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HomeMy WebLinkAbout1992-2844.Larkin.94-05-25 f ,- -..::. \ .- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT . REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2ioo, TORONTO, ONTARIO. MSG lZ8 TELEPHONEIT~L~PHONE: (416] 326-1388 180, RUE DUNDAS OUEST. BUREAU 2100. TORONTO (ONTARIO) MSG lZ8 FACSIMILE/TELECOPIE (416) 326-1396 2844/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ! Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Larkin) Grievor \ - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE R. Verity Vice-chairperson J. Carruthers Member j D. Montrose Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright Barristers & Solicitors FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional services HEARING February 4, 1994 March 15, 1994 J I ~ / .~~. .- .~ '""'?\',~'t5Y;~\r5' -.' r.. i ,...... -'-. ( ('1' - ~~ .;~:. DECISION .-- Kathleen Larkin commenced employment as an unclassified correctional officer at the Guelph Correctional Centre on February 17, 1992, under a six month term contract. In fact, she had worked as an unclassified correctional officer at the Lindsay Jail from April of 1991 until her family moved to Guelph. Unfortunately, she neglected to inform either institution of her relationship with male inmate, Ronald Tulk, then incarcerated in a federal penitentiary Apparently, Tulk had been in prison since December 1989 In April 1992, the existence of that relationship came to the attention of authorities at the Guelph Correctional Centre. On April 4, 1992, at the request of the employer, Ms. Larkin wrote to Superintendent Simmons explaining that she was in a "common-law" relationship with a federal inmate, that the relationship had predated his incarceration, and i that she expected that he would be released On parole in June. Ms. Larkin apologized for her failure to reveal this information when first employed by the Ministry, and she gave every assurance that the relationship would not affect her work. She went on to state that her goal was a career in correctional services. Superintendent Simmons met with Ms. Larkin on April 6, 1992. At the meeting, the Superintendent reviewed with Ms. Larkin the relevant standing orders and Ministry policies regarding staff involvement with inmates, and stressed the requirement that as superintendent he must be kept advised of any significant change in circumstances. While Mr Simmons was concerned that Ms. Larkin had not told him about the relationship, he accepted her explanation that she did not understand that the Ministry policy applied to ( I - - -<;,---,~..t- -. --~ ;~"",..~{.~...."~_. ....""1"......-"-"'\7"""'T"'~.~-~-.-......,...-... ~.......-,.'--:- ~:n..- ,.." -... , , ,~ ::0; ( (~,. ..... 3, I federal inmates. In any event, on April 14, 1992, the Superintendent wrote to Ms. Larkin as follows: q~ Thank you for your letter of April 4, 1992, advising me that you have a relationship with a man who is currently ~rving a sentence in a federal institution. As I indicated to you during our meeting on April 6th, I am prepared to accept your assurances that this will not affect your work in any way I want to remind you however that you have_taken an Oath of Secrecy and it is absolutely crucial that you protect the security of the institution for the safety of the staff and the inmates in our custody I urge you to be particularly sensitive to information and situations where this relationship could have a bearing on the security of the institution or your credibility as a correctional officer. 1bis letter will not be placed on your personnel file and as far as I am concerned the matter will remain confidential. I would ask however that you adviSe me of any significant change in these circumstances. The Superintendent approved Ms. Larkin for a second term contract for the period ,~ August 17, 1992, to February 16, 1993. However, in a letter dated November 4, 1992, 'I )~ t, Superintendent Simmons terminated her employment. The stated reasons are as follows: It has come to my attention that the circumstances surrounding the relationship referred to in my letter to you of April 14, 1992, have changed significantly I noted in my letter that this relationship seriously impacts upon your work as a Correctional Officer and I requested that you keep me informed of any significant changes. It is clear that you have not made any effort to advise me of the important new developments. Therefore, I must advise you that effective immediately your unclassified contract with the Mioisb:y of Correctional Services will be terminated. In lieu of notice you will receive two weeks pay, based upon an average of your weekly hours worked over"Jhe past four week period. The parties agree that Ms. Larkin was dismissed from her employment as an unclassified correctional officer .-... ,-...,,: ,'~""'~~,"''''''~-''''-''''-''-'''"'V'''r'' "'1';0:::...... ;"'.mT~~.;(ir}.. -.., \ ( .. - 4 \ I. The Guelph Correctional Centre is a large medium security institution for some 600 sentenced adult males. A staff of approximately 470 employees includes some 35 unclassified correctional officers who work varying hours up to 40 hours a week. At the hearing, the employer had no concern that the grievor had failed to report significant changes in circumstances until the incident which gave rise to the dismissal. The grievor's practice in relaying relevant information was to tell either Senior Assistant Superintendent Gary Calverley or Superintendent Simmons, ~ a timely fashion, when she saw them on the day shift. i1: " ~ 5 ~l ~; { The grievor testified that in the early summer of 1992 she spoke with Mr Calverley # "i:\ ~ , ~ to advise him that Tulk would be moved to Beavercreek, a federal minimum security ; i institution. Mr Calverley did not recall "being apprised of that information." However, he did remember a conversation with the grievor in which he was told that Tulk had been granted parole and would be residing at a half-way house in Hamilton. The grievor testified that Tulk never did go to Beavercreek. Superintendent Simmons testified that the grievor told him orally that "her husband was out on parole." In the grievor's words, she reported developments "the first time I ran into Mr Simmons on the day shift." However, on Wednesday, October 28, 1992, Ronald Tulk was arrested by Hamilton- Wentworth police on drug related charges and breach of parole. The grievor testified that she contacted the investigatIng officer on that date and told him that she was a correctional c-, __~. ",. ._......,.-.,,-,..__':^'1...~= ~.",c::...~"':...'Jy..:,~n_ ..?'~'1".:::':,"ce"::;.,,,,::;r~""'_-..1_7! ",,'7",'~ ~:r.'~>::':.;~::';:,":::I"S'~: '"j -." .t.. ~) -, ( ( ... ;.t..... 5 officer employed at the Guelph Correctional Centre, and that in the circumstances of the arrest, she feared for her job According to the grievor, the officer advised her that there was a good chance that charges would be dropped. The grievor testified that the investigating officer told her the following day that there were no new developments and that "it may take awhile." Hamilton-Wentworth Regional Police contacted allthorities at the Guelph Correctional Centre, although the evidence is unclear as to the precise date. We do know, however, that Guelph Deputy Superintendent D Dalgleish advised Guelph Correctional Centre S~rity Officer R. L. Campbell of the contact with the Hamilton-Wentworth police on Saturday, O<?tober 31, 1992. At the request of the Superintendent, Mr Campbell - prepared a written report of the incident dated November 4, 1992 (Exhibit 14). That report appears to contain a number of erroneous statements including the statement: "It is the opinion of the police that Tulk was in possession of the drugs and was bagging it in the apar1ment of his spouse." , In the late afternoon of Tuesday, November 3, a meetIng took place in the Superintendent's office with Mr. Dalgleish, Mr Calverley, Mr Campbell and the Superintendent in attepdance. At that time, it was determined that the grievor had improperly failed to report the incident to Guelph senior management. Mr Calverley then telephoned the grievor at her home. The grievor confirmed that Tulk was in custody at the Hamilton-Wentworth Detention Centre. When asked why she failed to report this fact, the _.__ _M_____~'......._"... _....... _~ ..,"'''...",~~_ --:""'-__1- :- '.- - ---. -. ,- .:,."._- -_\. -'- :1 - -. ( ( c, 6 grievor is alleged to have replied that she had been working a number of night shifts and had not had the opportunity to contact senior staff. Mr Calverley instructed her to submit a written report and to report for work the following day at which time she would meet with the Superintendent '4 It is common ground that the grievor did not work on October 29 on account of illness and was not scheduled to work on October 30. She did work 12 hour shifts on October 31 and November 1 (8:00 p.m. to 8:00 a.m. each day). She was not scheduled to .,,' work on either November 2 or 3. .~ The grievor met with Superintendent Simmons on November 4 at approximately 4:00 t p.m. in the presence of Ron Barber, the union lOcal president By all accounts, it was an acrimonious meeting that lasted approximately 30 minutes. Apparently, the .~ Superintendent's concern was not the fact of Tulk's arrest, but rather the grievor's failure to report the incident. According to the Superintendent, the grievor maintained that she did not have I enough time to report the incident but would have done so eventually Mr Simmons "- testified that the grievor appeared "indignant" that she was being asked for this information. In the Superintendent'swords, "We didn't seem to be on the same wavelength." The grievor testified that she was emotional and upset at the meeting and that Ron Barber did most of the talking. Union President Barber testified that the grievor was sobbing and crying. In ! .h_ ~~~. -.: -" .' _------.:.:l:.....::-:=r.....""::'r.-...--.-~~..;...."";'>"'c!~::~. }"' )...,~....,.'; . '.!,'?j+.....I;J.O;".. ,","?-"''':'' r,t<...-~~ , ...,-. -~1":""'"1~. r- .- ' -, - -- n ( ( 7 his words, lithe way management was talking, it was an open and shut case" and "l couldn't ) believe it was such a big issue. II Mr Barber recalled that during the meeting there was no reference to the presence of contraband drugs in Ms. Larkin's apartment Superiritendent Simmons maintained that he was surprised at the grievor's attitude at the meeting of November 4 and her apparent unwillingness to communicate as had been agreed upon in April. Mr Simmons discharged the grievor for her lack of honesty and forthrightness. In his words, "She had breached the trust between us." ;~ Both the ,institution and the Ministry have long standing policies with regard to the 'j,. \ 1 sensitive area of staff involvement with inmates and ex-inmates. :~, "i~ ~" .~~~, The standing orders of the Guelph Correctional Centre include the following, dated July 1988. "- STAFF INVOLVEMENT WITH INMATES. EX-INMATES. ... I THEIR FRIENDS & RELATIVES 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 relati()nship not in the line of duty, with any inmate without first receiving the written approval of the institutional or branch head. /' In the case of ex-inmates. their relative or the relative 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 situatioos as soon as they are known to him with the Institution or Branch head. The institution or branch head will be the sole arbiter of what constitutes a conflict of interest or possible threat of 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. \ - - - -_._--~~ ----..>. ''-'''-...a.._""__"~~,,.,,, ~~~ -:r.""~.'::!.,l&..-<,_.,:"'_.'1:'~."~""'I':I:..":!~~1i..:, J;....-----.--.S:_~.T"";,"J"'.":1'i',...- _"- . ~ .- ., I ( \ \ ,- 8 Staff not conforming to the above may be subject to disciplinary action. The latest revision of Ministry policy on employee contact with offenders and ex- offenders is dated December 17, 1990 The ,policy reads in relevant parts: INTRODUCITON The purpose of this policy is to support a professional working environment and to ensure that employees will not be subjected to pressure or be compromised in such away as to jeopardize the security of ministry facilities, the care and control of persons in custody, the supervision of offenders in the commUnity or the effective fun<;tioning of ministry programs. DEFINITIONS For the purpose of this policy the terms offender/ex-offender refer to any adult or young person a) currently before the courts for the contravention of a federal or provincial statute who is in a ministry program or on whom a court report has been ordered or b) who has been found guilty or convicted of an offence against federal or provincial statutes and has been or is currently under ministry jurisdiction. , l ,I For operational purpose~ under the Ministty of Correctional Services Delel!:ations of Authority. as 1 delegated by the Deputy Minister, "chief administrator' includes Assistant Deputy Ministers, Executive Co- , ordinators, Regional Directors, Branch Directors, Chair Ontario Board of Parole, Regional Managers, Superintendents of Institutions, Area Managers Probation and Parole, Executive Vice Chair and Vice Chair Ontario Board of Parole, and Managers (AM 18 or above) who report directly to an Executive Manager and who have supelvisOlY responsibilities. " POLICY Any ministry employee who knowingly enters into, foIlllS; or continues a relationship or connection of a personal or business nature with an offender/ex-offender or with someone known to be in a close relationship with a an ~ffender/ex-offender, which might reasonably be perceived as being or leading to: - a conflict of interest - a breach of security is required to discuss the situation with their immediate chief administrator. This policy applies equally to all ministry employees. AUTIIORITY Public Service Act. section 20(2), (3) MinistlV of Correctional Services Act. section 30(2) \, - -/ --- -- " - ( -.. ! ( .- ..:..~ ~. 9 PROCEDURE Such a discussiqn must occur as soon as the employee becomes aware that a reportable situation may e~ J - The chief administrator, keeping in mind the intent of the policy, will advise the employee whether or not the policy is considered applicable to the situation discussed. If it is considered applicable, the chief administrator may counsel the employee informally or respond in writing giving such advice or direction :as may be deemed appropriate to the circumstances. As each employee is in a unique position to assist the ministly to accomplish the pUlpose of this policy as stated above, the onus is clearly on the employee to report as required. Knowingly failing to do so or failing to comply with the direction of the chief administrator may result in disciplinary action. INTERPRETATION It is not possible for a policy statement to cover all circumstances. "- The goal is ~at all ministry employees be free of situations in which they may, by virtue of their position, or the exercise of their judgement/authority, give or receive or appear to give or receive some benefit or advantage. The policy does not apply to chance or accidental situations over which the employee has no control. Examples: - an employee's neighbour or relative is an offender/ex-offender; and \ - an employee attends a party at which an offenc;ler/ex-offender is also ~~ a guest The policy would apply in the following examples: \. - an employee forms a personal relationship with an offender/ex-offender or with someone close to an offender/ex-offender; - an employee hires an offender currently underministly supetvision to do work for herlhim; and - an ex-offender moves in with an employee on completion of her/his sentence. For purposes of this policy when a person ~ to be considered an "ex-offender" will vary depending on the circumstance of each case. Generally, a person will have distanced her/himself from the criminal justice system in terms of time and demonstrated responsible behaviour Further, each correctional officer who works at the Guelph Correctional Centre is required to read and sign an acknowledgement that he or she has understood a '\ memorandum entitled, "Staff Involvement with Inmates, Ex-Inmates, Friends and Relatives" The memorandum from Superintendent Simmons reads as follows: I \. I ( ( 10 In view of recent revisions to the Ministry of Correctional Services' policy on the above-noted matter the follo~ is printed for the benefit and interest of all staff. "Any Ministry employee who knowingly enters into, forms, or continues a relationship or connection of a personal or business nature with an offender/ex-offender or with someone known to be in close relationship with an offender/ex-offender, which might reasonably be perceived as being or leading to a conflict of interest or a breach of security is required to discuss the situation with their immediate Chief Administrator." The putpose of this policy is to support a professional working environment and to ensure that employees will not be subjected to pressure or compromised in such a way as to jeopardize the security of Ministry facilities, the care and control of persons in custody, the supervision of offenders in the community or the effective functioning of Ministry programS. For putposes of this policy the terms offender and ex-offender refer to any adult or young person, a) already before the courts for the contraventio~ of a federal or provincial statute, who is in a Ministry program or on whom a court report has been ordered, or, b) who has been found guilty or convicted of an offence against federal or provincial statutes and has been, or is currently under Ministry jurisdiction. - " In actual implementation of this policy you are expected to submit a written report to the undersigned or the Superintendent at that time, providing details of the relationship as soon as you are aware that a reporting situation exists. You will be advised whether or not the policy is considered applicable to the situation, and may be given advice or direction as deemed appropriate to the circumstances. K As you are in a unique position to assist the Ministry to accomplish the putpose of the policy as stated .' above, the onus is clearly on you to report as required. Knowingly failing to do so or failing to comply :1 ". with the direction of the undersigned could result in disciplinary action. ^ ; On the grievor's first day of employment at the Guelph Correctional Centre she signed a written acknowledgement that she had read and understood the above memorandum. The grievor testified that she married Ronald Tulk in August 1993. She has a child by that relationship and is expecting a second child. The employer's position was that both the policy and the Superintendent's expectations were made clear to the grievor Mr Benedict contends that she was properly discharged for failure to communicate a significant change in circumstances. Alternately, in the event of a remedial award, Mr Benedict maintained that liability should not extend beyond the termination of the final term contract The following authorities were submitted -_..~ . _.~~ ....- - .....t.~ 1 .~. -" - - ., ( ( 4 / ............ 11 in support of the employer's position. Maw and The Ministry of Transportation and Communications. 1/75 (Beatty); Digennaro and Liquor Control Board of Ontario. 103/81 (Samuels); Eriksen and Ministry of Correctional Services. 12175 (Beatty); OPSEU (Johnston) and Ministry of Correctional Services 14/83 (Verity); OPSEU (O'Hara) and Ministry of Correctional Services. 1596/84 (Verity); OPSEU (Karen Woon Sam) and Ministry of Correctional Services. 1252/84 (Roberts); OPSEU (Thomson) and Ministry of Correctional Services. 1794/90 (Kaplan); and OPSEU (Jam) and Ministry ofCo"ectional Services. 933/91 \. (Dissanayake ). I The union argued that the dismissal occurred before the opportunity to report had ~ expired in cir~mstances that amount to a change in reporting requirements. Mr Ryder adopted the position that management acted on a number of misconceptions; namely, that the grievor's husband was storing drugs in the grievor's apartment, that the grievor's attitude had changed and that she had become a dishonest person. Mr Ryder suggested a number of remedies including reinstatement for the balance of the term of the contract, a Miller and Ma~Phail form of remedy and appointment to the classified service. We begin with the observation that there is no evidence before us to support the opinion of Hamilton-Wentworth police that Ronald Tulk was storing or "bagging" drugs in the grievor's apartment. That opinion was relayed to Superintendent Simmons by Security Officer Campbell. We accept,the grievor's evidence, without hesitation, that possession of . drugs in the grievor's apartment was totally unfounded. In fact, the grievor was never made I ~ .- .~ .,",,\ "' .~ ~ --:. ( ( '" , ! 12 aware that the police were of that opinion until Exhibit 14 was introduced at the bearing. We note in passing that the charges against Tulk were eventually withdrawn when the matter proceeded to Court prior, to Christmas of 1992. It is understandable, we think, that the employer has a policy with regard to the - involvement of correctional ~taff with inmates, ex-inmates, their friends and relatives. The purpose of this long standing policy is to establish for correctional officers a professional working environment which is conducive to the objectives of Ministry programs and to prevent either the perception or the reality of conflict of interest or breach of security in our view, at the time of her initial employment with the Ministry, the grievor was less than forthright by failing to disclose her relationship with an inmate then incarcerated ) in a federal penitentiary However, in April 1992, when that relationship came to the employer's attention, Superintendent Simmons allowed Ms. Larkin's employment to continue on the understanding that she would advise him of any significant changes in circumstances. To alleviate the grievor's fear that other correctional officers would learn of the relationship, Superintendent Simmons agreed that the matter would remain confidential and that no letter would be placed in the grievor's personnel file. At that point Superintendent Simmons could have terminated the grievor's employment However, he I chose to give her the benefit of the doubt as long as she complied with the requirement of reporting changed circumstances in the relationship. We are satisfied that the grievor knew that the onus was upon her to communicate in a timely fashion. -- --P'---'--"- '.._~~"-.-:-""l ....~ i'\ -~~ c., ( . 13 It is common ground tl,tat Tulk's arrest and incarceration on October 28, 1992 was l a significant change in circumstances. We agree with the employer's submission that the grievor's failure to report' the incident of October 28 violated the understanding to communicate any significant change, and as a result, placed in serious,doubt the grievor's general credibility While it is understandable that she was unable to report the arrest when she worked the night shift on October 31 and November 1, she could have done so on either October 29, October 30, November 2 or November 3. AIl that was, required to apeviate the employer's concern was a telephone call to either Superintendent Simmons or Assistant Deputy Superintendent Calverley Alternatively, she could have written a note to either management representative and placed it in a sealed envelope to ensure confidentiality Unfortunately, she failed to take either step. \ While we have serious concerns as to the accuracy of some of the statements contained in the report of Security Officer R. L. Campbell to Superintendent Simmons, on the evidence adduced, we are satisfied that the dismissal was based solely on the grievor's failure to abide by the requirements to communicate information of significant changes in the relationship with Tulk. In our view, the grievor's failure to communicate in a timely fashion with senior management at the Guelph Correctional Centre constitutes a serious error in judgment. While that error may not amount to dishonesty, it does, in our view, adversely affect the viability of continued employment. In the result, we must conclude that the employer had just cause for dismissal. J ~~~.------ ~- ~~"".....,.,.......,.. -'~'- #.~ ~. i ( 14 Accordingly, this grievance is dismissed. / ) DATED at Brantford, Ontario, this 25 day of Ma y ,1994 ----==- C. ~~:--~~. R. L. VERI1Y, Q.C. . VICE-CHAIRPERSON \ 'Dissent without writ~en reason' I J CARRUTHERS. MEMBER I D. MONTROSE. MEMBER r'\ I \ ) -