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HomeMy WebLinkAbout1982-0284.Lindsay.82-12-10GRIEVANCE IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Lloyd Lindsay) Grievor -And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R. J. Roberts Vice Chairman S. J. Dunkley Member G. Peckham Member For the Grievor: C. G. Paliare Counsel Cameron, Brewin & Scott Barristers & Solicitors For the Employer: J. F. Benedict Manager, Staff Relations Dersonnel Branch Ministry of Correctional Services Hearings: July 21, 1982 July 22, 1982 August 20, 1982 September 21, 1982 October 26, 1982 -2- Th@ 'griev'or, who was ~a Probation and Parole Officer with the Ministry of Corrections lthe~ Employer), was discharged for assaulting a probationer. At the hearing, the Employer contended that discharge Was appropriate because the grievor coimnltted a deliberate and premeditated breach 'of trust 2n malting theeassault, and there were no mitigating circumstances' in the case. The Union- contended that there 'were mitigating circumstances, and in the light of those mitigating circumstances, the griever's prior excellent work record, and the grievor's excellent potential forrehabilitation, the Employer did not have cause to discharge. We agree. Weconcludethatunderordinary circumstances discharye VKIIJ&? have b&n appropriate; however, having regard to the peculiar cirwtances of this case 'we find 5ilC lesac:: discipline __~ ..__ --- ----- was in order. The:grit3ancc is allo+ed in par-t. Atthetimeoftheincidentinquestion,thegriewr~~oftwo Probation and Parole Officers working in&en Sound. Pecauseofthe small size of their office, the two officers generally managed wark loads imrolving clients who had kenconvictedof awide variety of offences: They.had a great deal of aukmmmy in their operation. W. R. I4arks,theirAreaK.snager,waslccated inGuelph. Generally, theextent of his supervision rant0 checkingwith the griever and his colleagues by telephone and vj_si:ting the' Owen' Sound. Office about once 'a month. The'grievor was regarded by his supervisors as an outstanding Probation and Parole Officer. Mr. Marks testified that the griever was, "Not a 9-5 Probation Officer:. Ke 'is someone who is willing to extend himself beyond the call of duty.'. Mr. J. Gaskall, the Regional Administrator, Probation and Parole, to whom Mr. Marks reported, testified that in terms of energy, enthusiasm, and commitment to corrections the grievor was in the top 10% of the 55 Probation.Offioers under his direction. He stated that the grievor was intelligent, innovative, and cared about what he was doing. In recognition of his superior qualities, Mr. Marks recommended the grlevor for promot2on In 1980'and 1981. Mr. Marks testified that this was an extremely rare occurrence. He added that in 1980, the grievor was the only one out of 12 Probation and Parole Officers under his jurisdiction who was recommended for promotion. In 1981, the grievor was one of two out of twelve who got recommended for promotion. Ee stated that in his view the grievor was his best Officer, in terms of being ready for promotion. He was one 'of the two best Officers in all categories. Then 'grievor had ,special reasons for being committed to his work as a Probation and Parole Officer. Inhis own youth, the grievor had been deemedincorrigible,.in the sense 'of being be~yond the capacity of his mother to handle. When the grievor was 10 'years old, his mother applied to Family Court to have him made a Ward of the training school system. The grievor spent the next six years fin training schools and in various foster homes, mostly in the Toronto area. He was expelled from school at age 13. Bis Probation Officer got &III an early school leaving certificate. He went to work at various jobs and became a drifter, even though technically, he was still a Ward of ~the 'training school system until he reached age 16. Apparently, it was the opinion of those responsible for s~upervising the grievor that he was beyond help and ultimately would end up in the adult correctional system. When he was 18, however, the grievor decided to turn his life around. He got a decent job with a shoe company and worked his way up to become the youngest manager in the history of the company. He married, and with the help of his wi~fe ~decided to return to school. At age 21, he re-enrolled in Grade 9. From there, he rapidly progressed through Grade 13. At that point, he decided tha~t with hi‘s background, a career as a Probation -5- and Parole'Officer would be 'a good goal. As the grievor stated in his testimony at then hea~ring, "I thought I could help people ~with ~similar situations to mine." In 1976, after~ obtaining .'a B.A. in Sociology, theegrievor applied for a position as aProbation and Parole Officer in Ritchener. He was suCCesSfU1. Hissupervisor was Mr. Gaskall, the current Regional Administrator, Probation and Parole. In 1978, the 'grievor,was transferred at his own request to Owen Sound. He :and his wife had purchased a property in that area. They thought it would be a sound opportunity for them tom build their own home. As previously indicated, the grievor's star continued to rise. He became establishe~d in Owen Sound, participating avidly in community activities such as Little Theatre. He also became active in speaking to service clubs and high schools, etc. These were voluntary activities which considerably enhanced the profi .le of the Employer in the Owen Sound area. In April, 198Q, the griwor took on a one year assign- ment as a Community Development Officer for the Employer in his area. In this capacity, it was the grievor's assigned duty to tak,e.initiatives to enhance the profile of the Employer. The 'grievor tackled the 'job with 'considerable n’ -6- energy and enthnsiasm: Tt was a he'a'dy experience in which ,the grievor was able 'to create 'and nurture amnnrnity prcqra~~, gaining considerable 'reward from watching them take root and flourish.' When April, 1981 rolled around and the grievor had to return to his regular duties as a Probation Officer, it undoubtedly was difficult for the grievor to make the 'adjus~tment. As I&,Gaskallstated in his testimony, it was like~being sent back to the "salt mines". The need to readjust~to dealing once again with immature, unmotivated and sometimes borderline clients, began to raise frustrations in the grievor. He also began to feel trapped in Owen Sound by virtue of his and his wife's inve.stment in the property there, and this contributed further frustration. The grievor had become convinced from his experience as a Community Development Officer that the best career move 'for him would,be to go to a larger center. NOW, this seemed impossible. As time passed and his frustrations grew, the grievor became increasingly irritable with his clients. The grievor did not share his frustrations with his wife, Because 'of the way in which. he spent his formative years, the grievor h.ad learned to keeps his. own counsel and .' -7- not reLy on others. HTs ,fee~lings of tension.and frustration grew. ., Finally, InearlYJanuary, 1982, the 'grievor realized that,he 'would need outside 'help to relieve him of his feelings of dep~ression and frustration. He contacted Dr. G. Howie, a psychiatrist in Gwen Sound with whom he. had previously worked In a professional capacity. Dr. Howie declined to take'on then grievor as a patient because of their prior relationship. He called another psychiatrist, Dr. S.W. Hrab, the Unit Director of the Homewood Private Psychiatric Hospital in Guelph.' Apart from his duties at Homewood, Dr. Hrab also worked as a consultant to the Guelph Correctional Centre 'and took on a small number of outside clients. Dr. Hrab agreed to take the grievor as a'patient. The grievor began to see Dr. Hrab on January 13, 1982. According to the testimony of.the grievor, it was -slow going at first because 'he really did not know the reason for his own feelings of frustration. He stated that they .had to embark on a program of dfscovery.~ was part of this program, her delivered to Dr. Urab a life story that Dr. Hrab had asked him to make out. This was just before the date of the incident in question. -8- The incident leading to the,~yrievor's discharge occurred on Friday, March.12, 1982. For about month prior to thi's date, the 'griever had begun to become disillusioned with the usual process of dealing with probationer~s, i,.e.~; co'unselling them and warning them of what could h,appenif they violated the terms of their probation. The' grievor~ testified, *I was tired, tired of talking, just tired~." B,e 'stated that in this one month 'period, heebegan for tlie~ 'first time to consider corporally punishing clients whose lack of motivation to cha'nge frustrated and angered him. This brings us .to the factual incident. On Thursday, March 11, 1982, the ~grievor was performing his usual intake procedure with 'a neti probationer. The probationer had missed a previous appointment and in addition to explaining the usual consequences of violating the terms of probation, the grievor undertook to warn the probationer of the potentially s~erious consequences of doing so. The grievor began 'to get angry and frustrated. Although the probationer wasp over 21, there did not appear to be any appreciation on the proba~tioner's part, at least in an adult sense, -of the connection betwee,n the crime that was committed and being on probation. The probationer was below average in in- telligence and socially inadequate. Every point that - 9 - the grievor attempted to make was-met with a look of blanknes's. T.he proba'tioner made 'only vague responses. The grievor suggested tha~t it seemed that the only way he could impre,ss upon the probationer the need to keep appointments wou'ld beeither to send the probationer to jail as he had apparent power to do or! corporally punish ~the ~probationer like a child. The probationer agreed to take the corporal punishment. On Friday, March 12, the probationer returned to the office and was spanked by the grievor whi~le being reminded by the grievor of the reasons for the punishment. Later that same day, when then probationer's sister heard about what happened, she called the Police. There was an investigation. On Saturday, March 13, when the grievor was questioned by the police investiga- tor? Detective M. Kaye, he denied the incident. Later, on Sunday, March 14, when he met again with Detective Kaye, the grievor refused to make any admission but asked if he should call the Crown.* Detective Kaye stated in his testimony that he noted at this point that the grievor was very depressed and upset. He felt that the grievor might * I~t should -be noted that on Saturday, March 13, Detective * Kaye had advis~ed the grlevor that anything that he might say could be taken down and used against him in a criminal proceeding. do harm to himself. Detective Xaye added, "I was going to check in ha~lf an hour to see if everything was okay." On Sunday evening, the grievor managed to contact by telephone his, super'visor, Mr. Marks. (Apparently, the grievorhadbeen trying to make contact for a considerable period of time but Mr. Marks had been away from home.) He advised Mr. Marks of tlie~ ~incident and suggested that ., ,,.. first.thing Monday morning, he 'should meet with Mr. Marks and Mr. Gaskall. This meeting took place on Monday morning, March 15, 1982. According to Mr. Marks, then grievor related the entire.incident, commenting that over the past few months he had become frustrated, that he could not help clients who were unmotivated and did not have much to work with. .Both Mr. Marks and Mr. Gaskall observed that the grieror was extremely distraught and remorseful. They became concerned about his emotional state. Mr. Gaskall testified that he was worried that the grievor might have suicide on his mind. Mr. Marks contacted Dr. Hrab and arranged for the grievor to visit the doctor at about noon. Both Mr. Marks and Mr. Gaskall were shocked by the griever’s revelation, butneither‘of them concluded that discharge was in order. Mr. Marks testified that he considered the most - 11 - appropriate course ~of action to be to temporarily re- assign the' grievor to duty as an Institutional Liaison Officer at the 'Guelph'Reformatory, a move which would keep then grievor from doing case work in a social work situation while' his problem was being identified. Mr. Marks indicated that he' thdught that this ~would be appropriate because the ~grievor was a high calibre, model type of employ~ee 'with.'Xto 8 years with the Ministry. Mr. Gaskall likewise indicated that when he learned of the incident at the meeting of March 15, he did not consider discharging the grievor. In fact, he expressed an opinion in the presence ~of Mr. Marks and the grievor that discharge probably would not occur. Mr. Marks testified, "At the meeting on March l5, it was my opinion and Mr. Gaskall's opinion that discharge of the grievor probably would not occur. The grievor could have inferred this from our conversation, yes." Matters, ho'wever, changed. The discussions of what action should be taken with respect to the griever were carried to the level of the Deputy Minister. In the course of this process, flrl Marks adhered to his suggestion .regarding temporary transfer to a position as an Institutional Liaison Officer. He also.suggested that the grievor be given a medical lea~ve ~of absence ~until he 'was pronounced fit to return to duty. Mr. Gaskall likewise suggestedanumber of alter~natives. Bothhsupervisors put these suggestions before ~a managenien't mee'ting involving Mr. Marks, Mr. Gaskall, Mr. CampbeSl (the Deputy Minister), Mr. ,Daniels (the Executive Director, Community Programs Division), Mr. Taylor (Director, Probation and Parole'for Ontario), and m. Crew (Director of Personnel), Mr. Gaskdll testified that the invariable response that was made to his and &. .Marks' Suggestions was that dismiss~al was the 'inevitable ~conseguence of .an assault on a client, regardless of then circumstances.~ In the light of this reaction from the corporate authorities of the Ministry, Mr. Gaskall acceded. On April 13, 1982, Mr. Gaskall drafted a letter terminating the grievor as of April 14, 1982. The letter stated, in pertinent part, "There is no doubt that your actions constituted grave and unprofessional misconduct totally unbecoming a Probation Officer and involving a gross abuse of your authority. This reflected adversely upon the Probation Service of this Ministry and the administration of justice in Ontario. I am therefore dismissing you for cause in accordance 'with 'the provisions Iofl S.22c.3) of the Public Service Act effective as-from April 14th., 1982." On the same date, the grievor grieved this dismissal. In due course, this hearing followed. At the hearing , the 'case ~forthe Employer focused upon the undeniable ~fact that a Probation and Parole Officer is charged with's public trust, and in the execution of this trust wields considerable power over his clients. The Employer stressed the need tc prevent any Probation Officer from abusing the'trus~t and inherent power of his posi- tion. The grievor, itwas contended, grossly abusedthispowerwhen he used it to extract from a probationer consent to corporal punishment and t&n, pursuant to a deliberate plan., carried outthat assaultive conduct on then following day. A gross abuse of trust power such 'as this, the Employer submitted, required the 'strong retributive sanction of dismissal in order to deters others from committing like abuses. This was a power~ful argument, and one to which we might have bee'n' attracted if we were confronted with a situation wher~e no mitigation was present, no strong potential for rehabilitation was present, and the immediate reaction of the grievor"s superiors was to apply the sanction of dismissal. But here, this was not the case: As to the 'existence 'of mitigating circumstances, we note 'that at the 'time 'of then incident the grievor was .: - 14 - iZ a depressed and' frustrated state.. That this was not 'Lie usual depression to be expected in the course of .performing the duties of a Probation and Parole Officer was evidenced by the fact that in January, 1982, the grievor realized that his condition was so severe that he ought to seek professional help. He did so. TheLCondition was brought‘on by a combination of factors k-l?ich came together at the same time: the -dras,tic .change in accomplishment and satisfaction accompanying the grievor's return to the "salt mines" from his position as Community Development Officer: the feeling 'of having made moves in his career and pe.rsonal life which left him "trapped" in a small center like Owen Sound: the reali~zation that he -dould be better suited to a position in a larger center; <:.e tendency of the grievor to "bottle up" these feelings :.:ithin himself: and, the overly high expectations the griever had of himself and others resulting from his own extraordinary success in turning around his own life. The stress resulting from the combination of these factors caused the grievor to lose control with the probationer in ;-uestion, who unwittingly p.layed the role of the "straw that broke the camel'~s back". That this was so was made eminently clear in the testimony of Dr. ED. Paitich, the Chief Psychiatrist at th,e .' Clar)ceInstitute, who made a detailed psychological assessment - 15 - of the grievor.. Based upon his own observations of 'the grievor and the administration pf a battery~ of tests, Dr. Paitich found no psychological abnormality whatever. He stated tha~t the 'griever was basically well adjusted, creative, imaginative 'and highly intelligent. At the same time, however;Dr.. Paitich.: testified that his tests, revealed 'some aggres~sive tensions within the grievor which were within the range 'of normal.personality. He added that because 'of the lexistence of these aggressive tensions, the grievor's first tendency under stress would be to show some relaxation of his control thereof. This, Dr. Pajtich testified, is what caused the incident in question. He stated that the grievor was a "reasonably: normal person in unusual circumstances that led him into atypical behaviour." There also was strong evidence of potential for rehabilitation. The grievor was one of the top, if not the top, Probation Officers in his Region. There was no doubt that .virtually immediately after the incident, the grievor felt consfderable remorse. In this.regard, we do not accept the contention of the Employer that no remorse was felt until after the grievor was contacted by the'police. We accept the testimony of the grievor tha~t immediately after IF .a - 16 - the probationer in question left his office 'he was filled with r,egret Legarding what ha'd taken place. We also find significant the evidence of Detective Kaye, Mr. Marks, and Mr. Gaskall that on the Sunday and Monday following the 'incident thegrievor was in such~ a disturbed state that they ~feared he was contemplating suicide. Finally, on thequestionpf potential for rehabilitation, it is of considerable significance that Dr. Paitich gave 'unequivocal testimony that in his professional opinion there wasp absolutely no risk of a recurrence of the incident giving rise to the grievor's 'dismissal. He said, ".Xr. Lindsay has such a good insight into himself thatthere is absolutely no risk of any recurrence whatsoever. The risk is nil that Mr. Lindsay will act out his frustrations through improper contact with clients." We are persuaded by this strong expression of expert opinion that there is no risk that the kind of incident which led to the griever's dismissal will happen again. This conclusion is fortified by further evidence that the grievor iscontinuing to see Dr. Hrab on a regular basis and will be doing so for the balance of a period of treatment lasting for two years. Turning to the reactions to the incident of the grievor's~~supervisors, Mr, Marks and Mr. Gaskall, we find - 17 - reason to doubt the contention of the Employer that dismissalwas necessary'to deter others from engaging in similar abuses of the:ir trust power. If this reaction was so crucial to the interests of the Employer, why did it not occur immediately in the minds of supervision in the field? These are the people who are in daily contact with 'Probation and Parole Officers. Presumably, they also wouid be the firsttorealize the implicationsof applying a sanction falling short of dismissal to the ,breach of trust ,committed by the grievor Yet neither Mr. Marks nor Mr, Gaskall even considered dismissal to be in the realm of probability. The initial reaction of both was to transfer the grievor to a non-client contact position until they received assurances that the grievor was fit to return to his duties as a Probation and Parole Officer in the field. At the hearing, 'both supervisors essentially testified that their views regarding the grievor had not changed. Mr. Marks testified that he would have no difficulty in working with the grievor if he were reinstated. Mr. Gaskall testified that he would have no objection to the grievor being reinstated, so long as the following two conditions were satisfied: (11 that the 'emotional difficulty that caused the incident hasp been overcome; and (-21 that at least initially the'grievor worked as an Institutional Liaison Officer rather than a Field Officer, because the former is less of a job you take home withyou than ;that of a. Field Officer. The first condition set forth by Mr. -Gaskall, above, has been met in the evidence 'in this case. As we noted above; the &pert evidence is that there is no chance of a repetition of the incident which led to the grievor's~ dismissal, Accordingly, we are inclined to substitu~te less severe discipline: and reinstate the grievor. This brings us to consideration of the second condition put forward by Mr. Gaskall, above. We think. that for the balance of the grievor's two year period of treatment with Dr. Hrab, the grievor should occupy a reasonably acceptable administrative post with the Employer. Upon completion of this period of time, the 'grievor should begin easing back into the role of Probation and Parole Officer. The logical first step in this, as Mr. Gaskall indicated, would be transfer to the positidn of InstitutionalLiaison Officer in the facility of the Employer at Guelph. Thereafter, the grievor should be in a position to compete for field positions asthey bscome available. Then terms of our Award, then, are 'as follows: The grievor is reinstated as of September 14, 1982. He will ,...,.’ ,:~ .~’ F.“‘.. - 19 - occupy a reasonably acceptable administrative 'post pending completion of his two year period of treatment with Dr. .Hrab. The term, "reasonably acceptable", shall 'be determined according to objective factor-s taking into account the -interests of the Employer, the grievor and the Union. Upon completion of the~period of treatment with Dr. Hrab, the grievorshall be transferred to a position as an Institutional Liaison Officer at Guelph. Thereafter, he shall be free 'to compete for field positions in 'the Probation and Parole 'Service ,of the Employer as they become available. We will retain jurisdiction of thematter pending implementation of the terms of this Award. DATED AT London, Ontario this 10th day of December, 1982. Vice Chairman ‘-. 7: 3430 S. ~J; Dunkley; 'Member -:,. ;, _ & ., A- G. Peckham, Member