Behaviour on its own warranted lesser discipline, but agreement referred to specific policies
An Ontario worker’s inappropriate and unprofessional behaviour while under a last-chance agreement justified dismissal, the Ontario Grievance Settlement Board has ruled.
The worker was employed with the Ontario Ministry of the Solicitor General as a correctional officer at the Central North Correctional Centre (CNCC), a maximum-security prison in Penetanguishene, Ont.
The worker was disciplined for misconduct and, following a grievance, the union reached a settlement on July 17, 2019, that would allow him to remain employed under a last-chance agreement. The settlement prohibited him from working as a corrections officer, so he was placed in the position of laundry worker.
The last-chance agreement stipulated that, until Feb. 7, 2022, his employment would be terminated if he breached any of several policies, including use of force, the respectful workplace policy, the workplace violence policy, and the Statement of Ethical Principles.
Verbal altercation
On Sept. 5, 2019 - about three weeks into the last-chance agreement – the worker was approaching the loading dock of the laundry area while wearing black clothes. About 15 inmate workers were sitting on the loading dock and made comments about him such as “the man in black” and “dog the bounty hunter.”
The worker was upset and asked “who is the tough guy?” He said he felt bullied, so he later tried to find the workers once they had been brought inside. He was unable to, so he looked for his manager to address the matter. The manager wasn’t there and neither was his supervisor, so he spoke to the kitchen supervisor.
The kitchen supervisor told the worker that “inmates had to be kept in line” and gave the worker permission to tell them that if they didn’t stop “chirping” they would lose their kitchen work privileges.
The worker went into the kitchen and told the six inmate workers there that he wouldn’t tolerate disrespect to a member of staff. He then said “the next person who chirps staff is going to be fired on the spot.”
A few minutes later, the worker apologized to the kitchen supervisor for being too forceful with the inmates. He apologized again the next day.
The worker told two co-workers about the matter, and one said that they had not been chirping him. However, the worker said that it was chirping to him because they hadn’t established a rapport that could allow such banter.
Worker upset
The worker remained upset, particularly since he felt that other employees didn’t back him. He called his supervisor at home that evening and asked if he should write an occurrence report, but the supervisor said no.
On Sept. 13, the supervisor noticed that the worker seemed off and asked him what was wrong. The worker reluctantly said that he was still upset about the loading dock incident.
According to the worker, the supervisor brought up the incident and told him that he had nearly “incited a riot on that day.” The supervisor said that other staff had had negative reactions about the worker’s conduct, which shocked the worker and made him angry. He asked to go home and he was allowed to.
Profanity directed to co-worker
However, after the worker left the supervisor’s office, he spoke with one of the co-workers who had witnessed the loading dock incident. The co-worker said that he had heard the worker swearing during the incident. The worker denied it and asked if he was going to “rat me out.” He then told the co-worker “You all suck inmates’ a------s.” The supervisor came out of his office and said that he couldn’t speak to people that way.
The supervisor reported the incident, noting that the worker was a large man whom he found intimidating. The worker was suspended pending investigation into allegations that he behaved inappropriately and unprofessionally on Sept. 5, failed to notify a manager or correction staff about inmate misbehaviour, and made unprofessional comments in the presence of co-workers
On Dec. 4, management met with the worker so he could provide additional information to consider before discipline was determined. The worker agreed about what he had said to the inmates on the loading dock, but he didn’t think he said anything threatening. He also said that he hadn’t received training on how to deal with inmate workers and he sought out his supervisor and manager. He denied making inappropriate comments to co-workers.
One week later, on Dec. 11, the worker was dismissed for breaching the ministry’s Code of Conduct and Professionalism as well as its Statement of Ethical Principles. The termination letter stated that his disciplinary record, lack of remorse and accountability, lack of honesty around the incident, and the seriousness of the offences were sufficient to justify termination, as well as the fact that any of the incidents on their own would trigger dismissal under the last-chance agreement.
The worker grieved the termination.
Unfamiliar with new job
The board found that the worker was new to the laundry worker position and had not been given any instruction regarding the relationship between laundry and kitchen staff and inmates. It also found that the worker had an honest belief that the inmates had acted inappropriately and inmates should “chirp” staff.
In addition, the board accepted that the worker sought the manager and supervisor before speaking to the inmates, but they weren’t available. The worker then went to the kitchen supervisor, who gave him permission to speak to the inmate workers and encouraged him to make the threat of dismissal to them, said the board, adding that the worker didn’t call them names and spoke firmly, but fairly.
The board determined that the worker didn’t do anything “knowingly wrong” when he spoke to the inmate workers in the kitchen, as he had not been trained on how things worked and didn’t know he wasn’t supposed to speak to inmates directly without permission. The fact that no other staff wrote an occurrence report until the worker’s interactions with the supervisor and co-worker on Sept. 13 supported the idea that there was no serious misconduct, the board said.
The board found that the evidence supported the fact that the worker made a reference to his co-worker “ratting” him out and swore at him. He was upset by the supervisor bringing up the earlier incident and somewhat exaggerating the seriousness of it. The worker was also aggravated by the co-worker hanging around while he was speaking with the supervisor, said the board.
However, the evidence showed that the worker escalated the situation when he became angry and made the vulgar comment to the co-worker. This comment was not just swearing; it also accused the worker of preferring inmates to staff and was a reprisal for the co-worker suggesting that he would report him, the board said.
The board noted that the loading dock and kitchen incidents would likely have warranted minimal discipline, but since the worker was under the strict terms of a last-change agreement, they were more serious. In addition, the vulgar comment to the co-worker breached the Statement of Ethical Principles, which breached the agreement and set termination as the appropriate response. See Ontario Public Service Employees Union (Wade) v. Ontario (Solicitor General), 2023 CanLII 28231.
