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HomeMy WebLinkAbout1996-1456CASSIDY98_05_28 - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-13lXS GSB#1456/96 OPSEU#96A 177 IN THE MA ITER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (CassIdy) Grievor - and - The Crown In RIght of Ontano (MinIstry of The Sohcltor General & CorrectIOnal ServIces) Employer BEFORE D J D LeIghton Vice-ChaIr FOR THE P Shlme UNION Counsel Gowhng , Strathy & Henderson FOR THE S Kapur EMPLOYER Counsel Management Board Secretanat HEARING March 26,1997, September 18,24-26, 1997, October 9, 1997, November 14, 1997 - Ms Gwen Cassidy was a correctional officer at Mimico Correctional Complex, which is part of the Ministry of the Solicitor General and Correctional Services (Corredional), when her employment was terminated for cause by the Employer In the summer of 1996 the Employer was notified that Ms Cassidy was living vvith an ex- inmate of Mimico and after investigating the matter, dismissed the Grievor The dismissal letter from Mr Fred Williams, Superintendent of Mimico stated the follovving reasons for Ms Cassidy's dismissal. 1 You failed to notify the employer of a personal relationship vvith an offender/ex-offender which could result in a potential conflict of interest situation, specifically; a) on or about November 18, 1994 while the offender was an inmate at Mimico, b) on or about November 1995 at which time you entered into a close personal relationship vvith the above mentioned inmate 2 You committed a breach of security rules of the institution by removing this inmate from a dormitory after 2230 hours on at least three occasions 3 A relationship other than a professional one existed between yourself and the inmate while he was incarcerated at Mimico Ms Cassidy grieves that she has been dismissed vvithout just cause and that the Employer has violated Article 21 1 of the Collective Agreement The Employer's Evidence The events which led to Ms Cassidy s dismissal were discovered by the Employer after Mimico was notified by Mr Herb Szauerzopf. a police officer, that he had been called to a domestic dispute between Mr P Marrone and Ms Susan Spada - Ms Cassidy was present While investigating the domestic dispute Police Officer Szauerzopf discovered that Mr Marrone was an ex-inmate of Mimico and that Ms Page 2 of 39 - Cassidy was a correctional officer, living with Mr Marrone After looking into Mr Marrone's records and discovering that he had been incarcerated for drug dealing he notified Mimico on July 19, 1996 The police officer notified Mimico because he thought Ms Cassidy was in a conflict situation living with a person who had been convicted of trafficking drugs Mr Steven William Wilkinson, Deputy Superintendent at Mimico, testified that Mimico is a medium security prison. Inmate Marrone was convicted of trafficking in narcotics and sentenced to 372 days in prison. He was incarcerated at Mimico from December 20, 1993 until paroled on August 18 1994 His parole was revoked on September 27, 1994 and he returned to Mimico on October 18 1994 He was released after serving his sentence on May 21, 1995 When Mr Wilkinson received the police report from the duty officer on July 22, 1996, he reported this immediately to Superintendent Williams, who asked Mr Wilkinson to meet with Ms Cassidy about the report Subsequently the Superintendent ordered an investigation into the allegations Mr Wilkinson's first interview with the Grievor occurred on July 22, 1996, after the Grievor had met with the Superintendent Present were Ms Cassidy Ms Paula Mattiassi, someone chosen by the Grievor to be with her and Mr Ralph Berry, who was Manager of Recreation at Mimico Mr Wilkinson went through a series of questions, asking the Grievor where she was currently living She seemed reluctant, in his view, to acknowledge with whom she was living Initially, she said she did not know Pasquale John Marrone When questioned about the disturbance at her Page 3 of 39 residence on July 12, 1996, she explained that there had been a domestic dispute with the person she lived with and another individual. When asked who it was that she was living with she declined to answer that question. She was shown a "Conflict of Interest Policy" (the Conflict Policy) which had been sent to all managers and posted in the workplace The Conflict Policy was sent with covering memorandum by Paul Mooney Director of Human Resources Branch of the Ministry on June 10, 1995 After showing Ms Cassidy the policy, Mr Wilkinson asked whether or not, in light its provisions, she thought she had a conflict of interest involving her current situation. The Grievor answered 'No - not at all." Mr Wilkinson testified that the Conflict Policy requires employees to report any potential conflict of interest to the Superintendent. A potential conflict of interest arises if there is a personal relationship with an inmate The Superintendent then insures that the correctional officer is assigned avvay- from working with that inmate Ms Cassidy declined to answer any further questions after denying that she had a conflict of interest She was asked to write an occurrence report which she agreed to do After this meeting, Mr Wilkinson went to Superintendent Williams to inform him that he was not getting the answers to the questions that he expected from Ms Cassidy, that her answers were evasive incomplete, or the questions seemed to be taken lightly A second meeting occurred on July 24, 1996 to question Ms Cassidy on her occurrence report filed on July 22. 1996 She was accompanied by Mr D Graves, her Page 4 of 39 ~ union representative Mr Wilkinson questioned Ms Cassidy with questions provided in advance by Superintendent Williams Mr Hutchings was also present as the management witness to this meeting At this meeting Ms Cassidy admitted that she had a relationship with Mr Marrone and that they did live together She stated that the relationship had begun in approximately November 1995 They had purchased a house jointly in June of 1996 Ms Cassidy had reported in her occurrence report that she had been an old friend of inmate Marrone and that she had met him in Mimico in January of 1995 She acknowledged that she was aware of why he was in prison, that is for trafficking narcotics Mr Wilkinson wanted to establish whether the relationship between the two while inmate Marrone was in prison was professional or personal so he questioned Ms Cassidy on whether or not she was acting as his-case worker or whether any of the information reported to her about family problems or issues were reported to a social worker Ms Cassidy didn't pass on any of the information to social workers Ms Cassidy said that she didn t believe that the relationship was a problem -since it was a longstanding one and that is why it was not reported in the first instance when she recognized inmate Marrone She didn t understand that there was a problem or a breach of conflict having a relationship with inmate Marrone after he was released from prison. When asked whether or not Mr Marrone was still trafficking in narcotics or had drugs in their home her answer was absolutely not, and then she qualified it to say at least not to her knowledge Page 5 of 39 ~c- Mr Wilkinson reported to the Superintendent that he was concerned that Ms Cassidy did not seem to recognize the seriousness of the potential conflict of interest He was of the view that she was not completely candid in her occurrence report submitted on July 22, 1996 Mr Wilkinson also testified at the hearing that he had a very serious concern about her returning to work at Mimico Correctional Officers must be able to trust each other and look out for each other It was his view that fellow Correctional Officers would view her as a risk. This view was based on what was discovered during the investigation by Mr Ken Storey, Security Manager of Mimico Mr Storey interviewed Correctional Officers who worked with the Grievor who saw Ms Cassidy with inmate Marrone out of his dormitory after lock-down which occurs at 2230 or 10 30pm. Mr Wilkinson considered this a very serious breach of security He noted that the Grievor would have had to open the door to -a dormitory where thirty-four people were locked down. Normally a correctional officer does not open a dormitory door after lock down unless there is an emergency, and then only with backup The backup person carries a radio and would be able to call for help should there be a problem. The need to counsel an inmate would never justify opening the door after lock down, in his view Two correctional officers testified that they saw Ms Cassidy with inmate Marrone after lock down. Mr Ian D Souza gave evidence that he had known Ms Cassidy for approximately six years In the summer of 1995, at approximately 23'00 hours, he went to a part of the prison known as the 'Top of I" to deliver mail and Page 6 of 39 - observed Ms Cassidy talking to inmate Marrone at Ms Cassidy's desk. Later that night, when he asked Ms Cassidy why inmate Marrone was out of his dormitory at that hour, after lights out, Ms Cassidy replied that she was helping the inmate to complete a TAP application. A TAP application is a temporary absence application. Mr D'Souza s evidence in cross was that he didn't report this incident at the time and he noted that Ms Cassidy worked in a professional manner He had never had any difficulties working with her Ms Kimberly Montague gave evidence that she observed Ms Cassidy and inmate Marrone talking and laughing together frequently She noted that the Grievor tried, whenever possible, to change her assignment to Top of L even when she was assigned to "Main of 1 " which is a less hectic assignment Mr Marrone was in the Top of 1 Ms Montague also testified that she observed- Ms Cassidy with inmate Marrone at 1 30am sitting together at Ms Cassidy s desk, laughing and talking Ms Montague was doing the inside clock patrol so was certain about the time she observed Ms Cassidy and Mr Marrone together, however she was unsure of the date bf this occurrence She stated that it was very unusual to have an inmate outside his dormitory at 1 30 in the morning and in her view it was a security risk. Ms Montague thought that the incident might have happened sometime in October of 1994 She did not report the incident at the time Ms Montague returned about thirty minutes later, and told Ms Cassidy that she ought to be careful because it didn't make things look good for her She recalls that Ms Cassidy said that she was a big girl and could Page 7 of 39 watch out for herself Ms Cassidy also told Ms Montague that the inmate was having some serious family problems and needed to talk about these things Mr Oswald Saldanha testified that when inmate Marrone was discharged he was on duty and observed that as Mr Marrone left the institution the Grievor put her hand on his shoulder, slid it down to his lower arm and smiled at him. The Grievor had appeared to wait for Mr Marrone to leave the building In his view it wasn t accidental that Ms Cassidy was there Mr Williams began as a Superintendent of Mimico in September of 1995 As head of the prison he has complete oversight of the operations of the correctional institution. Superintendent Williams testified that after being informed that Ms Cassidy was living with an ex-inmate he met with her on July 22, and informed her of the situation and that he would not be conducting the initial investigation. Superintendent Williams testified that his Acting Deputy Superintendent Sari Albert reviewed the reports of Mr Storey and Mr Wilkinson and wrote a letter to Ms Cassidy dated August 9, 1996 which summarizes the allegations which were ultimately the grounds of her dismissal and are noted above A meeting was set up for August '13, 1996, however the Grievor asked for this to be postponed to August 21 at 10 OOam. That meeting proceeded with Superintendent Williams and Deputy Superintendent Neal Harvey, Ms Cassidy, Mr Graves, and Ms Mattiassi. Superintendent Williams put each allegation to Ms Cassidy and asked her to respond The first allegation was that she had failed to notify the Employer of her personal relationship with an inmate prior to that person coming to Mimico Ms Page 8 of 39 ".......- ~ Cassidy admitted that she had a relationship with the inmate dating back to 1989 and which ended in approximately 1991 She met him again in Mimico in 1995 when he was an inmate Her response to being questioned about this was that she didn t know that it was a conflict of interest Superintendent Williams stated that when he arrived at Mimico the conflict of interest policy was posted and he also testified that a correctional officer is trained on what counts as a conflict of interest and that, in fact, they have a duty to keep themselves informed of such matters In response to the second allegation, that she committed a breach of security rules by removing an inmate from a dormitory after 22 30 hours or lock-down, Ms Cassidy initially denied that she had ever done that. Later in the interview, according to Superintendent Williams, she acknowledged that it might have happened, that it was possible that she might have helped with an application or some counselling Superintendent Williams was of the view that Ms Cassidy was vague and evasive in answering this allegation. Further, he was of the view that it was a serious breach of security for her to enter a dormitory by herself without backup In response to the third allegation, that a relationship other than professional existed between inmate Marrone and Ms Cassidy while he was incarcerated at Mimico the Grievor responded that her relationship with inmate Marrone was no different than with others Again, Superintendent Williams was of the view that Ms Cassidy was evasive and inconsistent in answering questions regarding this third allegation. Page 9 of 39 ~ ;~ After consulting with the district office, Superintendent Williams decided that the proper course of action was to dismiss Ms Cassidy from her employment His reasons were given in testimony at the hearing and recorded in his letter of dismissal to Ms Cassidy- In arriving at an appropriate penalty for such serious misconduct, I took into consideration a number of factors including your presentation at this meeting and the level of cooperation you demonstrated during the investigation. As you are aware, a correctional officer's conduct must, at all times, be of a professional and exemplary nature In this instance your conduct over a period of time was not in accordance with Ministry and Institutional policies and clearly represents a conflict of interest situation. Your failure to acknowledge this wrongdoing leads me to believe that there is no opportunity for rehabilitation. Consequently, in this case the element of trust that normally exists between the administration of a correctional facility and its correctional officers has been eroded. In view of the foregoing and given the fact that the safety, security and efficient operation of this correctional facility stands to be easily compromised, it is my decision to dismiss you from appointment effective Friday, August 23, 1996 Superintendent Williams was of the view that Ms Cassidy had admitted the relationship with inmate Marrone prior to his incarceration at Mimico and after he was released from Mimico when she began to cohabit with him in July of 1996 He testified that there was ample evidence to show that there had been a breach of security when Ms Cassidy was seen with inmate Marrone outside of the lock-down hours, although she denied this in the August 21 meeting He noted that Ms Cassidy did not admit the third allegation, that a relationship other than professional existed with inmate Marrone during his incarceration, but that she did not dispute this information either Page 10 of 39 -- Superintendent Williams said in cross-examination that Ms Cassidy was a good employee with no prior discipline record until the events which had led to this grievance occurred. He testified that Ms Cassidy was punctuaL had good attendance, knew her position, and was cooperative The Union's Evidence Ms Cassidy graduated from nursing school in 1976 and was a psychiatric nurse for eight years She married in 1984, and between 1984 and 1991 was home raising a family She applied for employment as a correctional officer and started in February 1991 at Mimico She testified that she took her job seriously, but tried to keep her sense of humour with staff and with inmates She tried to be friendly, compassionate and she listened to inmates She met Mr Marrone in November 1989 She -testified that she had casual contact with Mr Marrone for approximately two years after November 1989 She didn t see him again until she saw him at Mimico It did not occur to her when she saw Mr Marrone in Mimico that she had to report this as a potential conflict of interest She thought if you entered into a business relationship with an inmate that that was a reportable situation. She also thought a relationship with a close family member would be a potential conflict Ms Cassidy testified that inmate Marrone had been at Mimico for about nine months when she saw him for the first time She didn't consider herself to have a special relationship with him and, therefore, she didn t report the prior relationship to Page 11 of 39 ~~ the Superintendent She now understands that the Superintendent sees this prior relationship as a conflict and, therefore, she testified that now she would report any acquaintanceship Ms Cassidy testified to one instance where she was with inmate Marrone after lock-down. Her evidence was that one evening inmate Marrone returned late from an Alcoholics Anonymous meeting at approximately 22 40 He ask6d to speak with her regarding a TAP application. Ms Cassidy didn't consider inmate Marrone as a security risk so she spoke with him regarding his concerns about the TAP and the fact that it had been mislaid or lost in processing He also had concerns about his relationship with his common-law spouse She estimated that she spent ten to twenty minutes speaking with inmate Marrone and then she returned him to the dormitory and locked the door Ms Cassidy denied ever removing an inmate from the dormitory after lock- down. She specifically denied having inmate Marrone out at 1 30am. She had no recollection of ever speaking with correctional officer Montague It was Ms Cassidy's evidence that she didn t speak to inmate Marrone any more than she spoke to other inmates and that she had the same kind of relationship with him as with any other inmate Ms Cassidy did remember passing inmate Marrone as he left the institution when he was released. It was her evidence that if she was at the front of the building she was there for a smoke Ms Cassidy testified that her usual way of saying goodbye to an inmate was to smile, perhaps to pat the person on the back and say Page 12 of 39 ~ something like "hope you won t be back." She thinks that this is what happened with Mr Marrone Inmate Marrone was released on May 21, 1995 Ms Cassidy testified that she happened to run into him in a coffee shop sometime in the fall of 1995 It was her evidence that she did not think having coffee with Mr Marrone was a reportable situation. It was her view that a conflict only arose where there was a business relationship with an ex-inmate, or a family member was involved. The relationship progressed to what Ms Cassidy called a serious relationship in January or February of 1996, and they moved in together in June of 1996 When asked why she did not report this relationship, Ms Cassidy testified that she considered her relationship with Mr Marrone separate to her work. She stated that she didn't think the public would see it as a conflict She also testified that after she moved in with Mr Marrone she considered reporting the relationship to the Superintendent, however, she thought if she did so she would lose her job It is her understanding now that this relationship could be seen as a conflict of interest She testified that she understood that the Conflict Policy was in place to -prevent an inmate or an ex-inmate asking a correctional officer to bring something in or take something out of the institution. She testified that she does take her job and the policy seriously, but that she didn't understand her duty in this case It was her view that the policy was not clear Ms Cassidy testified that at her meeting on July 22 with Superintendent Williams she agreed to be questioned by Mr Wilkinson and that she wanted to Page 13 of 39 -..--- .- cooperate with the process She testified that at her meetings with the Superintendent and Mr Wilkinson she pointed out that she had no union representative with her, however she did agree to be questioned. At the second meeting on July 25, when she was accompanied by Mr Graves, she was extremely nervous and when questioned on her occurrence report, regarding her description of inmate Marrone as a long- standing relationship, she stated that this was poor phrasing or a poor choice of words It was her view that she was not being evasive but rather that she did not realize that she had put herself in a position where there was a conflict It was her view that knowing inmate Marrone did not affect her performance of her job She testified that in this meeting she admitted her involvement with inmate Marrone and apologized for not reporting the relationship At the August 21 meeting, where she had an opportunity to respond to the three grounds which were later used to end her employment, Ms Cassidy testified that she did admit the relationship with the inmate before he entered Mimico and the relationship she had with him after he left Mimico She specifically and emphatically denied the second allegation that she had taken the inmate out of the dormitory after lock-down. It was also her evidence that she responded to the third allegation, that her relationship with the inmate during his incarceration was professional and not personal When asked in examination-in-chief why she did not tell Superintendent Williams about inmate Marrone's returning from Alcoholics Anonymous and being out after lock-down as a result of coming late from that program at the August 21 Page 14 of 39 ~ meeting, her evidence was that she didn't think it was a serious security risk. She stated further that she didn t connect the accusation that she had removed an inmate after hours with the incident where he returned late from the AA meeting On cross-examination, Ms Cassidy testified that she first met Mr Marrone at a cafe in 1989 They met again at the cafe a second time approximately two months later They became friends and went to movies together She was invited to Mr Marrone s parents house on at least three occasions Initially on cross-examination she described going to a movie as a date, and then she qualified this evidence by saying they went out as friends She referred to Ms Marrone as one of two special friends at the time she first moved to Toronto After 1991, she did not see Mr Marrone until she met him in Mimico Ms Cassidy acknowledged that when she returned Mr Marrone to his dormitory after lock-down, after assisting him with a TAP application (after he returned from an AA meeting), she took him back to the dorm, opened the door, and locked up after he went in. She did not call for backup She stated that she had no reason to think that there would be any problems that night She said this was a common practice When questioned on whether she had assisted inmate Marrone with any other TAP applications, she said no When presented with a TAP application signed November 29, 1994, she acknowledged that this is when she must have assisted inmate Marrone with the application. This was, in fact, one month after inmate Marrone was returned to Mimico after his parole was revoked. It was her evidence that after November 29 she only had very short, friendly conversations with the inmate Page 15 of 39 -- --- until his release She did not remember signing another TAP application dated May 5, 1995 Ms Cassidy was cross-examined further on the evidence that she told correctional officer D Souza that she was assisting inmate Marrone with a TAP application in summer 1995 She had no recollection of this When questioned about correctional officer Montague s evidence that she witnessed Ms Cassidy with inmate Marrone at 1 30am, when she was doing clock rounds, the Grievor again denied that this happened. When questioned about whether or not this would be a security risk, to have an inmate out at that hour, Ms Cassidy said "she personally would not see it that way When pushed on this point, with the evidence of Superintendent Williams and Mr Wilkinson that it is a security risk to have an inmate out of the dorm after lock-down, she stated that it was a judgment call. When asked whether her prior relationship with inmate Marrone affected her judgment as to the risk of having him out of the dorm after lock-down, Ms Cassidy responded it was truly her best judgment that it was not a security risk. She was not concerned about being attacked, and she never worried about it On July 24, when Mr Wilkinson questioned Ms Cassidy, he asked her when the relationship with Mr Marrone began, and Ms Cassidy's answer was that it began in November 1995 Ms Cassidy was also questioned as to when she began to live with Mr Marrone Her response on July 24 was approximately November 1995 Her evidence at the hearing was that she began living with Mr Marrone in June of 1996 When questioned further about this discrepancy in cross-examination, she said that Page 16 of 39 ~-_. she got it wrong in the July 24 meeting and that she found the questions in this meeting confusing Ms Cassidy was questioned at some length about her understanding of the Conflict Policy Counsel read out the first part of the policy to Ms Cassidy as follows An employee who knowingly forms or continues a relationship or connection of a personal or business nature with an offender or ex- offender, or with someone known to be in a close relationship with an offender or ex-offender, which might reasonably be perceived as or might lead to a) a conflict of interest, or b) a breach of security shall discuss the situation with the superintendent as soon as possible It was Ms Cassidy s evidence that this policy was not clear She stated that she now realizes that she was in a reportable situation when she met Mr Marrone again in the prison, since there had been a prior relationship with him. However, she didn't know that at the time Counsel cross-examined the Grievor on her evidence that she had not been trained properly on the Conflict Policy Counsel put a test taken by Ms Cassidy during her training, before her and asked her to look at a particular question which asked whether it was acceptable to have a drink with an ex-inmate Ms Cassidy s answer to that examination question was no When questioned about this answer she said she didn t remember everything that had happened during her training Ms Cassidy s evidence-in-chief was that she was also afraid that if someone found out about her relationship with Mr Marrone after she moved in with him that she might lose her job Counsel for the Employer cross-examined Ms Cassidy on this point, that this evidence showed a clear recognition that she was in a reportable Page 17 of 39 - situation. When asked why then she did not report it, her answer was "because she still didn t see it as compromising Mr David Graves also gave evidence for the Union. Mr Graves is a correctional officer with Mimico and has been so for nineteen and a half years He was the Union representative who accompanied Ms Cassidy at the July 24th meeting It was his view that Ms Cassidy was highly nervous and answered quickly during this meeting, that she answered everything in a forthright and cooperative manner He acknowledged that a close contact with someone before or after incarceration was supposed to be reported to the superintendent In his experience there had been some people from school days that he did not report, however, he did report a contact when his landlord s son was put in Mimico He testified that inmates can return from outside programs after the lockup He does not generally call backup to put an inmate back into a dormitory after lock-down, however, if he was doing a bed check he would always call for backup, even though he knows that there are some correctional officers that don t follow this requirement In cross-examination, Mr Graves testified that Ms Cassidy did not appear to be confused by the questions during the July 24th meeting and that she appeared to be telling the truth. She did answer that the relationship with Mr Marrone began in November of 1995 He also recalled the Grievor being given the conflict of interest policy He did not approve of the question of whether Mr Marrone had drugs in their home It was his view that this was verging on a police investigation. Page 18 of 39 ~ Mr Graves testified that he would call for backup if he was to take an inmate out of a dormitory at 1 30am. It was his view that for security and safety it was necessary to have backup He considered having an inmate out of the dormitory at 1 30am as a serious safety or security risk. He also testified that it was up to Ms Cassidy to choose who would accompany her at meetings with the Employer Ms Cassidy chose to have Ms Massiatti at the July 22nd meeting The Employer's Submission Counsel argued that the Employer had shown just cause to terminate Ms Cassidy's employment because of 1) a breach of security which occurred when Ms Cassidy removed Mr Marrone from the dormitory after lock-down, 2) because of her unprofessional relationship with Mr Marrone during his incarceration at Mimico and 3) because of her failure to notify the Superintendent of a personal relationship with the inmate prior to and after his incarceration. Counsel argued that the breach of security alone was enough to justify termination. He cited the Statement of Ethical Principles, a document dated March 1995, arguing that I must keep the statement in -mind in making my decision. He quoted particularly the following" The administration of justice and protection of society are complex endeavours with many practical challenges Our conduct must, at all times, show we are worthy of the trust and confidence entrusted in us Counsel argued that it was the undisputed evidence of the Employer that lock- down occurred at 10 30pm. and with lock-down staffing levels were substantially reduced in the institution. If an inmate is to be removed from a dormitory, a Page 19 of 39 ---- correctional officer is required to get backup, that is another officer is to accompany the individual. The backup officer has a radio and can call for help if there is a problem. The risk of not calling for backup is that an inmate, or inmates, could overpower and assault the individual or take the keys from the officer and then allow others to escape Counsel argued that this kind of breach of security within a correctional institution was extremely serious because the consequences can be tragic He noted that Mr Graves testifying for the Union recognized that such a breach of security is very serious Counsel argued that I should prefer the evidence of correctional officer Montague rather than Ms Cassidy Ms Cassidy was seen with inmate Marrone at approximately 1 30am one evening while Ms Montague did clock rounds Ms Montague had a clear recollection because it was such an unusual occurrence to have an inmate outside of the dormitory at that hour She was certain of the time because she was doing clock rounds, although she wasn t certain of the date Counsel argued that I should prefer the evidence of Correctional Officer D Souza, that he observed Ms Cassidy with inmate Marrone at her desk having a conversation at approximately 11 'OOpm. Counsel argued in summary that Ms Cassidy s testimony on many of the points was inconsistent, evasive and not credible Initially Ms Cassidy stated that she had never had an inmate out after lock-down. Then at the hearing she recalled that inmate Marrone had returned from an A.A. meeting late one evening Counsel argued that it was not credible that Ms Cassidy only thought of this explanation at the Page 20 of 39 ~ hearing and that she did not raise it, either on the July 22nd or 24th meetings, or in the meeting of August 2151 when she was given a full opportunity to respond to the allegations against her In summary, he argued that given that there was evidence from two correctional officers who witnessed conversations between Ms Cassidy and Mr Marrone on two occasions after lock -down, and given that Ms Cassidy s testimony is not credible, there is clear evidence that she breached the security of the institution. The evidence of correctional officers Montague, D'Souza, and Saldanha were that they observed Ms Cassidy speaking with inmate Marrone in an unprofessional manner She was seen laughing and talking with him on various occasions It was evidenced by the way Ms Cassidy said goodbye to Mr Marrone stroking his arm as he left the institution. This evidence coupled with the subsequent relationship with the inmate all lead to a clear inference that her relationship during his incarceration was of a personal nature and not professional as she had claimed. A personal relationship with an inmate is a violation of the conflict of interest policy, and cause for dismissal. Ms Cassidy said that she did not report a personal relationship with the inmate when she met him in the institution, because she did not think it v-as reportable This was her view even though she had visited inmate Marrone s parents home, he was one of only two special friends that she had in Toronto when she first arrived. Ms Cassidy s evidence was inconsistent as to when she actually met Mr Marrone in Mimico In the occurrence report written in July of 1996, she stated that Page 21 of 39 -- she had met him in January of 1995 However, in her examination-in-chief she said that the meeting with Mr Marrone must have occurred some time between November of 1993 and January of 1994 On cross-examination, she changed her evidence again to say that the meeting must have occurred between November of 1994 and January of 1995 Her evidence regarding her relationship after Mr Marrone s incarceration was also inconsistent In answering Mr Wilkinson s questions about when the relationship began she said November 1995 In her evidence at the hearing she stated that the relationship began in January or February of 1996 She told Mr Wilkinson she was living with Mr Marrone in 1995 in the July 24th meeting and yet at the hearing she said that she didn t move in with Mr Marrone until June of 1996 In view of these patent contradictions, Counsel argued that Ms Cassidy s evidence is not credible Further, it was reasonable for her to have reported the relationship she entered into with Mr Marrone after his incarcer('[tion. According to the Conflict Policy correctional officers are obligated to report a relationship when the employee becomes aware or reasonably can be expected to know that a reportable -situation exists Correctional officers are required to discuss a reportable situation with the Superintendent at the earliest opportunity The conflict of interest policy defines a relationship as an ongoing association or friendship which is not directly related to an employee s duties or responsibilities The relationship can be of a personaL business or professional nature Page 22 of 39 --- Counsel argued that Ms Cassidy s explanation that she understood her duty to report only if there was a business relationship was also not credible It is clear by her evidence that she recognized the conflict at some point when she said that she was afraid what might happen to her if she told the Superintendent that she was living with ex-inmate Marrone Counsel argued that the following cases would be of assistance to me in making my decision. Re Alberta and AUPE (1994) 51 L.A.C (4th) 397 Re Treasury Board (Solicitor General of Canada - Correctional Service) and Parsons (1996) 56 L.A.C (4th) 136, OPSEU (Larkin) and Ministry of Correctional Services (1994), G S.B 2844/92 The Larkin case recognizes that correctional officers have an obligation to report relationships with inmates Counsel also submitted OPSEU (K.W. Sam) and Ministry of Correctional Services (1985), G S.B 1252/84 The Union's Submission Counsel for the Union began her submission by noting that Ms Cassidy had admitted the first allegation, which was that the Grievor had failed to notify the Employer of the personal relationship with inmate Marrone, both before and after his incarceration at Mimico She argued that this admission is important to keep in mind as I consider whether there is just cause for her termination. It is also important in deciding appropriate discipline, if any It is especially important given the Grievor has no disciplinary record, and was considered an excellent employee prior to the events which led to this grievance Page 23 of 39 ~ Counsel argued that the evidence was not conclusive on the second allegation, that the Grievor had removed the inmate from his dormitory after lock-down. Ms Cassidy's evidence is a clear denial that she removed the inmate from the dormitory ..- after lock-down. Ms Cassidy also denied consistently that there had been any relationship with inmate Marrone while he was incarcerated at Mimico, which is the third allegation against her Counsel argued that the Grievor s evidence was consistent with the evidence of correctional officers D'Souza and Saldahana. She pointed out that the Grievor had admitted in an open manner that she had returned the inmate to the dormitory after he had returned late from an A.A. meeting and she had assisted him with a TAP application. This evidence is consistent with Mr DSouza s evidence of seeing her with the inmate around 11'OOpm. Counsel argued that correctional officer Montague made her report in July of 1996 about something that may have occurred up to two years before, and that given the frailty of memory she might be wrong about the time that she thinks that she saw the Grievor with inmate Marrone In response to the Employer's view that she was evasive and inconsistent in her responses at the various meetings Counsel points to the evidence of Mr Harvey that in the August 21 meeting the Superintendent asked Ms Cassidy questions twice, and that she attempted to answer in what he considered to be a truthful and straightforward manner Counsel argued that Ms Cassidy was in a Catch-22 situation because she denied that she had a relationship with the inmate during incarceration, and this denial was used against her Counsel pointed out that Ms Page 24 of 39 -., Cassidy attempted to cooperate from the very first meeting, that she voluntarily wrote the occurrence report that was requested. She argued that she had no union assistance at the first meeting or in writing the occurrence report and that she was clearly very afraid, so little weight should be given to this report. In response to Counsel s argument that Ms Cassidy was not credible and that she was inconsistent in her evidence, even before this Board, she argued that Ms Cassidy was clearly highly nervous throughout the hearing and that she had openly admitted a relationship that she was co-habiting with an ex-inmate It was a reasonable perception on her part that she was not in a reportable situation because of her relationship with inmate Marrone Counsel argued on the law that the conflict of interest policy of the Employer violates the rule in Lumber and Sawmill Workers Union, Local 2537 and K.V.P. Company Ltd. (1965) 16 L.A.C 73 Counsel pointed out that this Board is not bound by a company rule Such rules are an indication of how an employer will discipline an employee However an arbitration board must still review and find that the Employer had reasonable cause for discipline K.V.P. established that a unilateral rule of an employer must satisfy certain requirements, the first being that it must be reasonable Counsel argued that in this case the rule was not reasonable She argued that it was an invasion of the Grievor s privacy to have to report a relationship with an ex- offender, and that any rule which purported to regulate off-duty conduct required a higher standard of reasonableness She cited Oshawa General Hospital and Ontario Nurses Association 30 L.A.C (2d) 5 (1981), Empress Hotel and Canadian Brotherhood Page 25 of 39 of Railway Trainmen, Local 726 31 L.AC (4th) 402 (1992), United Automobile Workers, Local 1524 and General Spring Products Ltd. 19 L.AC 392 (1968) Hamilton Spectator and Southern Ontario Newspaper Guild, Local 87 23 L.AC (4th) 364 (1991) I In summary, Counsel s argument was that the conflict policy was not clear Two policies, one dated 1992 entitled "Employee Contact with Offenders, Ex-offenders or Their Families or Friends," and the Conflict Policy dated 1995 were submitted in evidence A document entitled Statement of Ethical Principles (1995) was also tendered. In Counsel s submission each document had different standards and different words, and therefore lacked clarity There was no definite standard. She argued that each document itself lacked clarity, and, so, violated the rule in K.V.P. The lack of clarity in the policy explained the Grievor's confusion as to whether or not she should report after not seeing an inmate for four years Moreover, Counsel submitted the policy as to relationships with ex-offenders is not reasonable, there is no rational connection between the rule and work performance Counsel argued further that cogent and compelling evidence is required for an employee to be dismissed on the grounds that she has compromised security of a .public institution. This is particularly so when the outcome is so serious, resulting in discharge She cited GP. Rail System - Mechanical Services and GAW. - T.C.A Canada, Local 101 55 L.AC (4th) 312 (1996), particularly at page 316 In the instant case, as in any case of discipline, the burden of proof is upon the company It must establish, on the balance of probabilities, that the grievor did sexually harass employee "A , verbally on a number occasions and by physically assaulting her on at least one occasion as alleged. In approaching this issue it must be stressed that although the civil burden of proof applies, the standard of evidence required to Page 26 of 39 discharge the burden must be one of clear and cogent proof, given the gravity of the conduct alleged and the seriousness of the consequences which flow from it Counsel argued that the evidence of the two correctional officers does not amount to clear and cogent evidence Moreover, they did not report Ms O::ssidy until they were requested to fill in occurrence reports, well after the alleged event Counsel argued that there had been no progressive discipline, and that I have the remedial authority to substitute alternate discipline She argued further that there are mitigating circumstances for substituting a penalty for discharge The Grievor supports children. Her work record was excellent and she had never been disciplined before the events which led to this grievance Ms Cassidy has admitted what she has done wrong and shown remorse The possibility for alternate employment after such a termination is not good Finally, Counsel argued the Employer s policy on conflict did not spell out the consequences of violating it Counsel argued that I should reinstate the Grievor with full back-pay because the Employer had not established just cause for termination, but in the alternate should I find that there was just cause for discipline, I should substitute a lesser penalty than discharge Employer's Submission in Reply Counsel for the Employer argued that I should disregard the Union s argument that the conflict policy was a violation of the principles set out in K.V.P. He argued that this Board had recognized the policy in two of the cases that he had cited to me, Page 27 of 39 ---'.-..- Larkin and K.W. Sam. He noted that Counsel was arguing inconsistencies between the statement of ethical principles and the policy, however, what is under review by this Board is only the current policy, dated 1995 Even if I was to find differences between the two documents, it doesn t matter Counsel for the Employer argued that Mr Graves testifying for the Union acknowledged that it was up to the Grievor to choose who she wanted as a representative in meetings with the Employer that she had, in fact, chosen to bring Ms Massiatti and, therefore, the Union was not in a position to argue that she did not have Union representation at the first meeting with Mr Wilkinson. In summary, he argued that the Employer had reviewed Ms Cassidy s failure to report her relationship with Mr Marrone, the breach of security which had occurred when Ms Cassidy had inmate Marrone out of the dormitory after lock-down, and the evidence of an unprofessional relationship existing, even while he was incarcerated, at Mimico to decide whether or not Ms Cassidy s employment should be terminated This is what I must review in order to determine whether the Employer had just cause to terminate Ms Cassidy s employment Counsel argued that not only was there clear and cogent evidence to prove the above allegations from witnesses brought to testify to the events, Ms Cassidy admitted putting inmate Marrone into his cell after lock-down witn no backup This is a serious breach of security Counsel cited OPSEU (Denomme) and Ministry of Transportation and Communication (1983) G S.B 6641/83 for the proposition that given Page 28 of 39 - the general lack of credibility of Ms Cassidy s evidence, it would be inappropriate for this Board to substitute a lesser penalty Decision The issue before me is whether or not the Employer had just cause to discharge Ms Cassidy from her employment. Ms Cassidy admitted that she did not report her relationship with inmate Marrone, both prior to his incarceration and after he was released from prison. She has denied that she had an unprofessional relationship with inmate Marrone while he was incarcerated, and that she breached security of the institution by taking inmate Marrone outside his dormitory after lock-down. The Credibility of the Witnesses Since the evidence of the employer and the Grievor s own evidence differs substantially on key events, the first issue for me to address is the credibility of the witnesses and what evidence accords with the preponderance of the probabilities of the case Having carefully considered the evidence as a whole in this case, I have decided that where the Employer s evidence conflicts with Ms Cassidy s, I prefer the Employer's The evidence of Correctional Officers Montague D Souza and Saldanha was given in a straightforward and clear manner Ms Montague had a clear recollection of seeing inmate Marrone and Ms Cassidy at 1 30am when she did clock rounds While she was unsure of the date of this event, she was positive about the Page 29 of 39 _. time, in part because it was such an unusual circumstance to see an inmate out at that hour with a correctional officer Mr Saldanha clearly recalled what he considered an inappropriate or unprofessional exchange between Ms Cassidy and inmate Marrone upon inmate Marrone s release from Mimico He had a clear recollection that Ms Cassidy ran her hand from Mr Marrone's shoulder down his arm. The evidence of Mr D Souza is not inconsistent with Ms Cassidy s own evidence, that in fact she did have inmate Marrone out after lock-down at approximately ll'OOpm, when Mr D Souza delivered mail to the Top of 1 to Ms Cassidy's desk. It is not surprising that these correctional officers did not report what they saw until required to do so Even when required, there was evidence that there was a reluctance to tell" on another correctional officer While these witnesses gave their evidence in a clear and consistent manner Ms Cassidy's evidence was, at times, inconsistent and evasive Her explanation of inmate Marrone returning late from an AA meeting and requesting assistance with a TAP application to explain why he was out after lock-down at approximately 11 OOpm IS not credible Ms Cassidy had an opportunity on July 22nd 24th and August 21 sl of 1996 to explain the clear allegation against her that she had an inmate out after lock- down. Her initial response was that she had no knowledge of inmates being out after hours In the August meeting she responded that it might have happened for counselling It was not until the hearing that she remembered inmate Marrone requesting help with a TAP after returning from an AA meeting after lock-down. Page 30 of 39 - Some of the inconsistencies in Ms Cassidy s evidence might be explained by the frailty of memory or nervousness, however on some points where she changed her evidence from examination-in-chief to cross, and even within cross-examination, I have to conclude that she is not credible and has not been entirely candid. For example, her evidence in her occurrence report, written July 22, 1996, stated that she first discovered inmate Marrone in Mimico in January of 1995 In her examination-in- chief she said that she met inmate Marrone in the institution sometime between November of 1993 and January of 1994 When questioned on cross-examination she changed her evidence to say that she had met inmate Marrone between November of 1994 and 1995 Another example is that Ms Cassidy described her relationship with inmate Marrone before his incarceration as a 'long-standing friendship in the July 22nd occurrence report She also stated that she had known the family for over eight years There was no reference in the occurrence report that she had not seen him between 1991 and the first time she saw him again in Mimico, which was her evidence at the hearing Further, given her long standing friendship with Mr Marrone, it is hard to teconcile her explanation for not reporting a prior relationship with him, and her evidence that he was no different than any other inmate in the institution. Her evidence as to when she began to live with Mr Marrone after his incarceration was also inconsistent When questioned by Mr Wilkinson on the July 24th meeting as to when she began to live with Mr Marrone she answered November of 1995 However, at the hearing her evidence was that she had a chance meeting Page 31 of 39 ---- with Mr Marrone in a coffee shop in November of 1995 Her evidence was then that she moved in with Mr Marrone in June of 1996 Her explanation for the discrepancy, that she was confused by Mr Wilkinson's questions, is not credible The most significant inconsistency in Ms Cassidy s evidence is the position she took on whether or not she knew she was in a reportable situation. Ms Cassidy s explanation for not reporting her relationship with Mr Marrone was that she thought only business relationships had to be reported. Although a test taken during her training records that she understood that having a drink in a hotel with an ex-inmate was contrary to the policy she testified that she was unaware that she had to report the relationship with Mr Marrone, either before or after incarceration. Moreover, the Grievor contradicted herself in her evidence on this belief In examination-in-chief Ms Cassidy indicated that when she moved in with Mr Marrone it occurred to her that it might be a conflict, but she was afraid that if she reported living with Mr Marrone, she might lose her job This evidence clearly indicates that she recognized a duty to report, but did not do so It is completely inconsistent with her evidence saying that she didn't know that she had to report a relationship with an ex-inmate When she Was cross-examined on this point initially she said that she was afraid of what might happen, and then returned in re-examination to her evidence that she didn t know that she had a duty to report She didn't see the relationship with Mr Marrone as "compromising" It is well established law that the credibility of a witness must be determined by carefully considering the evidence as a whole and how it accords with the Page 32 of 39 - preponderance of the probabilities in the case Given the inconsistencies and the direct contradictions at times in Ms Cassidy s evidence, the rest of her evidence is less credible and where there is clear evidence from another witness, it is more reliable The Breach of Security Even on Ms Cassidy s own evidence she breached the security of the institution by returning inmate Marrone to his dormitory after lock-down at approximately 11 'OOpm. This was the incident witnessed by Mr D Souza. I accept the evidence of Ms Montague, that she observed Ms Cassidy at 1 30am with inmate Marrone laughing and talking together Although no one witnessed Ms Cassidy actually removing Mr Marrone from the dormitory, it is a reasonable inference that she did and that she also returned him to the dormitory without any backup This was a serious breach of security of the institution. This, coupled with Ms Cassidy s attitude that there was no conceivable danger in her having an inmate out after lock-down, or returning an inmate without backup, leads me to conclude that this evidence alone is -sufficient to justify discharge of the Grievor A Relationship other than Professional with an Inmate Ms Cassidy's own description of a special relationship with inmate Marrone prior to his incarceration at Mimico, Ms Montague s evidence that she witnessed conversations between inmate Marrone and Ms Cassidy at numerous times while he Page 33 of 39 ~ was incarcerated, and the Grievor s relationship with him after his releaser lead me to conclude that the relationship with inmate Marrone during his incarceration was not professional and was personal. This too is a serious breach of the conflict guidelines which requires a correctional officer to report any association or friendship with an inmate to the superintendent as soon as possible Breach of the Policy for Failing to Report a Relationship Prior and Post Incarceration I am not persuaded by the Union's argument that the policies on conflict of interest violate K.V.P. In Larkin this Board considered the Conflict Policy dated 1992 The Board in Larkin held It is understandable, we think, that the employer has a policy with regard to the involvement of correctional staff with inmates, ex-inmates, their friends and relatives The purpose of the 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 of the reality of conflict of interest or breach of security (Emphasis added) In K.W. Sam the Board considered an earlier version of the conflict of interest policy It did not disagree with the Ministry s submission that the policy regarding contact with ex-inmates was "obvious and manifestly reasonable and sensible The Conflict Policy (1995) requires that all Ministry employees "shall report all real or potential conflict of interest situations to their manager at the earliest opportunity" Conflict of Interest is defined. A conflict of interest exists where there is a conflict or competing interest between an employee's personal interest and his/her responsibilities as a public servant This includes any actual or perceived conflict and Page 34 of 39 - those situations which have the potential to lead to a conflict of interest A conflict of interest may exist whether or not a financial or other advantage has been or may be conferred on the employee A conflict of interest may arise because an employee is in a position to benefit directly or indirectly from information obtained during the course of their employment or as a result of their ability in influence the decision making process An employee's relationships, other than in the course of employment, may result in a perception of bias or conflict with respect to his/her exercise of authority "Relationship" is defined as An ongoing association or friendship not directly related to an employee's duties or responsibilities The association can be of a personaL business or professional nature Examples of "potential" conflict of interest situations are also included in the policY' (A) Relationships with offenders/ex-offenders Many staff in this ministry are responsible for enforcement of federal and provincial statutes in the Province of Ontario and carrying out the orders of the court In order to maintain a high degree of public confidence it is essential that employees conduct themselves in a manner which is beyond reproach. It is not enough to act within the law An employee's actions must withstand the closest public scrutiny In that regard, a public servant's relationship with an offender/ex- offender may represent a conflict of interest because, in the absence of appropriate direction, it may undermine public confidence in the ability of the employee to carry out his or her responsibilities in a fair and impartial manner These relationships may also present a legitimate security concern, particularly where the employee works in an institutional setting These relationships can be of a family, sociaL or business nature An employee is required to report any relationship which might reasonably give rise to an actual or potential conflict of interest In that regard, consideration should be given to the employee's job responsibilities and the extent to which the relationship Page 35 of 39 -.." ~ impacts on his/her ability to carry out those responsibilities in a fair and impartial manner It is also important to consider the public perception, of the impact of that relationship will have on one's job responsibilities It is not the function of the policy to dictate to employees with whom they may have a relationship However, to avoid conflict of interest it may be necessary to impose conditions and restrictions on the employee's exercise of responsibility It is therefore essential that all reportable situations be brought to the attention of the delegated official immediately Employees should be warned of the potential for conflict of interest and should be encouraged to avoid forming relationships with offenders/ex-offenders Employees, who, during the course of their employment, enter into a personal relationship with any offender currently under the employee's care will find themselves in a conflict of interest situation The employee's responsibility for the supervision of the offender would make it impossible to avoid a public perception of conflict in these circumstances. The Conflict Policy 1995 is essentially the same as the 1992 policy as it regards the issue of reporting a relationship with an inmate or ex--inmate, which is clearly required by both. It is also clear that the policy includes friendship and not just business association as a reportable "relationship" The policy has been recognized by prior Boards as reasonable, clear and rationally connected to the employer s business There is no compelling reason to disagree The Conflict Policy also states that should the policy be breached, discipline may be appropriate The Larkin and K.W. Sam cases are also hopeful in addressing the issue of whether discharge for breach of the Conflict Policy was justified in Ms Cassidy's case In Larkin the Board held that the grievor s failure to notify the superintendent of a Page 36 of 39 ~ relationship with an inmate in a federal penitentiary, although she herself was working in an Ontario institution, was a serious error in judgment The Board held that while it might not amount to dishonesty, it adversely affected the viability of her continued employment with the government The Board in Larkin commented that when the grievor failed to disclose her relationship with an inmate of a federal penitentiary when she was hired, she was less than forthright When her superintendent discovered the relationship he allowed her employment to continue provided that she report any significant changes in the relationship The Board stated that "at that point Superintendent Simmons could have terminated the Grievor's employment." In K.W. Sam the grievor claimed to be unaware of the policy, however the Board found on a balance of probabilities that the grievor must have been aware of the policy prior to entering upon her relationship with the ex-inmate Since the earlier version of the policy left it to the individual correctional officer as to when to report a relationship, there was some discretion as to when to report The Board held that this discretion must be exercised in a reasonable manner In this case the grievor fell considerably below this standard, according to the Board. The Board held. It should not have taken more than a moments reflection for the grievor to realize that this attempt by Mr Spencer to begin a relationship with her had the potential to create a real and present threat to the security of the institution. It was her duty to report this contact as soon as it occurred and seek direction from Mr DuCheneau. In this case the Board held that it was a breach of the policy not to report when an ex- inmate phoned the correctional officer at work in order to begin a relationship with Page 37 of 39 -- her Her further association with him after his incarceration warranted "severe disciplinary sanction." The Board held that a suspension was more appropriate than discharge in this case However, since the grievor was a contract employee, she was not reinstated. I find on a balance of probabilities that Ms Cassidy must have been aware of the conflict policy of the Employer requiring her to report her relationship with inmate Marrone before, during and after his incarceration. Moreover, at one point in her evidence she acknowledged that she recognized a potential conflict when she purchased a house with Mr Marrone and lived with him. However, she chose to ignore it The facts before me are significantly more serious than the K.W. Sam case Ms Cassidy's failure to report her relationship with inmate Marrone continued over a considerable time period, and occurred during his incarceration, which gave the Employer just cause for dismissal. In summary, having carefully considered the evidence and the submissions of the parties I find that Ms Cassidy breached the security of the institution on at least two occasions, that her relationship with inmate Marrone was personal while he was incarcerated. The Grievor admitted that she did not report her relationship with inmate Marrone, either prior or after incarceration. The Employer was proven with clear and cogent evidence that it had just cause to discharge the Grievor I am not persuaded that there are mitigating circumstances in this case that warrant a lesser penalty The Grievor's lack of candour, at times, with the Board, her attitude towards the security breach that she admitted, and her adherence to the Page 38 of 39 position that she was unaware of the duty to report a personal relationship with an ex- inmate before or after incarceration lead me to conclude that it would be inappropriate to consider a lesser penalty For the reasons noted above, the grievance is hereby dismissed. 28 Dated at Toronto this _ day of May 1998 Page 39 of 39