HomeMy WebLinkAbout1977-0140.Adams.78-08-10..;
Between:
Before:
IN THE MATTER OF AN ARBITPATION
Under The
CROWN EMPLOYEES COLLECTiVE BARGAINING.ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Mr. H. B. Adams
- and -
The Crown in Right of Ontario
Ministry of Correctional Services
Professor G. W. Adams. - Chairman
A. Fortier - Member
H. Simon - Member
For the Grievor
k!r. R. Nabi, Grievance Officer
Ontario Pub!ic Service Employees Union
1901 Yonge Street
Toronto, Ontario
For the Emo:oyer
Mr. J. F. Benedict, Personnel Branch
Ministry of Correctional Services
2001 Eglinton kve. E.
Scarboroagh, Ontario
;antiary 6, 17, SD
April 21, April ZB, 1978
Suite 2100
180 Dtindas St. W.
Toronto, 0ntar;o
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In this case, Mr. H. B. Adams grieves that his dismissal
from the Ministry of Correctional Services is unjust and unwarranted.
,He seeks reinstatement without loss of pay or benefits. Mr. Adams
was employed as a correctional officer at the Hamilton Jail in
the City of Hamilton, but was dismissed from this position by
Mr. R. D. Phillipson in a letter dated September 28; 1977.
The letter reads:
Dear Mr. Adams:
on September 21st, and 22nd, 1977 meetings
were held in my office concerning the allegations that:
(I) You conducted yourself in a manner unbecoming
a Correctional Officer in that on August 28th,
1977, you failed to properly account for
security keys contrary to Hamilton Jail
Standing Orders, and further,
(21 During the investigation of the offence you failed
to submit accurate verbal end written reports.with
respect to the aforementioned incident.
In response to the allegations you have denied
any culpability whatsoever, or even to being in a position
to effect either the disappearance or recovery of Key
#63 on AuguSt 28th, 1977. You further stated you were
unable to make any significant ctintributions as to events
surrounding the incident.
The evidence gleaned fro'm written records
displaying your affixed signature and other corroborated
statements clearly indicate you were the only person in
a position to return the missing key to the press whilst
other staff, drawn from their assigned posts, attempted
to effect a successful recovery. In view of the fore-
yoiny I feel it is significant that you have failed to
offer any valid defence. Therefore, based on the
evidence I find that the allegations against you
have been proven, end can only conclude that your
behaviour which jeopardized the security of the
institution was an intentional act, totally
without justification.
As you must recognize, trust and
credibility are inherent qualities essexitial to
the position of Correctional Officer. Your
unacceptable conduct in this'md other documnted
situations has sufficiently eroded my confidence
in you where I find you can no longer function as
a Correctional Officer.
As a result, it is my decision that
you are to be &an.issed for cause from thd Ministry
of Correctional Services two weeks from the date
you receive this letter. In the interval you are
not required to report for duty.
I must advise you that you have
recourse to appeal your dismissal in 'accordance
with the procedures stated in the Working Conditions
Collective Agreement.
Mr. Adams was therefore dismissed because the employer believed he
was responsible for the disappearance~and sudden subsequent reappearance .,;~
of key #63, the key to the medical room in the jail. Asone might expect,
key control is an important component of security in a jail and the loss
of a key has serious implications for the institution. Standing Order
Number 4 entitled "Key Control" was adduced into evidence and its
detailed instructions confirm the importance of the key control system
(Exhibit 6). If prisoners recover a key for an accessible door the
security of the institution is obviously jeopardized and this is so,
apparently, even if the'key is to a door inaccessible to prisoners
because of the capacity of some inmates to modify articles of this kind.
3
Therefore, the loss of a key is taken most seriously by the staff.. However,
in this case the Board is confronted with an alleged “prank” involving key
control and not the actual loss of a key.
Just how serious this conduct
should be viewed.is an.issue with.which this Board must concern itself.
Acting Shift Supervisor L. Bowen filed the following ~report on
the incident:
Ministry of
COl-F2CtiO~~l
Services
.~.
OCCLliTellCe
Report
To Superintendent Institution Date Tine
Mr. R. D. Phillipson Hamilton Jail Sept.11, 1977 08:OO hours
Subject/Nature Of Report
Night Shift of August 27th, 1977--Acting Shift Supervisor
L. mwen
Gn Sunday, August 27th, 1977 I was Acting Shift Supervisor
of the night shift. At about 03:30 hours Geiorgy got his
Ventolin. At about 03:40 hours pizza arrived, delivered
by a friend of Mr. Macaluso~s. At 06:OO hours Mr. Hayes
got his Kitchen Keys. At 06:lO hours Key 63 was missing.
I searched the Key Box with'Mr. Macaluso but Key 63 was
not found. I ordered Mr. Adams to take .Wor #2, and all
areas were well searched including the garbage, Nurses'
office, Shift Supervisors'~ office, and all landings by
myself, but no Key.
When five staff members arrived for the day shift I order
Messrs. Regan and Macaluso to go to Mr. Macaluso's friend's
place at Mary Street. This was at 06:40 hours. Mr.
Macaluso gave Door #1 Keys to Mr. Adams. ,At 06:50 hours
Mr. Adams gave Door #1 Keys to Mr. Kerr at Shift Changeover,
and at this time Mr. Kerr found Key 63 in a spot where I
had already searched twice previously.
. j . . c
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At about 07:OO hours Mes.sr.5~ Regal and Macaluso returned
from Mary Street. This sort of thing is no joke:-
Original signed by:
“L. Bowen, C. 0. 2”
Signature of Reporting Officer
Bowen has been a correctional officer for twenty-three years. The ~.
key was lost during the 11:00 p.m. to 7:00 a.m. Shift, commencing
Saturday, August 27th and going over into Sunday, August 28th. Mr. Bowen
was the acting shift supervisor for this shift, a job involving the place-
ment of men.- He advised the Board that two sets of keys formed the basis
to key control - the front door #l set and the front door #2 set. Front
door #1 contains five keys including the key to the key press where all
the keys other than those on the two sets are kept and the key to the main
door leading to the prisoner's quarters. Front door #2 includes the key
to the front door to the institution and the key to the inner front door
leading to the medical room and other offices. The key press is located
in this latter area. Only one of each set is in circulation at any time
and key number 63, the key that was lost, was not on either set but rather
located in the key control box or key press.
.
When keys are drawn from this box a request must be made of the officer
in charge of front door #I key set who then issues the key and records the
issuance in the front door #1 key log book. When the key is returned this
transaction too is recorded.
,~.
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Bowen testified that at 6:00 a.m. on August 28th the key press was
opened to ret,rieve the cook's kitc,hen key and it was discovered that
key 63 was missing. Bowen said Mr. Macaluso was in charge of the
front area and therefore in charge of front door sets #l and #2. Macaluso
advised that he m&t have forgotten to put the key back in the key press 'and
they both went to the medical room (or nurse's office) to look for it.
However, the key was not there. Bowen said he, Macaluso and a Mr. Regan,
who had drawn the key earlier in the, shift, looked again in the key press.
Bowen then ordered a full scale search, conducted primarily by him,
Macaluso and Regan. The press was searched three separate times between ._.~.
6:00 a.m. and 6:20 a.m.
While this search was in progress, the grievor was stationed in the
nearby front area of the jail and Bowen says he instructed Adams to take
both key sets (#l and #2) from Macaluso when the latter officer began to
search through the garbage. Bowen said that on searching the press he
checked every hook in it as well as its bottom shelf after the contents
there had been removed. Bowen also asked the employees in the vicinity
to empty their pockets, except for Adams. Bowen said Adams had not been
"on the door" and he so concluded he would not have it. Macaluso,and
Regan left the jail at 6:20 a.m. to ascertain whether the key had been
inadvertently handed to a person who had earlier attended the jail to
deliver two pizzas to the jail staff. They were gone eight to ten
minutes and did not find the key.
While ,Maculuso and Regan conducted this search, Bowen said Adams
was letting the staff for the next shift into the jail. Then at 6:50 a.m.,
a Mr. Kerr, who had replaced Mr. Adams in the front door area and who in
fact was taking over Macaluso's key control press responsibilities,
reported that he had found key #63 in plain view on the bottom shelf
of the key: press. Bowen denied having key 63 on his person at any time
during the shift.
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On cross-examination, 8owen acknowledged that the drawing of key
63 by Regan earlier in the shift had not.been recorded in the log book,
nor had the issuance of key 62 to Bowen to inspect the medical office
when key 63 was discovered missing. Bowen also testified that he did
not see Adams in the vicinity of the medical room at any time during
the shift and never saw him in possession of either key number 62 or keys
63 during that period of time. He testified that the key press
was locked after each time it was searched between 6:00 a.m. and 6:20
a.m. and someone was always.in the medical room during this time.
A review of Bowen's report shows that an inmate required medication
at 3:30 a.m. 'Bowen told Regan and Regan then requested key 63 from Macaluso
to obtain this medication which had been left by the nurse. The Board
was further advised of a medical log in which medication entries are made ~... ___
by the nurse. The pages of the log show that at 3:30 a.m.. during the
previous shift Adams provided medication to the same inmate and recorded
the issuance~of the medicine in the log,but no entry was made by Regan
. ..for August 28th and Bowen told the Board that such entries were not
mandatory. Bowen said that at about the same time, a man known to
Macaluso delivered two pizzas to the jail.
Macaluso has been an officer since May, 1976. On the 11:OO p.m. to
7:00 a.m. shift, he was in charge of both the front door #l and #2 positions.
His duties centered on controlling movements in and out of the institution.
Having both sets of keys, he was in charge of all keys in the institution.
He testified that at 3:25 a.m. he received a call from the third landing ,.
officer advising of an inmate's request for medication. Macaluso then told A'
Regan who came over to the key press and Macaluso issued key 63 to him. Both
;
officers then went to the medical room, Regan to prepare the medication, and
Macaluso to weigh himself. On retrieving the medicine Regan
returned the key to Macaluso and told him toleave the
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office door unlocked sothe medication could be returned. Macaluso
testified that he is not sure whethet- he, then put key 63 in his pocket
or whether he left it in the unlocked medical room.' Both men left the
room and Macaluso let Regan into the inmate's quarters. Just at that
time, Mr. Jarvis, another officer, was coming out of that area from his
clock rounds and Macaluso handed both sets of keys to him because Macaluso
had to proceed to the ,female department. On returning to the front area
of the jail, Macaluso saw that his friend had arrived with the pizzas that
Macaluso and some other officers had ordered. Bowen, Adams and Jarvis
were also there. Macaluso was holding the money that had been pooled to
buy the pizza and gave this six dollars to his friend, the delivery man.
He saidat the same time, in the presence of Adams, he told Bowen where
Regan was. Jarvis let the delivery man out of the jail and Macaluso,
Jarvis and Bowen proceeded to the back office to eat the pizzas. Macaluso
testified that Adams joined them shortly after and said that Regan had not
logged the medicine into the medical log book. A~,few minutes after this,
Regan came into the office.and the pizzas were shared. Macaluso continued
in charge of the two sets of keys, giving them to Jarvis every half hour
while he went to the female department to punch the time clock located
there. peach of these..absences amounted to one or two minutes.
According to Macaluso, at about 6:lO a.m. Bowen asked Adams if he had
key 63 who at first said "yes" and then corrected himself saying Regan had
it. Adams, after inquiring Of Regan, told Bowen that Regan did not have the key
and Bowen then asked Macaluso. He and Bowen looked in the press and
the medical room with no success. They also searched the lunch room.
Joined by Regan, they again searched the press, looking behind every
key and on the press box shelf. Key 62, which also opens the nurse's
office; was taken by Bowen;.the press was closed; and the three officers
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went into, the medical room again. Macaluso then suggested he search
the garbage on the chance it was accidently thrown out and handed the
two sets of keys to Adams before doing thi,s. The last search of the
presswas 6:22 a.m. according 'to Macaluso and it was immediately after
this last search that he gave both sets of keys to Adams. By this time
the staff for the next shift were reporting to work. Bowen also asked
the officers to empty their'pockets and Macaluso testified that he
(Macaluso) asked Adams to do so as well. However Adams refused, denying he
had the key. Following this, Macaluso and Regan went to the home of the
person who had delivered the Pizza to see if he had inadvertently been
given the key. They returned to the jail in five or ten minutes without
success. Macaluso thenbegan writing an occurrence report about the
incident and soon thereafter Mr. Kerr reported he had found the key in the press.
Key control log entries were adduced into evidence. Pages entitled
"Front Door #1 Log" had entries for Sunday 28 at 6:50 and 7:00, noting
"Adams on change over" and "R,el Mr. Adams + key (6). Keys in lock-up
All in Order." These entries appeared to be initialed by Mr. Kerr.
'Pages entitled "Front Door #2 Log" had two entries at 6:50 and 6:54,
which read, respectively: "Acc'd Mr. Adams on count and insp" and
"Relieved Mr. Adams." It is not clear who made these entries. Another
,key control, sheet entitled "App G" was also introduced. Three important
entries were included in this sheet. They read:
KEY CONTROL
ISSUE OF KEYS RETURN OF KEYS
Time Issued by- Received by- Tim
Date
Returned by- Received by-
Key N~nber(s) Issued Signature Signature Returned Sign&ire Signature
Auq 27/V' 49 2300 ~G.Macaluso P.Jarvis 0645 P.Jarvis H.B.Adams
II 2 knives 2300 G.Macaluso P.Jarvis 0645 P.Jarvis H.B.Adams
11 9 2300 G.Macaluso P.Jarvis 0645 P.Jarvis H.B.Adams
.
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fin each case the time of 0645 and Mr. Adams'.signature are in blue ink,
while Mr. Jarvis’ signature for each entry is in grey ink: These entries
indicate that Jarvis had two knives, key 49 and key 9 issued to hjm by
Macaluso and that he returned them to the press through Mr. Adams. For
Mr. Adams to return them to the press, he would have had to be in possession'.
of key #l.
The last key control document is entitled "Shift Change - Over
Certificate" and it notes that Mr. Kerr relieved Mr. Adams at front door
#l area and that the front door #l keys:.wqre handed over. This document
(Exhibit 15)~ bears the signatures of Mr. Adams and Mr. Kerr..
Mr. Macaluso wrote a report describing the incident. It is dated
August 27, 1977 and reads:
Missiny Nurses' Key
On Saturday, August 27th‘ 1977 (23:OO to 07:OO hours shift) I
was in Charge of Front Door #1 and #2. At approximately 03:25
hours I received a call from the third landing officer
requesting medication for inmate Gyorgy whom apparently
was experiencing difficulty in breathing. I iEediately infc+ned
~1. Regan of the situation. The key box was then opened
and key #63 was taken by Mr. Regan. I then locked the ._
box and followed Mr. Regan into the Nurses' Station.
While he was obtaining the necessary medication I took
time to weigh myself. It was a,t this point in time
or. Regm informed~me that he had placed the key on
the nurses' table and also to leave the nurses' door
open until he returned. I then followed Nr. Regan out
of the nurses' office and let him into the institution
proper. As Mr. Regan was let into the institution
proper, Mr. Jarvis came Out. I then gave Mr. Jarvis
both Front Door keys, informzd him that Messrs. Bowen
and Adams were on outside patrol and proceeded t0 the
Female Unit with the clock. On my return to the Front
Door #l area I saw, standing in the visiting area,
Messrs. Bowen, Adams, and the pizza man. I then reached
in my pocket, pulled out $6.00 (in bills) and paid for
the pizza. While in, the outside visiting z-ea, I informed
MT. Sowen of inmate Gyorgy's condition and that Mr. Regan
was resp6nding with the necessary medication. I then
carried the pizzas into the back office followed by
&ssrs. Bowen and Jarvis. Shortly afterwards Mr. Adams
followed us in and informed MT. ~owen that.iie had logged
inmate's cyorgy's medication in the nurses'log. Ni- .
Regan arrived shortly aftetiards and we (E~SSKS. Adam,
Bowen, Regan, Jarvis, and myself) began to eat our pizza.
Mr. Jarvis handed back both sets of Fxtint Door $1 md #2
keys and beg+ his next set of clock rounds.
At approximately 06:lO hours Id?. Bowen asked
Mr. Adam if the nurses' key was on his person. Mr. Adam
replied, "Yes.", and then said, “No, Mr. Regan has it.".
mments later or. Regan informed Mr. Bowen that he did not
have the key. & said he had left it on the nurses' desk
for ne (Hr. Macaluso) to pick up. At ~this time I
couldn't renember if I had picked up the key or left it
on the nurses' desk or if I had placed it in my pocket'or
if I had given it to the pizza man via the folded $6.00
(bills) or placed it back in the key box. We (Messrs.
Bowen, Reoan, ad myself) opened the key box and searched
thoroughly. There was no sign of key',Y63. We then took
the other nurses' key, shut the key box, and proceeded to
the Nurses' Station. After checking $11 areas no key was
found. We then went back'to the key box, opened it, placed
the other nurses' key back, and arain checked closely. The
key box was then shut. Mr. ~owen then ordered for everyone
to empty their pockets. Elessrs. Regan, Mailloux, Jarvis,
Chznady, and myself complied with the order, NT. Adams
refused stating that he didn't have the key. I then hznded
or. Adams both Front DOOX #l and ;2 keys and began (with
the ai<~qr +-.,R~eg+$ sifting through the garbage bags- The key was not found in garbage;' I then'sugg&sted to
Mr. Bowen that when I paid for the pizza perhaps the key
was folded inside the money. At approximately 06:53
hours Mr. Regan and myself obtained permission from
Mr. Bowen to call on the pizza iian (a personal friend of
mine). We then left the institution for the pizza man's
house. Approximately five minutes later we returned to
the institution and I, entered the back office to inform
~Mr. BOWen and Mr. King that the key was not at the pizza
man's house; I then proceeded to write a report. At
this particular point in tixe Mr. Kerr whom hzd relieved
MI-. Adax of Front Door #l keys reported he had found
the missing key in the key box hanging in its place.
We were then relieved of duty and allowed to go home.
I must stress that the key box was closed between 03:30
and 06:lO hours.
Respectfully submitted,
-
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i- Macaluso testified that when the medical room's door is left open,
the light from this room can be seen from both front door #l and #2
positions. Macaluso denied that the person who delivered the pizzas
gave the key back to him when approached later in the shift or that he
(Macaluso) had the key in his possession at any time after 3:30 a.m.
He also advised.the Board that he received a written warning over the
incident.
Mr. G. L. Regan, an employee with.twenty months of seniority,
confirmed that Macaluso let him into the medical room at 3:30 a.m.;
that Macaluso weighed himself; and that he told Macaluso not to lock the
door. He said it took him three or four minutes to take the medication.
to the inmate and that on his return downstairs he saw the man deliver-
ing the pizza to Macaluso and Adams. Although he had to wait, he cannot
remember who let him into the central area. However .he returned the
medication to the medical room and does not remember seeing Mr. Adams
in the vicinity of that room at the time. On leaving~that room, he locked
it. After eating the pizza, he remained in the shift supervisor's office,
completing paper work. At 5:45 a.m., he said he went to see a training
correctional officer and at about 6:lO a.m. Mr. Adams came to him and
asked if he had the key to the medical room. Regan advised Adams he
gave it to Macaluso. When he got back to the front area, Adams told him
the key was lost and he was asked by Bow,enl-to empty his pockets. Regan
testified he heard Macaluso ask Adams to empty his pockets too and
Adams refused, saying he did not have the key. Reganconfirmed that
he, Eowen, and Macaluso searched the key press three times; that they.
searched the medical room; and that he and Macaluso went through the
garbage. He also confirmed that Macaluso gave front door key sets #l and
#2 to Adams at about 6:20 a.m. before searching the garbage; and that he
,: and Macaluso went out of the institution to the delivery man's home.
Mr. Jarvis has been employed as a correctional officer for.five and
one-half months. He said he was told the key was lost at about 6:00 a.m.
and participated in the search. He identified copies of a key log sheet.
(Exhibit 12 and 14 - the original of this sheet is Exhibit 28) and
confirmed that he returned key 49 and two knives to Mr. Adams at 6:45 a.m.
as recorded. He said Adams had the key to open the key press at that time
and that he saw him open the key press to return the items.
Mr. Kerr has been employed as a correctional officer for four years.
He said when he arrived for the 0700 to 1500 hours shift at 6:25 a.m. Mr.
Adams was "on the door" and Mr. Macaluso was bent over the garbage. Macaluso
told him the key was miss'ing and he could see others looking for-it. His
post was to be front door #l and he was to be responsible for the key press.
He came early for any possible briefing by the shift supervisor and, on
arriving at the jail, went immediately into the staff kitchen. After being
in the kitchen, he said he went to the front door area to assume his shift
responsibilities and~Adams was sitting at the,desk in front door #l area.
Kerr says he handed over the change-over sheet and Adams reminded him that
Key 63 should be marked as missing. He revised the sheet to that effect;
the keys were exchanged; and he and Adams signed the sheet. His first duty
was to check the key press box and on doing this he noticed Key 63 lying
in the key press box at the right hand side. He said he could not see how .~
anyone could have missed seeing it. He said he did not recall calling Adams
back at 7:00 a.m. and asking him to sign in key 49 and two knives, a denial
the significance of which will be understood after reviewing Adams' evidence.
During the course of the hearing some confusion developed over the
existence of a small hole in the key press box where a lock had been and
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whether this hole was large enough for key 63 to have been returned without
opening the box. Mr. A. Johnson, Assistant Superintendent of the jail,
.
testified that the hole was covered with surgical tape from both the
inside and outside and that the hole is l/8" smaller than the ring on
key 63. This ring has been on the key throughout the period of its use.
Mr. Boles, an employee and union official, testified that he was able to
put key 62, which is also on a -ring, thro.ugh.the hole. However, he
acknowledged that the ring on key 62 is the size of a quarter, whereas
the ring on key 63 is the size of a fifty cent piece.
Mr. Adams testified on his own behalf. He began work with the
Ministry July 1974. He had been involved in security work in the private
sector for atleast ten years prior to this and was an assistant manager
.'::y ~.
for Pinkerton's with whom he worked for ten years. He said his duties
during the shift in question primarily involved outside patrol. He
..testified that he did not go near the medical room during the shift. Adams
said that when the pizza arrived he was outside the institution with Bowen.
According to him, they followed two delivery men into the jail. Macaluso
handed the folded money to one of them and asked if he wanted to count i.t.
The man said"No, they trusted him." Macaluso let them out; locked the
jail's outside door; and carried the pizza to the shift supervisor's
office. He said, Bowen, and himself followed and Regan;&as behind them.
He said he went nowhere else. At 6:15 a.m. Macaluso came out of the office
'and asked him if he had the key and to go through his pockets. Adams said
he told Macaluso that he did not have the key and that, after Macaluso
had left him,,he went to the desk area and emptied his pockets. But he
said no one saw him do this.
He testified that Macaluso gave him frontdoor key set #2 to let
staff into the jail while Macaluso searched the garbage. He denied being
given set #l and denied going near the key press during the remainder
of the shift. He said Mr. Ed. Brean took over front door #2 position .c
from him and that he (Adams) did "the count" on his mown initiative.
He testified that Kerrsaid he had heard key 63 was missing and that
it should be put dotin. . Shortly‘after, Kerr found the key and Adams
told him to tell the shift supervisor. Adams then went into the staff
room and Kerr, he said, recalled him to point out two entries that had
note been signed in. Key 49 and the two jack knives, all returned by
Jarvis, were the entries and each had the time 6:45 a.m. Adams said he
signed the log sheet in both places and added that he signed for key #9
as well. He then went home.
On cross-examination, he denied refusing to empty his pockets.
He denied opening the key press at 6:45 a.m. to put in articles received .~
from Jarvis. He denied giving Kerr the front door #l key set. He
said he signed the sheet acknowledging such a transfer only as "an
expediency". He did not know where Kerr got the key set from.
In support of the grievor's testimony, the Union requested leave -.
to introduce the results of a polygraph or "lie detector" test that the
griever had submitted to following his dismissal. The employer objected
t0 the admissibility of such evidence. The Board requested argument
on the issue of admissibility and both parties retained legal counsel
for this purpose. Unfortunately, while the submissions of counsel
constituted a thorough canvassing of the legal authorities, at the
time of argument no expert testimony was introduced to assist the
Board in appreciating the general nature of and limitations associated
with polygraph testing. The Board therefore decided to reserve its
decision on the admissibility of such evidence and to hear the evidence
the 9rievor wished to adduce, together with any rebuttal except
evidence the employer might call. It was hoped that the
Board would be better able to rule on the issue before it by actually
reviewing the polygraph evidence the Union wished to adduce, in the light
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of cross-examination and rebuttal "expert' testimony.
Mr. John Jurens,~ Director of~Trans-World Private Investigators Ltd. .~
and a polygraph operator since 1956,was called by the union to give evidence
about a polygraph test he administered to the grievor on December 29. 1977.
Mr. Jurens claimed to have conducted 15,000 tests for a wide array of clients
including a number of Ontario police departments, the Ontario Ombudsman's,
-.I~Office, and the'clark Institute of Psychiatry. He said he has been in
,~error only twice. The only evidence of his qualifications was ,his testi- .
mony that~he had taken a course at the Keeler Polygraph Institute together
~with a number of refresher courses at Delta College, University Center,
Michigan and that he was a member of the American Polygraph Institute.
Apparently, the Keeler Polygraph Institute course is six weeks in length., ..~
and Mr. Jurens took it in 1956. No evidence of the curriculum of this
course or its professional standing was introduced and a similar absence
of evidence applies to the refresher courses which were a week in length,
and the requirements for membership of the American Polygraph Institute.
-Mr. Jurens formal education consists of Grade 12. He would not appear
to have taken any courses in the fields of physiology, sociology or
psychology related to his'occupation at any recognized university or
community college in Ontario or elsewhere.
He testified that before administering the test he understood the
controversy to relate to a missing key. The grievor came to his office
on December 29, 1977 with Mr. Nabi, the.Union representative. He said
a pre-test interview was conducted with Mr. Nabi present, but the Board
was given none of the details of this interview, except that it related
to the incident and the questions that would be asked during the actual
test. He said the purpose of the griever's attendance at his office
.was to substantiate the statement that Mr. Adams did not take key #63 bet-
ween 6:00 a.m. and 6:45 a.m., August 28, 1977. Mr:Jurens understood that a key 63
- 17 -~
could not be located during this period of time; that it was returned at
approximately 6:45 a.m.; and.that it was assumed Mr. Adams was responsible
for the delay in finding the key. Mr. Jurens said four polygraph tests were ~ _'
administered to the grievor and on the basis of these tests Mr. Jurens testi-
fied that it was his opinion that Mr. Adams did not place the key in the
key press between the hours stated in his report. The graphs depicting the
tests were introduced,as well as the following report reproduced in part:
. . .
TRANS-WORLD PRIVATE INVESTIGATORS LTD.
Associated Agents in~Most Principal Cities cf~ the World
(Government Licensed & Bonded)
Polygraphic Truth Test
25 Years Investigative Experience (Lie Detector)
(416) 489-6200
181 Eglinton Avenue East -- Suite 306 -- Toronto 12, Ontario
December 29, 1977
Ontario Public ServiCe Employees Union
1901 yonge street
Toronto, Ontario
M4S 225
Attn: Richard Nabi
Grievance Officer
Re: Harry B. Adams
Polygraph Examination
Dear Sir.-
On December 29, 1977 at approximately 2:30 P.M. the d&tie
mentioned Harry Adams, accompanied by yourself, arrived at my
Office for the purp0%? Of sUbsta&isting Mr. Adams' statement
that he/Mr. Adams) did not take key number 63 between thehours
of 6:lO A.M. and 6:45 A.M. on August 28, 1977 and place it in
the key press.
The crux of the matter in question is that on August~28, 1977
between the hours of 6:lo A.M. and 6:45 A.M. key number 63
could not be located however it was returned to the key press
at appmximstely 6:45 A.M. and it is assumed Mr. Adams was
responsible foi- the delayed return of said key.
- 18 -
During the pre examination interview Mr. Adams was cooperative
and answered all questions asked of him in the presence of Mr.
Nabi. Mr. Adams was given a total Of iour Polygraph examinatio&.'~
CONCLUSION: After careful analysis of the Polygraph charts it is
the opinion of the examiner that Mr. Adams did not place key
number 63 in the key press on August 28, 1977 between the
hours stated in this report.
Yours truly
J. Jurens
- Member -
AMERICAN POLYGRAPH ASSOCIATION
PSYCHOMGICAL STRESS EVALVATOIP;
I
I
R
I
R
R
C
C
R
CONFIDENTIAL REPORT
MRONTO, ONTARIO
Date December 29, 1977
Reporting: Polygraph EXaminatiOn
Subject Harry B. Adams
The following questions were-asked of Harry B. Adams during
the course of his Polygraph examination:
1.
2.
3.
4.
5.
7.
10.
13.
15.
17.
Are you in Ontario now? Ye*
Is your last name Adam? Yes
Do you know for sure who put the missing key number
63 into the key press on August 28, 1977? no
Do you drive a car? Ye*
Did you replace key number 63 into the key press on
August 28, 1977? no
Did you handle key number 63 at anytime on August 28,
1977? no
In the past ten years have you ever told a lie? yes
Have you told me the truth during the Polygraph examina-
tion? Ye*
LB you suspect anyone of returning key nun&er 63 to the
key press? Ye*
Were you in colusion with anyone to hide key number 63 on
August 28, 1977? no
- 19 -
The letter "I" beside some of the numbered questions apparently'
stands for "irrelevant"; the letter "R" denotes "relevant"; and,the
letter "C" stands for "control". “Yes!’ or “No’! marked beside each
question was the grievor's response as recorded by Mr. Jurens.
Each of the four polygraph tests consisted of these same questions.and
the entire procedure took approximately twenty minutes.
In response to this evidence, the employer called Dr. Harry K.
Hutchison,~ He is an Executive Director in the Ministry of Correctional
Services. He was the chief psychologist for the.~Ministry of Health in
Toronto and from 1957 to 1965 performed "polygraph services" for the
Ontario Government. His principal client would appear to have been
the Ontario Provincial Police. Dr. Hutchison has a Ph.D. in psychology.
He took a year long correspondence course in relation to polygraph testing
conducted by Clive Backster and Associates of New York and a ten day
course given in Florida by Scientific Lie Detection Inc. He is also a
former member of the American Academy of Polygraphers,. He stated that
he has testified with regard to administered polygraph tests in various
legal proceedings and has been qualified as an expert in such matters.
He has published articles on the subject in 'a number of respected academic
and professional journals in Canada.
Dr. Hutchison testified that the polygraph test is based on
stress reactions reflected by a person's heart rate, and certain measure-
ments of the volume of blood in the limbs to which the polygraph machine
- 20 -
may be attached. He said the heart rate and changes in blood volume are
primarily determined by a hollow rubber tube put around the.subject's
chest which records breathing. Electra-dermal responses in the
hands in response to stress, a phenomenon known as."the galvanic skin
response", is also measured by then polygraph machine. H.e said~the
polygraph "technique" is a "totality of things" and begins when the
subject arrives at the testing location. He said it was necessary
to cause the subject to have confidence in the machine in the sense
that-he believed the machine-can detect lying. Or. Hutchison testi-
fied that two or t&ee tests are usually conducted and that a
"clinical judgment" is then formed on the basis of the measured
responses of the subject. He said the tests are often used as
investigative aides, but said that in his opinion they should not
be considered as evidence of the truth. He explained that the tests
could be affected by the subject's lack of co-operaton; by controlled
breathing ;or by muscle contractions. He also explained that some
people simply do not respond to stress and that other abnormalities
can affect the results as well. He said that the crux of the test
is whether the response to a "known lie" is greater, as recorded by
the polygraph machine, than the response recorded to a "relevant
question.' Dr. Hutchison reviewed the questions asked the grievor
by Mr. Jurens and testified that the questions marked as "control"
.. questions were not really control questions-and that, in any event,
they should have been asked before the "relevant" questions were put
to him. Dr. Hutchison testified that, in his opinion, there was no
question put to the grievor that would.provoke a "known lie". The
Union did not cross-examine Dr. Hutchison to any degree and did not
- 21 -
recall Mr. Jurens to rebut any of Dr. Hutchison's testimony.
The issue of whether this Board s~hould admit evidence of polygraph
tests is one of considerable importance and one that is presented for
the first time in this case. The Union knew this to be so and should
have been much more circumspect in adducing this evidence and in
attempting to qualify.Mr. Jurens as an expert witness.
It is our ruling that the Union failed,by the questions asked,
either to qualify Mr. Jurens as an "expert" in polygraph testing or
to satisfy this Board that the tests were properly administered.
There is insufficient evidence about his academic background and formal
training; about his standing in the conmiunity; and about his familiar-
ization with the academic disciplines that Dr. Hutchison testified were crucial.
Moreover,the responses that Mr. Jurens gave to the questions that
were asked did not fill this Board with any confidence in him.
His unqualified statement that in 15,000 tests he had been wrong only
twice smacked of hyperbole and lacked the accompanying clinical
caveats that one would expect a knowledgeable person in the field
to add. And based on Dr. Hutchison's testimony, we are not satis-
fied that the four tests were properly administered to the grievor.
Because-the issue of admissibility of polygraph tests centers
on the.inherent reliability of such tests, a party seeking to adduce
such evidence must be exceptionally careful to establish first that
the test was properly administered by a qualified person. In this
case the Union failed to meet this minimum standard of presentation.
Mr. JurensYevidence is therefore to be ignored.
As a result of this ruling, the related issues of whether someone
can be properly qualified as an expert in polygraph testing and whether
this Board should admit the evidence of someone found to be "expert" in
such matters remain open. However, we are prepared to make a number
of observations, given the amount of hearing time consumed by this
issue and the very helpful efforts of legal counsel when they were .,.
present. First, while Dr. Hutchison's evidence was not nearly as
full as we would have liked, we are satisfied that he is qualified
to give "expert" testimony on polygraph testing if such testimony
is otherwise admissible. While these two issues (the qualifications
of the "expert".and the admissibility of his testimony) are very
much related, we wish to emphasize to the parties that even in
those areas-where expert testimony is well recognized, it must be
established that the person brought forward to give the evidence
is competent to do so.
This brings us to the next issue of whether evidence of polygraph
tests should ever be admitted, even through the mouth of a witness
apparently qualified to testify to such matters. Counsel for both
parties drew the Board's attention to a very recent decision of the
Supreme Court of Canada upholding a trial court's refusal to admit
such evidence and to a number of labour arbitration awards with
outcomes on both sides of this issue of admissibility. In Resina
Y Phillion (1977), 33 C.C.C. (za) 535 an appeal was entertained by
the Supreme Court of Canada on the following question of law:
Did the Ontario Court of Appeal
err in holding that the trial
judge did not err in refusing,
especially on the peculiar
circumstances, to permit the
polyqraph expert to testify
about the operation of the
polygraph machine and to give
his opinion as to the accused's
veracity when he confessed to
the murder,
- 23 - ' '. --
In that case the appellant had given a statement to police admitting
his involvement in a murder and at trial elected to give no evidence.
Instead, three witnesses were called for the defense, including a
psychiatrist and a psychologist whose evidence was directed to show-
ing that the appellant had a deranged personality and was likely to
attest to events which never happened. The third witness, John
Edward Reed, an authority on polygraph tests, had administered such
tests to the appellant and, on the basis of these tests, was of the
opinion that the appellant had lied to the police.
The trial judge was satisfied that the polygraph examiner was
skilled and that the tests were properly given. However, she ruled
that the test did not satisfy the requirements of expert evidence
"because of the weight that is put on it and because of the various
factors which introduce variables" which affect the test's reliability.
The judge was also of the opinon that the evidence's admissibility
would, in any event, require that a meticulously accurate verbatim
account of the whole conversation with the subject be kept and that
the opposing party be present at the testing location. However,
the psychiatrist who testified also relied on Mr. Reed's polygraph
tests as well as on two psychiatric interviews which he had personally
conducted with the appellant and in one of which the appellant had
been given some sodium amytol, sometimes loosely referred to as a
"truth" drug. The trial judge allowed the psychiatrist, who was also
.called to testify to the veracity of the accused and &too was-of
the opinion that he had lied to the police, to give the basis of his
opinion. The Supreme Court of Canada appears to have confirmed both
rulings.
As for the psychiatrist's testimony, Mr.Justice Richie wrote:
- 24 -
Statements made to psychiatrists and psychologists
are sotitimes admitted in criminal cases and when
this is so it is because they have qualified as
experts in diagnosing the behavioural symptoms of
individuals and have formed an opinion which the
trials Judge deems to be relevant to the case, but
the statements on which such opinions are based
are not admissible in proof of their truth but
rather as indicating the basis upon which the
medical opinion was formed in accordance with :~~
recognized professional procedures.
However, Mr. Justice Richie, with whom a majority.of:the ,Court
concurred, ruled that entirely different considerations applied to
the evidence of Mr. Reed because he was neither a psychiatrist nor
a psychologist and did not appear to have had any other medical training
Dealing with Mr. Reed's testimony, he wrote:
The polygraph evidence which was sought to be
introduced is accurately recorded in the judgment
of the Court of Appeal as follows i2b C.C.C.(2d)l91
at p. 192,53 D.L.R. (3d) 319 at p. 320, 5 O.R./Zd)
656):
"Q.Mr. Reid, on the basis of your experience and
the recordings that you made of Mr. Phillion,
during the course of the polygraph test, did you
form an opinion as to whether he was telling the
truth when he answered no to the relevant questions?
"A-I am of the opinion that he is telling the-truth
when he answered no to the relevant questions."
Among the relevant questions were the following:
"Did you stab Leopold Roy on August 9th, 1967?
"Did you kill Leopold Roy on August 9th, 19672"
In my view, Mr. Reid had neither the qualifications nor
the opportunity to form a mature opinion of the propensity
of the men he was subjecting to the test either as to
truthfulness or otherwise. h'is opinion, however, was not
based on the statemeRts made by the appellknt, but on his
own expertise in interpreting the recordings of the machine.
If the statements had been made to Mr. Reid alone, there is
in my opinion no doubt that they would have been inadmissible
as self-serving, second-hand evidence tendered in proof of
its truth on behalf of an accused who did not see fit to
testify and I am not prepared to hold on the evidence of
this case that the presence of the polygraph machine or
the expertise of its operator made them admissible. The
admission of such evidence would mean that any accused
person who had made a confess;on could elect not to deny
its truth under oath and substitute for his own evidence
the results produced by a mechanical device in the~hands of
a skilled operator relying exclusively on its efficacy as a
test of veracity.
The elementary right'.of an accused not to give evidence is
in no way at issue here, but that right having been exercised, ..'
it appears to iir to run contary to the basic rules of evidence.
to permit the substitution of the opinion of a polyyraph technician
foor the evidence which could have been given by the appellant
himself. I do not consider that this view conflicts in any way
with that expressed by Gale, C.J.O., in R. v Dietrich, (19701,
1 C.C.C. (2d) 49 at p. 65 i1970) 3 O.R. 725, 11 C.R.N.S. 22,
but if I thought otherwise I would have to say, with-great
respect, that that case, was to that extent, wrongly decided.
For these reasons alone I am satisfied that the learned
trial Judgedias correct in excluding the results of the
pOlyqraph test.
He then went on to make the following observations:
I should not leave this matter, however, without indicating
that I have had an opportunity to read a great ixny American
authorities on the subject of the reliability and, hence, the
admissibility of such aswers given in the course of polygraph
ssaminations. I find that in the vast majority of cases the
Azrican Courts have excluded this type of evidence except .'
in cases where both parties to the proceeding have stipulated ~'
that they are prepared to have the an.swers accepted.
There can be no doubt that improved polygraph techniques
have been developed over the years, but this does not appear
to have altered the attitude of the Anxzrican Courts. I cite
in this regard the case of State Y. Bowen (i969), 449 P.
2d 603, a decision of the Supreme Court of Arizona, in banco,
where the then current position with respect to polyyraph
evidence wzs characterized at p. GO6 in the following terms:
There is no question but that evidence of, or reference to,
a polygraph test is inadmissible for any reason. All authorities
are in accord. Schmerber v. California, 384 U.S. 757, 36 S.Ct.
1826, 16 L.Ed 2d 908 (1966); State v. KcGee, 91 Ariz. 101,370
P. 2d 261 (1962).
The present attitude of the American Courts towards the
acceptance of polygraph evidence is discussed in,the following
passage from the evidence of Mr. Reid:
Nell, it has been' admitted,a number of times
over the objection of~opposinq counsel, but not d
great number of times. Now, I have.had the ex-
perience of possibly three different cases where
it was admitted over the objection of opposing
counsel, but most times it is done under stip-
ulation by both sides.
And he later said:
I:'ell, it appears that the attitude of the Courts
of our country is greatly changing. True, up
until the present time it was hardly even con-
sidered by stipulation. I don't knox what
nurher of cases it is accepted at the present
time under stipulation, it might be five or six.
These are the op.in$on expressed by a polygraph examiner from the
United States with 32% years' experience who was presented to the
Court as a definitive authority on the operation of the polygraph
machine and its reliability and acceptability.
In the comparative recent case of United States v. Ridling,
(13721, 350 F. Supp. 90, Mr. Justice Joiner, District Judge of
the U.S. District Court, Michigan, wrote a lengthy opinion in
which he finally concluded that polygraph &idence should be
admitted es an exception to the hearsay rule. In the course Of
rendering these reasons,. the learned Judge said at p. 93:
"Judicial opinions pertaining to the admission of polygraph +q.
testimony seem all to point toward exclusion",~..qd he proceeds
to cite 17 cases in support of this statement. Finally, Mr.
Justice Joiner deals with the hearsay rule in connection with
this kind of evidence and says of the polygraph expert there
called Cp. 99):
In another sense, he must report to the jury
the statements made by the subject so as to make
his opinion relevant to the issue in the case, and
as a result of his expertise end the tests conducted
he must indicate his opinion of the truthfulness of
the statement. In this sense the statenents sup-
ported by the opinion of the expert appear to be
hearsay but~since the very purpose of the test is to ~~
determine truthfulness, the evidence should be admit-
ted es an exception to the hearsay rule because of
its high degree of trustworthiness...
No such exception to the hearsay rule exists in this country and
notwithstanding the fact that I have had the benefit of reading
the exhaustive reasons for judgment delivered by Mr. Justice
Meredith in the case of R., v. Wmg (NO. Z), ante, p.511,
<1977> 1 W.W.R. 1 sub nom. R. Y. Won9. I am nev?&tbeless unable
to agree with the view that polygraph evidence should be admit-
ted. As I am satisfied in the present case that the learned
trial Judge was not in error in refusing to allow the polygraph
expert to give his opinion es to the accused's veracity, it
follows that his evidence about the operation of the machine
is irrelevant, and was also properly excluded.
For all these reasons I would dismiss thisappeal.
Counsel for the Union submitted that the Court's decision was
influenced by the fact that the appellant had declined to testify at
trial and that in the case before the Board the grievor would be
giving evidence.. But unlike the judgment of Mr. Justice Spence which
was explicitly confined to,,this peculiar circumstance of the Phillion
case, the last quotation reproduced from the majority opinion is,,:
very general and very broad.
The arbitration'cases to which ourattention was drawn do not
seem to point conclusively in any one direction, although the weight
of these decisions seems to be against the Union's position. Those cases where
polygraph evidence has not been admitted or where a refusal to take a
test was ignored have relied on the judicial precedents referred to
by Mr. Justice Richie; -tlPe-~inherent unreliability ofthe test; the tester's
lack of qualifications; land, as well, a concern for an employee's "rights
of privacy". See grocers supply co. (1972), 59 u 1280 (Taylor); .~
American Maize-Products Co. (1971), 56 LA 421 (Larkin); American Maize-
,~Products Co. (1965), 45 LA 1155 (Epstein); Spiegel Inc. (1965), 44 LA
405 (Senixwer); Safeway Inwood Service Station. In those cases where
such evidence has been admitted, the arbitrators have emphasized that
polygraph evidence is no different from any other kind of scientific
evidence; that constitutional principles against self incrimination are
not applicable; and that an employee's interest in privacy must be
balanced against other legitimate employer interests. See lawman
Transporation Inc. (1973), 61 LA 549 (Laughlin): Bowman TransprtatiOn .:-. .:~
Inc. (1975). 64 LA 453 (lion).
The crown Employees Collective Bargaining Act S.O. 1972 c.67,
as amended;=. ~(2) gives this Board the power "to accept or exclude
any oral testimony, document or other thing" and it is this flexibility
of procedure on which the Union appears to be relying in asking us to
admit Mr. Juren's evidence. However, we note that a similarly worded
provision in another collective bargaining statute has been interpreted
by the Ontario Court of Appeal to permit a board of arbitration to
admit evidence not properly admissible in a court of law, but not to
.
- 28 -
empower it to act on irrelevant evidence or evidence lacking cogency -
in law. See R v Barber, Export Warehousemen's and Misc. Drivers'
Union (1968), 68 D.L.R. (2d) 682 (Ont C.A.). While no argument by
counsel was addressed to this point, it is observed that Mr. Justice
Richie's opinion speaks in terms of both admissibility and relevance.
If this kind of evidence is sought.to be adduced in a future case,
this application of the steinbergs case to polygraph evidence will
have to be addressed.
. : -.
But overlooking this point for the moment, it can be argued
that as a matter of industrial relations policy the evidence ought
never to be admitted whether on behalf of an employee or against him.
The basis of this position couples the unreliability of the tests
with the current abuses of the tests reported in the literature.
see generally: Skolnitik, Scientific Theory and Scientific Evidence?
An Analysis of Lie Detection (1961)‘ 70 Yale L.J. 694; Levitt,
Scientific Evaluation of the tie Detector" (1955), 40 volume L.
Rev. 440; Coghill; The Lie Detector in Employment, New York State
School of Industrial and Labor Relations, Key Issues Series - No. 2
(1968); Burkey, Lie Detectors in Labor Relations, (1964), 19 Arb.
5.193; Burkey~, Privacy, Property and the Polygraph (1967), 18 Lab.
L.J. 79; Herman, Privacy, The Prospective Employee, and Employment
Testing; The Need to Restrict Polygraph and Personality Testing
119711 I 47 Wash. L.Rev.73; Note, tie Detectors in The Employnzent
- 29 -
context, (1975), 35 Louisiana L.Rev. 694; Cement, Privacy The Polygraph
in Employment (1976), 30 Ark. L.Rev.35. But see: e Lie Detection
and Criminal Investigation (1948); Reid and Inbau, Truth and Deception;
The Polygraph (Lie Detection) Technique (1966). The literature
reveals the widespread use of the tests in the United States, in
employment interviews and as investigating aids, and that many if not
most of the people administering these tests are unqualified. The actions
taken by employers on the basis of these poorly administered tests can
have a devastating impact on employees and the job opportunities of -*'
prospective employees. The arbitration decisions also reveal a great deal.
of controversy over the related issue of whether an employee can be
disciplined for refusing to take a test and whether an inference of guilt
arises from such a refusal. While many of the reported abuses, particularly
those relating to prospective employees, cannot be controlled by the
arbitration process, a blanket refusal to admit such evidence would not,
at least, encourage the use of the polygraph tests and, would at the same
time, convey the likely disposition of any contested discipline centerjng
solely on an employee's refusal to take the test. We also have concern for
the somewhat one-sided way in which polygraph evidence has~been introduced
into the arbitration process where it has been admitted. A review of
these cases shows that when the tests corroborate the employees claim of
innocence they are given some weight but when this is not the case, the
arbitrators appear to emphasize the unreliability of the ,tests and they
are accorded .little weight if any. The reasoning seems to be based on
the notion that an error in testing is more likely to ensnare the innocent
person who has reacted emotionally to the test setting. But this assumption
does not appear to be well documented in any scientific ~sense. Moreover,
there is some inconsistency in permitting an employer to discipline an
- 30 -
employee who refuses to take the test and, at the same time, refusing to
uphold the discipline of an employee who has failed to pass a polygraph test.
Finally, no matter what the practice in private industry is or should be
with respect to these tests, we have grave concerns about approving the
use of the polygraph technique in the public sector. Many jurisdictions
in the United States have made the use of polygraph tests in employment
relations unlawful and other jurisdictions in that country have passed
licencing statutes to at least provide some measure of regulation. The
existence of these laws in jurisdictions that have had a substantial
experience with polygraph tests suggests to this Board that a concern for
their inherent unreliability and potential abuse is well founded. It is
therefore questionable whether the public sector ought to be the "beacon
light" in introducing this technique into Canadian labour relations. For
all of these reasons, it is unlikely that we would have admitted the evidence
even if it had been properly brought before us.
However, before reviewing the evidence that can properly be relied
upon, it is necessary to determine a fundamental preliminary matter raised
by the Union after both parties had closed their cases. The Union argued
that by virtue of the public Service Act R.S.O. 1970 C. 386, as amended,
s.23 a person other than a deputy minister is empowered to dismiss a
public servant only where that person is himself a public servant in the
same ministry and where the deputy minister of that ministry has delegated
the power of dismissal to him in writing and with the written consent of
his minister to the delegation. The Union submitted that in the facts at
hand the grievor was dismissed by R. D. Phillipson who is not the deputy
minister of the ministryyand no evidence was adduced by the employer es-
- 31 -
.' tablishing a proper delegation of a deputy's dismissal power to Mr. Phillipson.
We note that there was no direct evidence as to Mr. Phillipson's status at all,
but the representative of the employer sought the leav,e of the Board to in-
troduce eviden~ce in this regard. However, the Union objected, arguing that
the employer had closed its,case and must therefore live with the defect. '. [.~
We have considered these submissions and rule that the Union has, by
its conduct, waived reliance on this argument or is now estopped from
adopting either this position or the other preliminary points it raised
about the procedure by which the grievor was dismissed. Therefore, there
is~ no need for the employer to seek to reopen its case with,respect to
Mr~. Phillipson's powers of dismissal or with respect to, any other matter..
Where, at the outset of a hearing, no objection is taken to the status or
powers of an official who has purported to dismiss a public servant, it
must be assumed that the parties have agreed that the official had the
proper status or effective powers to take the action he did. It seems to
'..*.
us that it is entirely too technical to require the parties ~to prove matters
over which there has been no controversy throughout the entire history
of the matter preceding its litigation before this Board. By not raising
its position with respect to Mr. Phillipson's powers of dismissal either
following the grievor's dismissal or at the outset of the case before this
Board, the Union caused the employer to believe that Mr. Phillipson's powers
of dismissal were not in issue and, in conducting its case accordingly, the.,
employer is now prejudiced. If the trade union really believed Mr.
Phillipson lacked the power he purported to exercise, it should have (and
likely would have) raised this ~position at least at the very beginning of
the hearing and thereby put the employer on notice. Having failed to do
so, the Union is now estopped from seizing upon an absence of evidence it
- 32 -
contributed to. We might also observe., if the Union's position was upheld, in
future cases it too would be required.to establish a myriad of preliminary
facts, despite the absence of controversy with respect to such matters. It
seems to us that this approach is too technical for the arbitration of
employment related matters between parties that have an ongoing relationship,
particularly when the governing statute stipulates that no proceeding under ._..
it should be "invalid by reason of any defect in form or any technical ir-
regularity.......". See The Crown Employees Collective Bargaining Act
S.O. 1972 as &ended, .+:.sO. See also: Re Blouiin Drywall Contractors Ltd.
and United Brotherhood of Carpenters and Joiners of America, Local 2486
(1975), 57 D.L.R. (3d) 199; Int'l Nickel Co. of Canada (1968) 19 L.A.C. 371
(Schiff)
This brings us to the determination of,whether~ the employer established
just cause for the grievor's dismissal. We have reviewed the evidence submitted
before us in detail above because of its circumstantial .nature and because of
the importance of the determination to the grievor. Some boards of arbitration
have held that where an employer's case is founded exclusively on circum-
stantial evidence, this evidence must be consistent with the employee’s guilt
and inconsistent with any other rational conclusion. The Union asked us tom
adopt this criminal law approach, but we cannot agree.
In discharge and discipline cases, the *to prove "just cause" is
on the employer. See Int'l Nickel co. of Canada Ltd. (19691, 20 L.A.C. 51.
From a policy point of view this is reasonable, considering that the employer
has command of the facts on which it discharged the employee. The question,
case is founded exclusively on circumstantial evidence the evidence must be
consistent with the employee's guilt and inconsistent with any other rational
conclusion. This standard has been applied in a number of arbitration cases.
See: Automatic Canteen CO. of Canada Ltd. (1963), 13 L.A.C. 446; Franklin
Mfq. Co. (Canada) Ltd. (1964), 15 L.A.C. 383; Re UMW District 50 and
Caldwell Linen Mills Ltd. (1960), 10 L.A.C. 356 (Little);.Re U.S.W. Local
3466 and Steep Rock Iron Mines.Ltd. (1961), 12 L.A.C. 148 (Anderson).
However, the civil standard or""balance of probabilities" test is the most
commonly used. Re Julius Resnick Canada Ltd:md Int'l Leather. Foods,.
Plastics and Novelty Workers Local 9 (1973), 3 L.A.C. (2dl 247 (Carter).
Re: UAW Local 347 and Kysor of Ridgetown Ltd.(1970), 22 L.A.C. 23 (Hinneqm)
Re ASS'R of Radio and Television Employees and C.B.C. (1968), 19 L.A.C.
295 (Christie); Re USW and Int'l Co. of Canada (1969), 20 L.A.C. 51 (Brown);
Re Air Canada and Int'l Association of Machinists and Aero~~pace Workers
(May 1978) not yet reported (Christie); Re Polymer Corp. Ltd. and Oil
and Atomic Workers Local 9-14 (19731, 4 L.A.C. (Zd) 148 (Palmr); Re
Hospital and Service Workers Union (1977), 16 L.A.C. (2d) 38 (Simmns).
But in applying this civil standard due regard must be given to the advice of
the Divisional Court in me Bernstein and College of Physicians and Surgeons
of mtario (1977), 15 OR (2d) 447, where it was recently pointed out that
there cannot be a precise formula for standards of proof and that the mere
words "balance of probabilities" or "beyond a reasonable doubt" are too
simplistic a guide to the evaluation of evidence. Instead, the Divisional
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however, is what kind of burden of proof is involved in these cases, particularly
when circumstantial evidence is to be used.
The criminal standard, or "the rule in Hodge's case" is that where the
- 34 -
Court stressed that admihistrative tribunals keep in mind the standards of
fairness-and reasonableness. (i.e. in that case at p. 471 the Court recom-
mended: "The evidence to establish the charge had to be of such quality
and quantity as to lead the Committee acting with care and caution to the
fair and reasonable conclusion that he was guilty of the charge".) Thus
while the BemStein decision approves a civil standard of proof, in applying
the standard it asks for sensitivity toward both the nature of the alleged
offense and the consequences of an adverse finding to the individual who is
accused of wrongdoing.
Applying this approach in the case at hand, we have come to the
conclusion that the grievor committed the acts alleged. The lynch pin to
this conclusion is the grievor's denial that he wasglven the front door
81 key set sometime around 6:20 a.m. Macaluso testified he gave the keys
to him and Jarvis, Regan, Bowen and Kerr all confirmed that the grievor
had the keys as Macaluso testified. All the records kept with respect to
the whereabouts of this set of keys also establish this.to be the case and
the grievor's signature is on two of these documents. We must therefore
find as a fact that he was in possession of the front door #l key set
between 6:20 a.m. and approximately 6:50 p.m. He therefore was the only
person with obvious access to the key press during that period. We find
on the evidence that a key could not be slipped into the press when the
press was c~losed and locked. As a result, we can see no rational reason
for the grievor denying that he had possession of these keys during the
material time in question'other than to conceal the fact that it was he
who returned key #63 to the key press.
Macaluso testified that at about 3:30 a.m. on August 28, 1977 the
grievor indicated that he had been in the medical room by noting that
Regan had not completed the medical log book. Jarvis did not testify
about this alleged comment. Regan could not recall seeing the grievor
near the medical room around that time, but the exact timing of Regan's
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return to the medica! room is unclear. The grievor had given medication
to.the same inmate the night before and had made an entry in the medical
log on that occasion. Regan's failure to make such an entry might have "
therefore been of interest to him. Coupled with this is the grievor's
refusal to empty his pockets when asked by Macaluso later in the shift and
his denial that he, possessed key set #l at any time. Taking all these
considerations into account, we find that the grievor had the opportunity
to take key 63 from the medical room at or about 3:30 a.m. if it was
located there and that it is more likely than not, that he did in fact
recover the key at or about that time. Based on the same considerations,
we also find as a fact that he put key 63 back into the key press sometime
between 6:20 a.m. and 6:50 a.m. when he was in possession of'key set #I.
This then brings us to a review of the penalty imposed by the employer
and a determination of whether it is excessive in the circumstances. Both
parties are in agreement that key control is an important aspect of.jail
security. However, the grievor's act of misconduct did not impinge upon the
security of the jail. Rather his actions were in the nature of a prank
which caused his fellow employees a great deal of anxiety and embarrassment.
His actions also disrupted the activity of the shift and inconvenienced
everyone involved, particularly for Mr. Macaluso. To these considerations
must be added the grievor's personal characteristics and his previous
employment record. The grievor began work on July 2, 1974. He is an older
man. He is married and has five children. Based on the annual employee
appraisals conducted by the employer the grievor's record of employment
. - 36'-
_ .- reveals two formal counsellings for various breaches of the regulations and
a number of commendations for good performance. As a general matter it .r
would appear that he has performed his work well.
Balancing.~all these considerations, we find that the penalty of discharge
is excessive and that the grievor is to be immediately reinstated without
.compensation but without loss of seniority for the period of his absence from
work.
Dated at Toronto, Ontario, this 10th. day of August, 1978.
G. W. Adams, Chairman
I concur
A. Fortier, Member
I concur
H. Simon, Member