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HomeMy WebLinkAbout1984-0557.Tyynela.84-12-17THE ROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between : OPSEU (John W. Tyynela) Before: 557/84 IN THE MATTER OF AN ARBITRATION Under - and - Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer For the Grievor _’ For the Employer: Hearings: E. B. Jolliffe, Q. C. Vice Chairman I. J. Thomson Member G. A. Peckham rember P. Sheppard Grievance Officer OPSEU P. Radley Staff Relations Officer Personnel Branch Kinistry of Correctional Services September 27, 1984 October 29 and 30, 1984 - 2 - DECISION Mr. John ~'W. Tyynela served as a "casual" correct- ional officer at the Monteith Correctional Centre from July i 21, 1982, to April 21, 1984, when he was released. He has grieved that his "dismissal and release... is without just cause. " AS a so-called "casual," the griever was a member of the "unclassified service." The effect of Section 1 in the Public Service Act is that he was a "public servant" but not a "civil servant," the result being that he fell within the bargaining unit represented by the Ontario Public Service Employees Union. As such, however, his rights were Only those provided by Article 3 in the applicable collective agreement, which has the rather inaccurate heading: "Seasonal or Part-Time Employees." The true scope of the Article is defined in 3.1 as follows: 'Ihe only terms of this Agreement that apply to employws who are not civil servants arc those that are set out in this Article. Actually, apart from seassonal and part-time employees, certain members of the unclassified service - 3- (hereafter called "casuals") serve fu.ll-time (that is, on the same schedules as classified civil servants) as Mr. Tyynela in fact did from May, 1983, to February, 1984. Such full-time casuals continue as unclassified public servants unless and until appointed to the classified staff, when they become "civil servants." Article 3.14 makes clear that among the rights of unclassified employees are those set out in Article 27, so that they may resort to the grievance procedure, including the right to grieve against dismissal. In any event, the right to grieve against dismissal is given to employees by Section 18 of the Crown Employees Collective Barqaininq Act, and in that Act the term "employees" (as defined in Section 1) includes members of both the classified and the un- classified services. Nevertheless, the statutory and contractual provisions relating to casuals have given rise to certain differences of opinion which should be mentioned before discussion of the merits of this particular case. Article 3.11 (formerly Article 3.3) provides as follows: - 4 - 3.11 Employment may be terminated by the Employer at any time with one (1) weeks's notice, or pay in lieu thereof. Faced with such language, the Board's panel in Boucher and Trumbley 218/78, chaired by Professor Prichard, gave a majority decision in which it was said: In this case we are confronted with the bold language of Article 3.3 of the collective agreement which, as we have interpreted it, provides for only one week's notice or one week's pay in lieu of notice when a casual employee is terminated. Whatever our personal views as to the substantive adequacy of such a provision as a form of job pro- tection, particularly as it applies to an employee who has in effect served for seven years, it would, in our view, be inappropriate for us to disregard the parties' intentions as expressed in Article 3.3 in considering the appropriate remedy. m the face of the collective agreement, the parties have turned their minds to the degree of job protection to be afforded casual employees and have reached agreement on the question. The term "termination" is given no limit in Article 3.3; it is not limited to situations in which there is no longer work to ke performed. In normal usage it should be taken as including a dismissal and there is nothing in the collective agreement to oust the normal interpretation. Thus, one its face, Article 3.3 specifies the scope of protection to be accorded casual employees. When read with section 17(21(c) and section 18 of the Crown Rnployees Collective ‘Bargaining Act, it must be taken to mean that the parties, after considering the situation of casual employees, saw fit to agree that they could be terminated upon one week's notice. Thus, in attempting to pay heed to the parties' expressed intentions while at the same time fulfilling our 'statutory mandate, we find that Article 3.3 should guide us in determining the just and reasonable remedy. We therefore find that the just and reasonable remedy in all the circumstances -5- (including the terms of the collective agreement) 1s one week's notice or one week's pay in lieu thereof. In this case, the griever received the requisite notice and she is therefore not entitled to any further remedy in this respect. Nevertheless --- in that case --- as the employer had adduced no evidence whatever to justify termination, the Board held ion the basis of rights established by the LZLQ.!U Emolovees Collective Barqaininq Act) that <he grifvor ' s record should be cleared, as follows: 'Ihe Ministry in the case before us utterly failed to substantiate its conclusions and thus they must be found to Ix devoid of merit as all allegations of inadequacy and impropriety were denied by the griever . 1Ihe griever is therefore entitled to a remedy in the form of an order that the Ministry correct the griever's personnel file and employment record so to eliminate any conclusion that the griever's z&duct warranted dismissal in October, 1978. Further, the Board emphasized that it was for the Board and not the employer to decide whether the termination could be characterized as disciplinary or non-disciplinary, a question which "could only be decided in light of the evidence." dur attention has been drawn to a more recent case in which it appears that the ultimate result is not known as -6- of this date. In Killer and MacPhail 530-531/82, a panel of this Board found there had been no just cause for the termination of two casual employees at the Cornwall Jail. Nevertheless, adopting the same reasoning as in Boucher Andy Trumbley, the Board concluded that the only possible remedy was that "the employment records and personnel files of each Grifvor shall be adjusted to delete any reference to dismissal..." and that "the provisions of Article 3.11 prevent the Board from reinstating the Grievers and also prevent the Board from making an award for lost wages." A very different view of Piller and E%CPhail was taken by the Divisional Court (Craig, Holland and Boland JJ) on March 21, 1984. In the judgment delivered by Craig J., it was said: me collective agreement distinguishes clearly between "dismissal" and "termination". (See Art. 3.11 and Art. 27.6.2) In addition, the Act (Crown Employees Collective Bargaining Act) provides for grievance in the event of dismissal (Sect. U(2) and the Arbitration of disputes by the Grievance Settlement Board (S.19 (1)). Employment was terminated by notice and the Board found as a fact that termination was a dismissal without cause. ‘The Board then came to the question of ~'remedy" and held that Art. 3.11 prevented it from reinstating the Grievers and also from making an award for lost wages. .- -7- In our opinion the Board gave Art. 3.11 an interpretation which is patently unreasonable in so doing (the highest possible test); that is in the light of Art. 27.6.2 of the Collective Qreement and Sections 1812) and 19(l) of the Act. It is our view that the Board was not limilxd to a remedy of 1 week's pay or 1 week's notice by Art. 3.11. Also it is our opinion that, in holding that it could not fashion a remedy beyond Art. 3.11, the board impliedly erred in jurisdiction pursuant to the Act. lhat is the Act clearly provides a discretion to fashion a remedy for the applicants in the circumstances. me Ebard recognized the distinction between "dismissal" and "term~na~tlon" in finding dismissal without cause, but when it turned its attention to remedy, it indicated that termination included dismissal.. We would add that the Board cannot amend the Collective Agreement (Art. 27.12). The application is therefore allowed; the award herein is set aside and the matter is remitted to the Board to be dealt with according to law. costs to the applicant. On May 28, however, the Court of Appeal. after hearing counsel for both parties, granted the employer leave to appeal. Notwithstanding the conflicting views quoted above, this panel of the Board is of the opinion that the grievance of Mr. John Tyynela must be dealt with on its own merits and is not necessarily affected by the results in other cases. ” .4 - 8- The griever's Case is that his "dismissal and release... is without just cause." The employer's position is equally clear: that there were valid reasons for terminating the services of the griever --- by whatever name that action be described. The question of a remedy, which was the question discussed in both Boucher and Miller,, does not arise unless and until it is found that there was a dismissal without just cause. In our view, it is for this Board.to determine whether the employer's reasons were valid or invalid, that is, just or * unjust. Our power and duty to make such a determination has not been questioned in previous decisions of this Board or the Divisional Court. It must first be pointed out that the griever had .no disciplinary record in the usual sense. He had never received a suspension or even a written reprimand. Unfortunately, no written appraisal was ever made during his service of approximately 21 months. In that period he was a part-time casual for almost 13 months, during which (as provided by his contracts) he was to work no more than 24 hours per.week and often much less. In fact (according to Exhibit 25) from August, 1982, to April, 1983, inclusive he worked an average of only eight shifts a month, or less than - 9- two'shifts per week, i.e. less than 16 hours. Thus, oppor- tunlties to observe his performance were more limited than if he had been employed full-time throughout. The griever was appointed to the unclassified staff July 21, 1982, on the recommendation of Lieutenant R. Johnston, training officer. He received some rather elementary instruction and of course was told to read standing orders and other documents. There is no evidence of any complaints about him before May, 1983, when he accepted a new contract under which his "normal hours" were to be 40, effective from May 25 to August 24. There are two versions of the document. Exhibit 3 is signed by Mr. D.S. Smith (now Superintendent) on behalf of Mr. W.E. Peters, Superintendent at that time. Added below the signature are the following words: I4 To fill vacant position left by J. Smith who 1s acting for G. Fontaine (off sick)." In cross-examination, however, Mr. D.S. Smith was shown Exhibit 11, which is identical to Exhibit 3 except that it does not bear the words added to Exhibit 3, which probably represent an afterthought in the office. -lO- I" August the 40-hour arrangement was extended to November 24 by Exhibit 28, and in November it was again extended to February 24, 1984, Exhibit 29. It is in the usual form for a full-time casual, stating: Normal hours of work not to exceed 40 per week. Services may be terminated on one week's notice by either party. It also gave the names and addresses of the OPSEU Area Representative and the Monteith Local President. Mr. Tyynela signed opposite the words "I accept the above terms and conditions." Notwithstanding the November "contract," the griever two months later was notified of a radical change. Dated January 26, 1984, and signed by Mr. L. . Chevrier, Acting Senior Assistant Superintendent, Exhibit 26 simply stated: Please bz advised that effective February 6, 1984, your contract will be adjusted from 46hour per week to 24-hour per week. The employer's witnesses have explained that the griever's services as a full-time casual were no longer -. - 1-l - needed because a full-time position in the classified service had recently been filled. In view of the use made of other casuals, it is apparent that the real reason for the change was dissatisfaction with the griever's words and conduct, evidenced by a number of written complaints from senior members of the staff between December 29, 1983, and January 18, 1984. On February 1 Mr. Tyynela grieved in Exhibit 13 that the reduction of his hours was "a disciplinary act without just cause." He was told in the reply from Lieutenant E. Bouchard, dated the next day, Exhibit 13A that: It is the prerogative of management to schedule casual employees. As a 24-hour casual Mr. Tyynela had no fixed schedule and worked only when called. In February he had five shifts and in March he had eight. In April he worked two shifts before being "released" by a letter, Exhibit 8, dated April 17 and delivered to him by the staff on April 26. The letter also said: In keeping with the collective agreement, Article 3-11 (sic) your release will be effective one week from this date. - 12 - It must be mentioned that Exhibit 7, a "contract" signed by the Superintendent and by Mr. Tyynela on March 16, 1984, was stated to be effective from February 6 to December 31, with the usual proviso that "services may be terminated on one (1) week's notice by either party." This brings us to a review of the reasons which- led the employer to terminate the services of the griever. Montelth is among the smaller institutions maintained by the Ministry of Correctional Services, The jail is theoretically "maximum security," and accomodates 26 temporary detainees. Separate but connected with the jail building is the minimum security Cofirectional Cen tre for about 120 inmates, who have work on a 900-acre farm, including certain logging operations. Superintendent D.S. Smith testified that he has 38 Classified Officers, four 40- hour casuals and five 24-hour casuals, although there are variations from time to time. The Superintendent meets with a number of his senior staff each morning. From them he learns of incidents involving inmates or officers. He had little or no contact with @he griev'dr, but did receive a telephone call in April, - 13 - 1984, when the griever complained he had been "blacklisted" and was not getting sufficient work as a .24-hour casual. The Superintendent's decision to terminate was really based on information received from supervisors and experienced officers. (1). August 8, 1983 Exhibit 27 is an "Occurence Report" made by the grievor to Mr. Peters (then the Superintendent) on August 8, 1983, after he had been a 40-hour casual for several weeks. It was headed: "inmates' poor attitude towards officers" and stated: Sir: At 2230 hours.t?onday of above date, a number of inmates in #C Dorm had failed to clean of (sic) their locker tops and put away their clothes after the order had been given at 2235. I entered the dorm and asked them what was wrong with them. When they still were slow to clean up I told them that four year old children ware more cooperative. b!r . Tyynela went on to name four inmates and said they "all wrote insult complaints regarding my deportment." In his testimony, the griever also indicated that he thought inmates did not show sufficient respect for their custodians. - 14 - (2) December 29, 1983 OKl this occasion the griever was on duty alone at the jail during the night shift. He seems to have been under the indirect supervision of Sergeant Norm McKenzie whose primary responsibility kJa.9 for "Admissions and Discharges." Neither he nor the lieutenant functioning as shift supervIsor worked close to the jail. The McKenzie report of December 29 to Superintendent Smith, Exhibit 4, was as follow: Sir: &I Dec. 2843 Mr. Tynela (sic) was assigned to work in the jail from 1620 hrs. to 2300 hrs. Between the hours of 1900 and 2230 hrs. I had go to (sic) the officers corridor and quiet prisoners down by my presence & by talking to them on several occasions. At 2150 hrs I entered each cell for a security check, at 2200 hrs Mr. Qnela blew his whistle and ye&xi Blues of the PJ's on, as he went to the holding unit to tell them the same thing; prxoners in #l & 2 started whistling & yelling. I again went to the corridor to quiet them down. At 2230 hrs I shut off all lights & turned on the nite lights and then I left for the duty office. Mr. 'Iynella phoned at 2245 hrs. and stated that the night lights were not working and that there was unrest in the jail. I went to the jail and could hear yelling as climbed (sic) the stairs. I went in and had to threaten to lock up several prisoners if they did not quiet down, which they .did prisoners (sic) asked me to get Mr. 'Qnella off their backs. Earlier Mr. 'Qnela made the statement that we should put a trough in each cell and feed them pellets, as we were treating them too good. Also . L./ - 15 - stated the system has failed and that we should try something a little more harsh without being inhuman. It appears that Mr. 'I'ynela's approach to the inmate population leaves a lot to be desired. In his testimony, Sergeant McKenzie was even more emphatic. He said he had never experienced such inmate hostility to one officer. When discussing the incident with the shift supervisor, he gave notice he would refuse to work again with the griever. The griever received no more assignments to the jail. At the Correctional Centre of course he worked with other officers. In his testimony the griever gave many more details about the incident. He said inmates would not comply with his request that they stop smoking and stop making a noise. He turned off the TV 15 minutes early (as he knew others had done) and someone retaliated by throwing a cup of water at him. When the Sergeant came, he pointed out that the griever had no authority to impose discipline by turning off the TV before the scheduled time, but the Sergeant a150 cautioned inmates about their rowdy behaviour. (3) January 5, 1984 On this date, Mr. R.T. Johnston,' the Staff Training Officer, reported to Mr. Smith a conversation two weeks i . . . . . - 16 - earlier. This report may have been inspired by Sergeant McKenzie's complaints, because the Superintendent was certainly interested in such complaints. The Johnston report, Exhibit 18, is as follows: Sir: Ch the afternoon of Ccc. 22, I was going over some staff training areas with Mr. Qynela when he told me that he felt very strongly that the Correctional Services were too easy on the inmates. Hs said the inmates are treated to (sic) good. He also stated the inmates should be made to work 12 hour days, then fed a pill from a trough which he claims would be sufficient for them. I counselled him on these areas stating that we must follow ministry Policies, and that our personal feelings could not overrule our judgement in making decision when handling inmates. Bill felt quite strongly about what he said but said he would try not to let it effect his work at Monteith. In his testimony, the griever declared he did not allow personal opinions to affect his work, and he always tried to be loyal to the policies of.the Ministry. He made clear, however, that he believes inmates are unduly pampered, that in particular they are fed better than many other people and that society cannot afford it. He had simply told Mr. Johnston that there were cheaper but humane methods of feeding inmates; such as "some kind of mechanical or pellet form of feeding." ,. . . ../ - 17 - (4) January 11, 1984 On this date, the griever addressed a report to Mr. Smith that he had heard an inmate named Lortie "making smart remarks about me, so I ordered him to pile up some chairs in the day room for something better to do. me refused. I( The griever then described another incident in which Lortie disobeyed an order and "he was very upset at me, another show of disrespect toward authority." (5) January 12, 1984 Exhibit 22 is an "Occurrence Report" made to Mr. Smith by Sergeant McKenzie, as follows: Sir. ~3 the above date and time while waiting for a new arrival to shower and dress, I over heard a conversation between Mr.'Qnella and inmates Lot-tie Peter and C&X- Daniel, regarding the feeding of inmates by trough & chicken feed, and also of shackaling (sic) them to beds when they are bad. Both inmates were upset at his remarks. The griever's version is different. During a "clothing change" the inmate Gour had comp.lained about the institution, saying the books were "trash" and the food was "garbage. " When the griever took issue with these remarks "they became upset and accused me of something I had not said. Gour alleged I'd mentioned shackling and feeding on a - 18 - previous occasion." Questioned about this, the griever said: “No --- not in that manner." Questioned further, he said that in another room at the Correctional Centre he had told Gour and Lortie that in other countries they would not be treated so well. 'I I felt forceful persuasion was necessary, so I told them that if I had my way and if they were disobedient they'd deserve to be shackled to their beds and fed pelleted rations from a self-feeding device. I pointed out I was not recommending animal rations but nutritious rations." The griever said the conversation was about a month before the one reported by Sergeant McK'enzie and "I felt they were adding to my statements.' (6) January 18, 1984 Exhibit 19 is the following brief report to the Superintendent from the training officer, Mr. Johnston: Sir. ch Jan 18, 1984 while I was on my way to the back door to supervise gangs out (1255) I noticed CT. 'Pyynela escorting N/A's from the dining hall and he was approximately l/2 way up the line with . no other officer with him. I stopped the group and told Mr. Tyynela to move to the back of the group he was escorting. Mr. Tyynela has been instructed how to escort inmate proprly. ” . -. - 19 - Reports on this incident were also filed by Mr. I J.V. Stevens, Exhibit 15, and a member of the kitchen staff, Mr. M. Sampson, who said: MT. TJnnella brought 10 N/A.s down to the dinning r-corn and sat them down at a table not set up. We allready had a table set up on the opposite side of the dinning room. Mr. Goslon came down to the dinning & told him what do.[sic) Line them up & get their meals. After the meal Mr. 'Tynnella came to the kitchen and 'asked for 3 men to clean that table. But he left the N/A.s sitting at the table & told my men to clear the table. Mr. Reirner went out & told him to get the men up & then clear the table. He then of all things sat them down at another table. He was then told to'move them on to the cell area for change. He did this but had 4 men ahead of him & 6 men behind him. He was told to get his men ahead of him so he could see them all. The N/A's mentioned above were newly-admitted inmates brought to lunch later than others, which probably di,sturbed the routine of the kitchen staff. Mr. Tyynela has admitted he knew that in escorting inmates his place was at the rear --- where he could keep them all in view. ,,- . - zo- (7) January 27, 1984 According to the testimony of his supervisors, the griever himself requested an interview on January 27 and said he had been accused of nearly causing a riot. Further, according to Sergeant McKenzie, Exhibit: 21, he asked "what was the use of having an ICIT team," to which the Sergeant replied that the ICIT (which is a Crisis Intervention Team) "had nothing to do with the conversation at hand." On or about the same date the griever was advised by Lieutenant Chevrier that he was being reduced from 40 hours to a maximum of 24 per week effective Febuary 6. As previously mentioned, he worked very few shifts thereafter. It is apparent that by this time management was convinced the grievor could never adapt to the requirements of work as a correctional officer. In the autumn of 1983 he had competed for a vacant classsified position at Monteith. This was of special importance to him because he had hoped for an assignment to the farm operations at the Correctional Centre. As a graduate from the University of Guelph in Agriculture, and having had some experience as a farmer, he thought himself qualified for such an assignment but was told he needed custodial experience. In the competition, - 21 - - I the selection board gave him a low rating, Another compe- l tition was held later and the griever applied again. The result wa.5 a letter from Mr. B. Larche, Acting Deputy Superintendent, Exhibit 14, which summed up management's view of Mr. Tyynela, as follows: Please be informed that you will not be interviewed for the position of Correctional Officer 1. ch the last competition your showing did not meet with the standards that are acceptable to our Ministry. Since the competition, you were counselled on your outspoken feelings on how to handle and treat inmates. A short time after, while on a tour of duty in the jail setting, you had the same approach with the inmates of that setting. 'Ibis caused problems with the inmates and their conduct was getting out of hand. You had to get assistance in order to restore peace and quiet. Q3 January 18, 1984, once again you wze counselled re., your approach to inmates. This approach is not acceptable and could become a security problem. A marked improvement is expected and failing this it could result in the termination of your contract. Mr. Tyynela presented a grievance on February 1, but it was rejected the next day by Lieutenant E. Bouchard who simply said: "YOU were not selected because YO"lT performance was not satisfactory and you had done poorly on your last interview." - 22 - Superintendent Smith testified that the position of one 40-hour casual became redundant in February because a classified position had been filled. Among several 40- hour casuals, the griever was considered to be the least qualified, and for this reason he was reduced to the 24-hour level again. Early in April the griever telephoned Mr. Smith complaining of discrimination. The Superintendent told him the staff had difficulty reaching him because he had no telephone at his farm. The qrrevor, on the other hand, con- tends that supervisors knew he could be reached by calling a neighbour or by calling his wife at her place of work. He could not afford the installation cost of $5,000 for connecting telephone service to his farm. Mr. Tyynela complains --- not without reason --- that in his case supervision and training had been fragmentary and inadequate. Casual employees in 1982 and 1983 never received performance appraisals, but Mr. Smith states that the mistake has now been corrected. Apparently recognizing his limitations, the griever wrote Lieutenant Johnston on March 22, 1984, Exhibit 20, thanking him for certain training received and urging that "more training is needed immediately." He was probably right. the selection board gave him a low rating. Another COmpe- tition was held later and the griever applied again. The result Was a letter from Mr. B. Larche, Acting Deputy Superintendent, Exhibit 14, which summed up management's view of Mr. Tyynela, as follows: Please be informed that you will not be interviewed for the position of Correctional Officer 1. Cn the last competition your showing did not meet with the standards that are acceptable to our Ministry. .I' Since the competition, you were counselled on your outspoken feelings on how to handle and treat inmates. A short time after, while on a tour of duty in the jail setting, you had the same approach with the inmates of that setting. 'Ihis caused problems with the inmates and their conduct was getting out of hand. You had to get assistance in order to restore peace and quiet. Ch January 18, 1984, once again you here counselled' re., your approach to inmates. 'Ibis approach is not acceptable and could baccme a security problem. A marked improvement is expected and failing this it could result in the termination of your contract. Mr. Tyynela presented a grievance on February 1, but it was rejected the next day by Lieutenant E. Bouchard who simply said: "You were not selected because your performance was not satisfactory and you had done poorly on *our last interview." . L -, - 22 - Superintendent Smith testified that the position of one 40-hour casual became redundant in February because a classified position had been filled. Among several 40- hour casuals, the griever was considered to be the least qualified, and for this reason he was reduced to the 24-hour level again. Early in April the griever telephoned Mr. Smith complaining of discrimination. The Superintendent told him the staff had difficulty reaching him because he had no telephone at his farm. The griever, on the other hand, con- tends that supervisors knew he could be reached by calling a neighbour or by calling his wife at her place of work. He could, not afford the installation cost of $5,000 for connecting telephone service to his farm. Mr. Tyynela complains '--- not without reason --- that in his case supervision and training had been fragmentary and inadequate. Casual employees in 1982 and 1983 never received performance appraisals, but Mr. Smith states that the mistake has now been corrected. Apparently recognizing his limitations, the griever wrote Lieutenant Johnston on March 22, 1984, Exhibit 20, thanking him for certain training received and urging that "more training is needed immediately." He was probably right. .’ :g \ V - 23 - The griever is 35 years of age, married, with no children. He graduated from Guelph University in 1972 and returned to the farm, which is 13 miles from the Correct- ional Centre. He~improved it but had financial difficulties and sought other work in 1982. Apart from two or three "cautions" his work at the Centre seemed acceptable, which he thought certain when he became a 40-hour casual. Mr. Johnston had ind ,icated he was too "familiar" with inmates and he therefore tried to be more "firm." (Mr. Johnston's version is that the griever went from one extreme to the other.) Mr. Tyynela conceded that some of his remarks to inmates had been unwise. He testified, however, that he feels "treatment of inmates is excessively luxurious," mentioning in particular the "recreational facilities with a sports program every day" and use of the gymnasium each evening. He believed there were more economical ways of feeding inmates "without going to such lengths," He referred to "a different menu every day" and also to "educational facilities." Mr. David Jenkinson was called as a witness by the grievor 's counsel. In 1983 he was President of the Local Union at Monteith and estimated he had worked on the same shift with the griever about 105 times, and directly with ,. e- i - 24 - kd the griever on about 35 shifts. He would have evaluated Mr. Tyynela as "firm, fair, flexible, undoubtedly inexperienced, competent, resourceful, compassionate." He did not express personal views to Mr. Jenkinson or suggest the treatment of inmates was too luxurious. At a meeting with Messrs, Lathe and Dixon, Sergeant MacKenzie had become flushed with anger and had to be restrained by Lieutenant Dixon. There was no , L response at that meeting to the explanations given by the grievor . Mr. Jenkinson said .at least three more casuals have been hired in 1984, Also called was Mr. J.E. Budge, an officer with nine years of experience. He said he had served with the grievor and rated him highly for being trustworthy, honest, fair and willing to learn from his seniors. Mr. Brydge had attended a social gathering in November, 1983, at which he heard Sergeant McKenzie denounce the griever in profane terms as a "preacher" and a "farmer" who was useless at the LA Centre. He heard the Sergeant making similar remarks at the Centre in December. In March, 1983, Mr. Brydge had written a lengthy report to Superintendent Peters complaining that several officers in the duty office had made very critical and unfair remarks about Mr. Tyynela, but in his testimony he could not recall who was present. He said that senior officers generally felt the griever's performance was ‘i’ * 25 - .3 inadequate, but he did not agree with them. He had been told: "YOU are a fine officer but you have a terrible tendency of always fighting for the underdog. Don't YOU worry about training; that's our responsibility." In March, 1983, he had been the Local Union's Chief Steward. In a !1984 meeting he challenged the validity of questions put to L i ‘d Mr. Tyynela by the selection board. He thought they were more-appropriate in respect of a management position. Another officer, Mr. K.C. Lee (now the Local President) emphasized the importance of appraisals -- from which he said he had benefited. After some years of training experience as a senior N.C.O. in the Army, he de- plored the failure to give adequate training and appraisals to casuals at Monteith. He is himself a member of ICIT and has taken courses in crisis management. He had advised Mr. Tyynela to be more strict with inmates and not to give them so much counselling. The grievor asked many questions but had never expressed personal opinions to him or criticized the administration. He thought that with experience Mr. Tyynela had achieved the correct balance between being strict and being "soft" to inmates. Mr. I.W. Gorlock, another member of ICIT, said he had known the griever since High School days and worked with - 26 - him at the Centre for more than 15 shifts. He had heard unfavourable comments about him, particularly from Sergeant McKenzie. but he himself had no complaints. He had never heard the griever express personal views, although many questions were asked. Mr. Gorlock had seen the griever relating well to inmates. He agreed that some officers did not like working with Mr. Tyynela. He was thought to be "d.ifferent." In this case, where performance is an issue, the testimony given by management witnesses is uniformly unfavourable to the griever and the testimony of other witnesses,is consistently favourable. They cannot all be entirely right --- or entirely wrong. More importance must be attached to the statements made by the griever himself. No doubt Mr. Tyynela entered upon a new career with the best of intentions and a desire to learn the job well. It is clear, however, that his expectations were unrealistic. He has said himself that he lacked experience in dealing with people. Perhaps for this reason he expected or demanded "respect" from inmates. When respect was not forthcoming, he felt offended and developed strong opinions - 27 - about what he regarded as the excessive luxury enjoyed by inmates. These opinions were most unwisely expressed to othe'r officers and also to certain troublesome inmates. The philosophy he explained in his testimony, as he may not realize, exemplifies the punitive approach rather than the rehabilitative approach which is the Ministry's policy. The two approaches are not easy to reconcile, and it was certainly beyond the capacity of Mr. Tyynela to do so. The griever has asserted that his personal opinions did not affect the work he had to do. On the other hand, he spoke his mind to both -Lortie and Gour, two of the inmates he had found to merit discipline, which is evidence that his work was in fact affected by his opinions. His remarks (un- doubtedly quoted later to other inmates) made clear that "if I had my way" insubordination would be punished in ways the Ministry does not tolerate --- but which he considered would be appropriate. In our view such extreme opinions and such rash remarks to inmates are not compatible with the functions of a correctional officer. They might be acceptable in many other jurisdictions, but not in Ontario. Notwithstanding his personal integrity and firm convictions about what Is right and what is wrong, we are satisfied that the griever - 28 - was not suitable or adaptable for duties at a Correctional Centre. The conclusion must therefore be that there were valid reasons for terminating employment which constituted just and sufficient cause for the dismissal of the griever. The grievance fails and must be dismissed. Dated at Rockwood this 17th day of December, 1984 Member