transit Union 1276/87 (Shime), I believe the grievance ought to have been upheld. Dated at Toronto this 1st day of November, 1994.