Loading...
HomeMy WebLinkAbout1983-0462.Folz.84-07-16Between I:. IN THE MATTER OF AN ARBITRATION Under THE CROWN EMI'LOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: For the Employer: Hearings: OPSEU (Larry Folz) - And - Grievor The Crown in Right of Ontario (Ministry of'Correctiona1 Services) Employer R.L. Verity, Q.C. Vice Chairman M.V. Watters Member W.A. Lobraico Member C.G. Paliare, Counsel Gowling & Henderson Barristers & Solicitors J.F. Benedict 'hlanager, Staff Relations Ministry of Correctional Services February 23, 1084 April 25 and 30, lSS4 -2- DECISION In a Grievance dated March 24, 1983, Larry Folz alleges that he was disciplined without just cause in. a letter,of reprimand. from Barrie Jail Superintendent Duncan McFarlane dated March 11, 1983. The settlement requested was removal of the letter,from the Grievor's personnel file. .a I ~- The Grievor is a Correctional Officer 3~who works atCamp Hillsdale Detention Centre, which is a satellite of the Barrie Jail. His current seniority dates to February 4, 1974, although in fact he has acquired some 21 years of service with the Ministry. The. Grievor has been President of OPSEU, Local 313 for many years. At the Hearing the Grievor was described by Superintendent McFarlane as "an excellent officer". The discipline imposed arises from a ,front page feature newspaper article and accompanying photograph of the Grievor which appeared in the Barrie Examiner on Wednesday, March 2, 1984 entitled: "BARRIE JAIL OVERCROWDING CLAIMED Prisoners 'set to explode"' Statements attributed to the Grievor concerning overcrowding and working conditions in the jail formed the basis of the article. The Employer objected to the accuracy of the Grievor's comments and was concerned about the potential' security implicationsof those statements. -3- The newspaper article in question resulted from a provincial campaign by OPSEU to attract public attention to alleged overcrowding in Ontario jails. The provincial campaign came to the attention of Barrie Examiner, City Editor Tony Panacci through the Canadian Press Wire Service. Mr. Panacci assigned Barry Examiner reporter, Paul Schliesmann, to investigate the Barrie Jail senario for a local news _ story. Reporter Schliesmann interviewed both the Grievor and Barrie Superintendent McFarlane and prepared the newspaper article in question. The article contained statements from both the Grievor and the Super- intendent. In a,letter of reprimand, Superintendent McFarlane alleges in part as follows: "That p released confidential, sensitive, and in .sme cases errorxxn~ana exaggerated informationto theMedia prtaininq to Institutional Security without prcper authorization, and in so doing, breached your Oath of Secrecy, as wall as possibly jeopardizing the security of the Barrie Jail and the safety of its staff. Invieuof the factthatyouandyour representative did notsatisfactnrilyrespondti thequestions regardincthe above allegaticn, I have no alternative but to believe that the allegation is supported. My main concern is that you gave out sensitive infornetion without authorization, in breach of your oath of Office and Secrecy.... It is my opinion that you -a poor judgemark, rather than that yw warennkinga deliberate attenpttoundermine the security of the Barrie Jail." -4- At the Hearing, the Board was advised that reporter Paul Schliesmann was unavailable to testify at that time as he was in Europe and that his anticipated return to Canada would be in April or May of 1984. At the outset, Mr. Paliare made it clear that in his opinion the newspaper article was hearsay evidence, and he insisted upon strict proof of the Ministry's.case.., The Board ,- advised the Parties that it would set a special date, if requested, within a reasonable period of time to hear the evidence of the newspaper reporter. During the three day hearing, four witnesses testified on behalf of the Ministry. Twenty-one exhibits were admitted into evidence including the newspaper article in question. Barrie Examiner City Editor, Tony Panaccia,testified concerning the background of the newspaper's story and established the fact that it was published on March 2, 1983. He stated that the newspaper received no complaints concerning any alleged misrepresentations with regard to the accuracy of the story. The principal witness for the Ministry was Barrie Jail Superintendent McFarlane. Be explained that.the Institution was i :' built in 1843 and was a maximum security institution which serves as a holding unit for all persons charged under the Criminal Code of Canada and other Acts in Simcoe' County. The Superintendent explained that the building was designed initially to accommodate 43 persons, and through structural changes that it presently had a - 5 - design capacity of 74 and anoccupational capacity of 66. Mr. McFarlane testified in some detail concerning the statements attributed to the Grievor in the newspaper article. In his opinion, some of the Grievor's statements were erroneous and inflamatory. The Superintendent described other statements attributable to the Grievor as confidential in nature which potentially could affect the security of the Institution, the staff and the community at large. Superintendent McFarlane testified that he and Deputy Superintendent Hugh McLellan met with the Grievor and his Counsel Mr. Paliare on March 10, 1983. According to the Superintendent's evidence, the purpose of that meeting was to afford the Grievor the opportunity to answer the allegations relating to the newspaper article'. The meeting was described as cordial but of brief duration. The Superintendent's recollection of what transpired at that meeting was as follows: 1) 7-l 3) lkre was prel iminary discussion concerning the rights of theGri.evorattheineeting. Mr. Paliareadvised the Superintendentthathis clientmightlloeanswarthe questions pwa. The Superintendent asked theGrievor if the statits attributable tohimwere true. TheGrievor replied that the article was directly in frcntof the Superintendent. SuperintendenttkFarlaneasmmedbythatresponsethat the Griever's reply was in the affinnativa. 'IbeGrievorwas thenaskedifhehad saidthatthe capacity of the Barrie Jail was 43. ?he~rievcrwasadvisedbyhis Counsel not to an-r the question, but replied in any event thathehadbeenmi.sguoted in the newspaper article. ?he i ‘: -6- Griever explained thathe had stated that it was the original capacity of the jail that was 43.' 4) The Superintendent then questioned the Grimm concerning his statemants alleging overcrowding at Samp~Hillsdale. Ihe Griever replied that in his opinion Camp Hillsdale. had been overcrowded on one occasion wheu renovations ware beinqundertaken. 5) The Grievor was then questioned almut his statesent in the newspaper article to the effect that there *Fe 5 guards on duty at niqht at the Rarrie Jail. The Griever' then accepted the advice of his Counsel and declined to answer the question. 6) 'Ihe Superintendent then decided that it was futile to pose any further questions in viewof Mr~Pal*e's advice to his client. 7) The intervkwms tenainatedbytheSuperintendent~dthe Grievorwas subsequently seqtthe disciplinaryletterof Karch 11, 1983. The Grievor's "Oath of Office and Secrecy" sworn on February 4, 1974 was introduced as Exhibit 13. The Oath reads as follows: "CWIKOF OFFICE AND SECRECY I,LW&CE D. FDLZ do swear that1 will faithfully discharge my duties as a civil servant and will observe and comply with the laws of Canada and Ontario, and, except as I my be legally required, I will not disclose or give to any person any informationor daament that comes tc my knmledg~ or possession by reason of q beinq a civil servant. So help m?God. ShtXN before ma at the Village of Eurwash in the District of Sudbury ) this4tbdayofFebruary ) 1974. 1 Sianed 'John Car Miller' --2--m Clerk of the Executive Council, Deputy Minister, or person desiqnatedby them. JOHNCMRMIILER, a Comnissioner, etc. province of Ontario for Government of Ontario. Expires 28th Dec., 1975." - 7 - Deputy Superintendent McLellan testified that he was contacted by several Correctional Officers and Shift Superintendents following publication of the article on March 2, 1983, all of whom were upset by the quotations attributed to the Grievor in the news- paper article. Barrie Jail Supervisor Leonard Broadbent testified briefly to the same effect. The Board was advised on April 20, the third day of hearing, that the Employer had completed its case. Mr. Benedict asserted that it was not the Employer's intention to call the reporter as a witness. Mr. Benedict argued that the Ministry had adduced sufficient evidence to establish a prima facie case. Mr. Paliare then made an application for non-suit. When put to its election the Union advised the Board that it would call no . evidence. The basis of the Union's motion was that the Grievor had been disciplined for statements made to the press which had not been proved at the Hearinq. Mr. Paliare argued that the evidence established only two admissions: first, the admission regarding the capacity of the Barrie Jail in which the Grievor claimed that he had been misquoted; secondly, the admission concerning the alleged overcrowding at Camp Hil1sdaS.e in which the Grievor offered the explanation to the Superintendent that there had been overcrowding during a period of construction. , I I I -8- It was Mr. Paliare's contention that.other than the two admissions referred to above., there wasno direct evidence that the Grievor'had made other statements; In particular, -the Employer's primary concern regarding statements made by the Grievor about the number of Correctional Officers on duty on,the night shift had not been proved. It was argued that the Employer's failure to call the ,- reporter was a witness did not establish that statements attributable to the Grievor were in fact made; ,In addition, it was argued that , failure to call ttie reporter precluded cross-examination on the critical facts. In short, the Union's position was thatthe Employer relied exclusively on hearsay evidence. The Ministry argued that the evidence did establish a prima facie 'case. The Grievor's failure to deny statements made to the reporter during his meeting with the.Superintendent~on March 10 established that the article was true ,an'd that statements attributable to the Grievor were made and accurately reported,and published. The Employer denied that it was relying exclusively on the newspaper article, but had adduced additional evidence .such.as the Oath of Secrecy to establish a prima ,facie case. Alternatively, Mr. Benedict on behalf of the Employer /;j i, contended that the Law of Defamation was applicable to the facts of the instant grievance. The Board was referred~to papers prepared in 1981 for the Law Society of Upper Canada,.Department of Continuing Education, on the Law'.of Defamation, and as well to the Libel and Slander Act, R.S.0~. 1970, C.243 as amended., ,It was specifically - 9 - argued that the Grievor had defamed the Employer through his participation in the publication of the newspaper article on March 2, 1983, and that upon proof of such participation, the Employer was relieved of the evidentiary burden to prove that the Grievor actually made the statements in the aforesaid newspaper article. With respect, the Board does not view the technicalities of the Law of Defamation as being of any assistance in the resolution. of the issues raised in this Grievance. In particular, we do not accept that in the context of this Grievance, it had the effect of transforming hearsay evidence into evidence which satisfied the burden placed upon the Employer. Having reviewed the arguments on the motion for non-suit, and having considered the sufficiency of the evidence adduced by the Employer, the Board finds that the Employer has failed to establish a prima facie case against the Grievor. From the outset, the Union insisted upon the requirement of strict proof of the Employer's case. In this matter, the Employer has an insurmountable evidentiaryproblem in its failure to call the i ~, 'reporter as a witness. Clearly, the Board has the right to accept \ i. the newspaper article as an exhibit at the Hearing; however,the weight accorded to that piece of evidence is another matter. In our opinion, the Employer relied exclusively upon the newspaper article for the imposition of discipline upon the Grievor. As presented, the newspaper article in question is hearsay evidence, the truth - 10 - of which was not proved by calling evidence from the reporter or :. from the Grievor. On the evidence, the Board is satisfied that the Grievor did speak with reporter Paul Schliesmann. The only evidence that is not rele,gated to the status of hearsay evidence is two separate .- admissions referred to above which took place on March 10 in the Grievor's interview with Superintendent McFarlane. Generally, Arbitration Boards refuse to find critical facts on the basis of hearsay evidence which would otherwise be available in this case, either by oral testimony of the reporter or by way of admissions from,the Grievor. In the absence of the reporter, the Employer may have rectified that defect by calling the Grievor as a witness as part of its case. We must find that the evidence is so patently inadequate that the motion for non-suit must succeed. In the instant Grievance, the Employer's reliance upon the Grievor's breach of his Oath of Secrecy is directly related to the alleged release of inaccurate and sensitive information. On the evidence presented, there is no proof of the Employer's initial premise, namely breach of security 1.1 i, or release of sensitive and inaccurate information. Had the Grievor been disciplined solely for speaking to the press in breach of his Oath of Secrecy, that would have presented different considerations. However, speaking to the press was not the reason for the imposition of discipline as set out in the Superintendent's letter of discipline. - 11 - In the result, the motion for non-suit is successful, and accordingly this Grievance must be allowed. All refer- ences to the letter of reprimand shall be removed from the Grievor's personnel files. DATED at Brantford, Ontario, this 16th day of July, A.D., 1984. R.L. Verity, Q.C. Vice Chairman M.V. Watters Member "I dissent" (see attached) W.A. Lobraico &ember DISSENT With respect I must dissent with the decision of the Vice-Chainran to allow the motion for non-suit and remval of the letter of reprimand. I view the issues here as straightforward and clear. Mr. Folz made statements .to the &-ess which were unauthorized. He failed to answer. or justify what was said to the newspaper reporter when questioned by the superintendent at the meeting on March 10, 1983. The letter of reprimand, in these circumstances, is reasonable and justified and to allow the grievance to succeed on ah apparent technicality is wrong. : In his opening stateixznt counsel for the griever made much of the highly significant nature of the case and the principles involved. He stated that the griever was reprimnd& as the result of speaking out on mittens of important public interest. The employer was trying to nmizle, coerce and intimidate union members fraa bringing such matters of concern to the attention of the general public. We would have had a lengthy submission regarding the rights of employees under the Canadian Charter of Rights and Freedan had counsel not seized on the enployersinability to produce the author of the newspaper article and make application for a non-suit. This appears to me to be an attempt to turn the hearing into a victory for the cleverest and best orator rather than the party in the right. In my opinion, the employer did make a prima facie ease and the onus was on the griever to defend his action. In any hearing before a Grievance Board the rules need to be varied to meet the circwstances; we do not want to find that substance has been strangled by form. Campn sense dictates that the I -2- newspaper article should be accepted. It does not matter whether the statemits made were right or wrong or correctly reported, but whether the griever raade statments to the press in an interview, without authorization, designed to cast discredit on the enployer. The grievor and his represen- tative chose not to testify and I believe this allows the Board considerable leeway in drawing its owa conclusions. Evidence shouldbeweighted according to the proof which is in the peer of the one party to pmduce and the other to contradict. Failure to give such evidence permits the Board to draw an inference that the evidence would have been unfavoursble. Because a prima facie case was made, the application for non-suit should fail; the failure to call evidence should then result in dismissal of the grievance. The Vice-Chairman makes reference to the enployer’s contention that the law of Defamation was also applicable but does not consider it to be of assistance in the resolution of the issues. It may well be that the Law of Defamation was applicable and it would have been open to the anployer to initiate pnxee&gs under the Libel and Slander Act at the time of the alleged libel. Respectfully, W.A. I.&braico