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HomeMy WebLinkAbout1983-0761.Church.85-05-30Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before: For the Grievor: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (S. Church) ‘~ and The Crown in Right of Ontario (Ministry of Correctional Services) J. W. Samuel.5 L. Robirison C. K. Griffin Vice-Chairman Member Member M. I. Rotman, Counsel For the Employer: C. G. Riggs, Counsel Hick Morley Hamilton Stewart Storie Hearing: April 17 and May 1, 1985 Grievor Y.. Employer ” 2. ~. INTRODUCTION This is our final award.in this matter. The griever says that he was discharged without just cause on November 2, 1983, from his Position as a correctional officer at the Toronto Jail. He had been appointed to the unclassified service on August 29, 1983, for a period of three months to November 28. On Sunday, October 30, he was assigned wlth an experienced officer to escort an inmate to hospital. The inmate escaped. This panel of the~Grievance Settlement Board has already dealt with the grievance against discharge of the other officer in Lee, 764/8j!~‘.The grievor here was n6t disciplined for his part in the escape itself, but for his actions later that day. ” After doing what he was required to do in the post-escape investigation, he returned home and, wondering whether or not the inmate had been recaptured, he placed a telephone call to the Toronto Sun. He was put through to the police.reporter. .During the call, the reporter realized he was talking to an officer involved in the escape.and, instead~of giving information he’eiicited a story from the grievor. After hanging up, the grievor realized he had made a huge mistake by talking to the reporter, and he called again to say that it was all -off the record-. But the reporter insisted that it had not been a confidential call, and the story appeared in the Sun the next morning. Now the grlevor was in a high state of agltation. He was afraid he might lose his job, or be prosecuted for breaching his oath of secrecy, or suffer some other consequences as a result of the escape and his talking to the press. Early Monday morning he went to the jail to meet with Superintendent DeGrandis. On his way past the reception area, he saw Messrs. J. Gowher and S. John, both experienced correctional officers, and spoke with them briefly. Both men mentioned the Sun article, and that the grie\ior should not have spoken to the reporter. The grievor testified that Mr. Gowher then told him not to admit anything to anyone, and Mr. John told him .tO say that a pOllCe. officer from the,,Criminal Investigation Bureau had gottenin touch with him. Both officers deny categorically that.they said any such thing or gave any such advice, and Mr. DeGrandis concluded after his InVeStigatlOn that they had not said this to the grievor. We have come to no conclusion on this point. There is no doubt that the grievor was in a state of panic at the time. From his evidence and demeanor before this Board, it is easy to believe that he thought he had received such advice, but that it was simply his impression of what was said. The grievor met with Mr. DeGrandis. .No mention was made about ,the Sun article. After the meetlng, on his way down a corridor, the grievor ran lnto Messrs. K Wilson and P. Burns, two Union officials. There for the first time, the grievor told his twisted tale of receiving a call from someone identifying himself as a CIB officer, who questioned him, and who later turned out to be a Sun reporter. Mr. Wilson suggested that the grievor file an Occurrence Report relating these events. So the two men met with the outgoing Acting Senior Assistant Superintendent, Diane MacKinnon, and the grievor filed his Occurrence Report. It is acknowledged to have been a complete fabrication. The grlevor wrote that he had been called by an : officer identifying himself as a sergeant~from the CIB, who was doing a follow-up report regarding the escape, and that the grievor had told him the whole story of the escape. It was not until the next morning, when he saw the story in the Sun, that he realized he had been speaking’with a reporter. The gtievor went home, and found that his lie brought no relief. Now he was even more afraid for his future. He phoned Mr. Wilson and told him his predicament. Mr. Wilson told the grievor that the grievor had to decide what to do. The grievor concluded that he would file another Occurrence Report the next day, which he did. In this report, he tells all about his call to the Sun, and his conversations with the reporter. He then speaks of meeting the . . 4 two officers on his way into the jail the~next mOrning, and writes that one of.the officers ‘suggested that if anybody questions me about i-t, management or staff alike, it was insisted that I say an anonymous person called claiming to~be from the Criminal InVeStigatiOn Branch (C.I.B.). This was the only alternative, I was told.’ The underlining was in the grievor’s report. In these circumstances, on November 2, Mr. DeGrandis wrote to the grievor terminating his employment: + On October 3 I, 1983, you submitted a totally fabricated report to my office accounting for the fact that you were quoted in‘ the Toronto Sun newspaper regarding the escape of the inmate the previous day. This fabrication was intended to conceal the true nature@ your contact with the press and as such, places grave doubts in my mind about your integrity. This is the very nature of a Correctional Officer’s works and responsibility, to accurately reflect events, situations.and~occurrences In the discretion of his duty. You have failed to meet the test, and the high standard expected of you. As such, I am hereby releasing you .from employment under the provisions of Section 3. I I of the Collective Agreement. :; Neither in this letter, nor in its argument before this Board, did the Ministry place any weight on the truth or falsehood of the grievor’s evidence abOUt his advice from the other two officers. Rather, it was argued that the grievor’s conversation with the reporter, and his original lie, are sufficient grounds for disciplinary dismissal, or for termi’%tion under Section 3. I I ON DISCHARGE In our view, if this was a discharge, there was just cause. There is simply no room for doubt that a correctional officer m,ust have integrity, and that management must be able to rely on his word. It was emphasized that, in some cases, the word of the correctional officer will determine whether or not an inmate 1s to be incarcerated foralonger or shorter period, and this power demands absolute integrity. Union counsel suggested that the grievor had not received adequate training on the need for integrity, but we have no dlrfrculty sa.ylng that there does not need to be any training ..:. on the point. A correctional officer simply must know the importance of telling the truth. Furthermore, the grievor’s lack of composure after the escape, and his conversation with the reporter, add to the grounds for discharge. The grievor knew full well that he was not to speak to the press, yet he spoke freely with the reporter about matters which required a high degree of security. The grievor had only~been in the Ministry’s employ for several months. He had no long service on which to base an argument that he was a valued ,employee. Accordingly, we find that, if this matter is to be treated as a discharge, there was just cause, and the grievance is dismissed. ON TFRfllNATlON. On the,other hand, if this matter is to be treated as a.termination under Article 3.1 I of the collective agreement, then in our view there was a bona fide termination, and this Board Cannot review managements decision. .~. “Termination” under Article 3. I I is akin to ‘release’ under section 22(S) of the Pub//c Service Act This is’a non-disciplinary conclusion of employment, and may occur ‘when the evidence discloses that the employer based the termination upon a general view that the grievor’s attitude and/or capacity fell short of the level required for satisfactoryperformance of his or her duties and responsibilities’ (Lebert, 295/8j: at page 2 l/2). And the employer’s view may be based on conduct which could be the subject of discipline, if the conduct demonstrated the lack of proper attitude or capacity for satisfactory performance of the job (Kez?-~e, 596/g/, at pages 13 213 to the top of 14). In this latter respect, we disagree with the Board 6 in Ambrey, 429/84 which held that ‘where an employer tries to bring an end to the employment by reason of a desire to react to conduct on the part of an employee, this must be viewed as a dismissal rather than a mere termination” (at the top of page I 1). The issue is not whether the employer is “reacting to conduct”, but whether or not the employer has honestly concluded that the grievor lacks the proper attitude or capacity for the satisfactory performance of the job. If this conclusion is reached because of culbable conduct, it doesnot change the fact that it was a conclusion concerning the grievor’s attitude and capacity. l fin the circumstances of this case, if this matter is to be treated as a termination under Article- 3.1 ! of the co!lective agreement, then we have no hesitation in concluding that managements declslon was bona fide. And if it was a termination, Article 3.1 1. provides for one weeks notice, or pay in lieu thereof. The grievor received one week’s pay. While we realize that, in this respect, Article 3.1 1 is to be taken as simply a suggestion of the remedy in the event of termination (this point is discussed fully in our interim award in this case, dated January 2,‘1985, at pages 5-B), in our view, the one week’s pay was ample in the circumstances of this case, given the grievor’s very short service on a three-month contract. For these reasons, if this matter is to treated as a termination under Article 3. I I, we would dismiss the grievance. CONCLUSION In sum, if this isa discharge case, then there was just cause. If thls is a termination under Article 3.1 I of the collective agreement, then managements action was bana fide and is not subject to review, and the one week’s pay in lieu of notice was satisfactory. : .- : For all these reasons, the.grlevance 1s dismissed. Done at London, Ontario, this 30th day of May, 1985. 7 L. Robinson; Member G. K. Griffin, Member