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HomeMy WebLinkAbout1984-0027.Gogan and Sinclair.84-08-2927184, 28184, 29184, 35184, x/84, 37184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Gary Gogan and Cory Sinclair) Grievors - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer P. M. Draper Vice Chairman E. McVey Member L. Turtle Member For the Grievors: A. Ryder, Q.C., Counsel Gowling & Henderson Barristers & Solicitors For the Employer: J. F. Benedict Manager, Staff Relations Ministry of Correctional Services Hearings: April 4, 1984 June 19, 1984 -2- The Grievers, Cory Sinclair and Gary Gogan, grieve that they have been dismissed without just cause and request reinstatement in the positions from which they were dismissed and restoration of lost salary and benefits. The Grievors were employed as stationary engineers in the steam plant at the Rideau Correctional Centre. The Centre, located at Burritt’s Rapids, near Kemptville, is a combined minimum and medium security institution which accommodates some 160 inmates serving terms of up to two years less a day and has a staff of ll0. Classroom instruction to Grade 10, correspondence courses to Grade 12, a farming operation and a trades program are available to inmates. An alcohol and drug program is also conducted. The steam plant operates on a three-shift basis with one stationary engineer working each eight-hour shift. An inmate is assigned to each shift to work under the direction of the stationary engineer and is checked twice per shift by a correctional officer. Both Grievors have a Grade 12 education and attended community college to obtain 4th class stationary engineer certificates, Gogan later advancing to the 3rd class level. At the time of their dismissals both had approximately IK years of service with the Ministry. They received a custodial responsibility allowance in addition to their salaries, as do such other employees of the Centre as cooks and maintenance men. Sinclair, whose family home is at Ottawa, is 21 years old. He had IX) disciplinary record. Gogan, whose family home is at Ingleside, near Cornwall, is 23 years old. He had received one written reprimand for failure to clean a boiler properly. The Grievors first met after they began to work at the Centre. They had rented a cottage together on the Rideau river, some 5 or 6 miles from the Centre, in March, 1983, and were living there at the time of their dismissals. -3- Gogan was working the 4 to 12 shift on Sunday, September 25, 1983. At about 6:00 p.m. he took his car, a Camaro, to the Centre’s garage to be washed by the inmate assigned to work there, Brian Hay. This is a common practice of both management and employees of the Centre and Gogan had his car washed there weekly. Hay is about 35 years old and has been confined at the Centre several times, for what offences we were not told. He is described as a manipulator but was also considered as a trusty, that is, an inmate who would not try to escape. He is commonly known by the nickname “Haywire”, which presumably says something about his approach to the world around him. On the occasion in question Hay asked Gogan if he wanted him to put a vacuum cleaner, which is part of the garage equipment, in his car. Gogan replied, “It’s up to you.” Hay also washed Sinclair’s car regularly and was aware from conversations with both of the Grievers that they needed a vacuum cleaner for the cottage. On an earlier occasion Hay had suggested putting the garage vacuum cleaner, a large, wet-vat, canister type valued at $225.00, in Sinclair’s car and had been told not to do so. When his car was washed, Gogan drove it to the parking lot beside the garage. His testimony is that the vacuum cleaner was not in the car at that time, that he noticed it in the back seat only when he was driving to the cottage after finkhing his shift, and that it was not he who placed it in the car. The next day, Monday, September 26, he showed it to Sinclair and placed it in the spare bedroom. Hay was to be released from the Centre on the following day, Tuesday, September 27. Gogan went with a friend to pick Hay up, a~ he had earlier agreed to do, and took him to the cottage. Hay told Gogan that officials at the Centre knew that the vacuum cleaner was missing and were looking for it. The Grievors were not aware that immediately before his release Hay had had a conversation with Michael Murphy, a security -4- officer at the Centre, as a result of which a search for the vacuum cleaner was instituted. Hay remained at the cottage overnight and was driven by Gogan to his home at Carp the next day, Wednesday, September 28. On that date Sinclair telephoned his father, purportedly to ask for his advice as to what to do about the vacuum cleaner. He did not reach his father, but the latter returned the call and spoke to Cogan, Sinclair having gone on shift at the Centre. As a result of that conve.rsation, Gogan and Sinclair took the vacuum cleaner and hose (but not the wand) to the home of Sinclair’s parents at Ottawa on the next day, Thursday, September 29. The investigation into the disappearance of the vacuum cleaner was taken over by Alexander MacMillan, an inspector attached to the Ministry. Having first telephoned Hay, MacMillan went with Murphy to Carp on Friday, September 30 and interviewed him. Based on what he was told by Hay, MacMillan interviewed Sinclair when he came on shift at the Centre later on the same date. At about 7:30 p.m. that evening, Sinclair was interviewed by MacMillan, Murphy and Constable Gordon Trimble of the O.P.P. to whom he gave a statement. Directed by Sinclair, the three investigators then drove to the cottage, where Sinclair turned over the vacuum cleaner wand to Trimble. Gogan, who was asleep in one of the bedrooms, was wakened by Trimble and gave a statement to him. Shortly after 9:00 p.m. the three investigators went with Sinclair in Trimble’s cruiser to the home of Sinclair’s parents in Ottawa. The vacuum cleaner was recovered there and taken to the O.P.P. office in Manotick. The Grievors were immediately suspended with pay for three days. On Tuesday, October 4, they were charged with possession of stolen property and on the same date they were suspended without pay for 20 days. On the expiration of that period they were suspended without pay for a further twenty days. They were dismissed from employment on Monday, November 7,1983 by letter of that date. -5- The reasons given for the dismissal of Gogan are that he knowingly removed and retained the vacuum cleaner in his possession and that he contravened a ministry policy that prohibits socializing or associating with ex-inmates. The reasons given for the dismissal of Sinclair are that he knowingly concealed the vacuum cleaner and that he contravened the ministry policy mentioned above. Hay and Sinclair’s father were not charged in connection with the vacuum cleaner incident and neither was called to testify before the Board. An excerpt from a ministry Manual of Standards and Procedures entitled “Staff Conduct and Deportment” filed in evidence,states that if a staff member engaging in a personal relationship with an ex-inmate not in the line of duty feels that it could be construed as a conflict of interest or a breach of security, he must discuss the situation with the appropriate official. It must be noted, first, that this is not a prohibition of relationships with ex-inmates. As well, we question that this policy, although of general application on its face is, or can reasonably be, applied in practice equally to all classifications of correctional institution employees. Certainly, scrupulous adherence to the policy would rightly be required of employees whose sole, or primary, responsibility ls custodial, such as correctional officers. But we have considerable doubt that employees whose responsibilities are only incidentally custodial can be held to that high standard. It seams to us highly unlikely that such exployees would be either expected or required to have any contact with ex-inmates in the line of duty; and the risk of a conflict of interest or a breach of security arising from any contact not in the line of duty would, we think, be minimal. 3 5 -6- The policy was available at the Centre to be read by the Grievors and they were expected to read it, but there is no evidence before us that they received any instructions as to its application to them or, for that matter, as to their custodial responsibility. While they realized that they bore some measure of responsibility for inmates assigned to the steam plant, they did not equate their responsibility with that of employees having full-time responsibility for the custody and rehabilitation of inmates. They appear to have regarded themselves as being employed to provide their particular trade skills and not to have been aware of being peace officers as, by definition, are all employees of correctional institutions. These considerations persuade us that the expectations of the Ministry with regard to the observance of the policy in question were not effectively brought home to the Grievors. All of that being said, what distingujshes the present case is that the ex-inmate with whom the Grievors had contact was represented to the Board by both parties as having been directly involved in the removal of the vacuum cleaner from the Centre. For that reason, and notwithstanding the considerations described earlier, we are of the opinion that their contact with Hay constituted blameworthy conduct by the Grievers. The removal and the possession of the vacuum cleaner, the property of the Employer, can only be viewed as employee misconduct in the nature of a criminal act. The actions of the Grievors as described in the statements made by them to Constable Trimble and in their testimony before the Board are incompatible with the concept of innocent possession. We are satisfied that there is a preponderance of evidence going to show that the Grievors misappropriated and wrongfully retained possession of the vacuum cleaner. -7- Accordingly, we find that the conduct of the Grievors that led to their dismissals warranted disciplinary action by the Employer. The, question whether or not dismissal was an excessive penalty remains and is to be determined in light of the circumstances present and by weighing the respective interests of the Employer and the individual Grievors. The Employer may or may not have perceived some difference between the actions of Gogan and those of Sinclair but obviously concluded that both were deserving of dismissal. It is our opinion that they are not equally blameworthy. Dealing first with the case of Gogan, while the evidence does not establish that the removal of the vacuum cleaner from the Centre was premeditated, it does, at the very least, support the view that Gogan’s mind was open to that prospect. It was his equivocal response to Hay’s question that led to the placing of the vacuum cleaner in his car; he became aware that it was in the car but did not either return it or report that it was in his possession; he took it to the cottage and stored it there; and he had the conversation with Sinclair’s father which resulted in its transportation to the Sinclair home in Ottawa. In addition, he initiated the contact with ex-inmate Hay by picking him up on his release from the Centre and taking him to the cottage. We believe that it would be prejudicial to the interests of the Ministry and injurious to the reputation of the Rideau Correctional Centre to reinstate Gogan in hi former employment. We find that dismissal was not an excessive penalty in the circumstances. The grievance is denied. As we view the evidence, Sinclair’s involvement in the incident in question began with the revelation by Gogan that the vacuum cleaner was at the cottage. Obviously, he should not have allowed himself to become a party to the unlawful possession of the vacuum cleaner. Once -B- involved, he made no attempt to extricate himself or to undo what had been done. He was cooperative with the investigators at a stage when, although he was under suspicion, his role in the incident was not known., He readily gave a statement to Constable Trimble and acknowledged his mistake in becoming involved. He did not initiate the contact with ex-inmate Hay and it would seem to us to be somewhat unrealistic to expect that he would have either ordered Hay to leave the cottage or left himself. We do not believe that Sinclair's conduct was such that public confidence in the integrity of the Ministry will be jeopardized or what the mission of the Rideau Correctional Centre will be compromised by his reinstatement in his former employment. We find that dismissal was an excessive penalty in the circumstances. It is hereby ordered that he'be reinstated in the position held by him at the time of his dismissal with effect from the date of this decision, without compensation from the date of his first suspension without pay to the date of this decision, but without loss of seniority. The Grievors also filed grievances arising from the two periods of suspension without pay imposed by the Employer. Counsel to the parties requested that those grievances be dealt with by the Board in its decision on the grievances arising from the dismissals. In view of the disposition herein of the grievances arising from the dismissals, those grievances (27184, 28184, 35184 and 36/84) are hereby dismissed. DATED at Consecon, Ontario, this 29th day of August, 1984. "E. McVEY" E. NcVey, Member /ch "L. TURTLE" L. Turtle, Member