THUNDER BAY — After multiple hearings over the past five years, a staff member at the Thunder Bay Correctional Centre is being reinstated following his dismissal for visiting an inmate while on leave.
The corrections officer was terminated in October 2019 as the result of an internal investigation into an incident a year earlier that saw him go to a secure area of the female dormitories and have a brief conversation with an inmate.
He was alleged to have: given preferential treatment to the inmate, tried to get a colleague to cover up the visit, failed to declare a conflict of interest with the inmate, and been untruthful or failed to provide a full and accurate report about the matter.
The officer was told his actions had irreparably breached the trust of his employer.
In filing a grievance against his dismissal, the officer admitted the first allegation, but on his behalf the Ontario Public Service Employees Union submitted that TBCC administration had failed to demonstrate this warranted discharge, failed to prove the remaining three allegations, and failed to establish that any or all of them would justify discharge even if proven, particularly in light of mitigating factors.
The Ministry of the Solicitor General maintained it had proven each of the allegations and asked that the grievance be dismissed.
In the alternative, it submitted this was an appropriate case for damages in lieu of reinstatement, but that if reinstatement were ordered, it should be without back wages.
The parties presented their arguments in arbitration hearings before the province's Grievance Settlement Board.
While on unpaid sick leave and still under medication because of injuries suffered in an accident, the officer had driven to the TBCC in November 2018.
He said he planned to see a manager to deliver a required note from his doctor, check his work-related emails, say hello to co-workers, and pass a message on to an inmate at the request of two of her friends.
Wearing civilian clothes, he was granted access to a secure area where an on-duty corrections officer agreed to bring the inmate from her dorm so he could converse with her.
During a minute-long conversation, he said he informed her that her friends whom he had just met wanted her to know they were worried for her.
While he was on the premises, he neither checked his emails nor delivered a medical note to a manager, explaining that the person he preferred to hand it to was not there at the time.
Shortly after leaving, he texted "keep that between us" to the officer who had escorted the inmate from her dorm, to which she replied "I hope I don't get in shit."
He then responded "For what lol. I still work there. I came to check emails and just had a quick word with inmate no biggie."
However, the man did get into trouble for his actions that day, because an internal investigation ensued after his fellow officer decided she needed to report the incident to a superior.
In advocating for the fired officer, OPSEU argued his visit with the inmate resulted from a brief lapse in judgment and a "snap decision" to deliver a message from her friends to her directly and in person.
It also maintained the main purposes of his trip to the correctional centre were to deliver the medical note and to check his work emails, which he could not access from home.
OPSEU said the officer was on medication and 'scatter-brained' at the time of the incident
The union said that at the time, the officer was taking medication that left him "not well, scatter-brained, in a fog," and that the content of the message to the inmate was not nefarious.
In a decision released last month, the arbitrator concluded the employer, for the most part, had proven its allegations against him, and described his visit with the inmate as a serious lapse in judgment.
"It should have been obvious to him . . . that visiting an inmate in plain clothes while off duty would both appear to be and constitute preferential treatment," he wrote in his decision.
He found the officer's request to his colleague "to keep that to yourself" to be the most troubling aspect of the incident, but said he was mindful of the fact the message was sent right after the man had made a "panicky" departure from the TBCC in response to the sudden onset of a symptom related to his medical condition.
The arbitrator also noted there were no further attempts to conceal the visit, leading him to conclude this was "a single and momentary instance of 'Code of Silence' behaviour."
The union emphasized the officer had almost 14 years of discipline-free service, something the arbitrator took into account.
He said he believes the officer has rehabilitative potential, and that his behaviour falls within the range of misconduct that can be addressed through progressive discipline rather than dismissal.
The grievance by the officer and OPSEU was therefore allowed in part, resulting in an order that he be reinstated effective 18 months after the date of his termination.
He was also awarded $5,000 in damages for a breach of his representation rights that occurred at one point during the internal investigation.
The parties agreed the decision deals only with the appropriateness of discipline, and that monetary consequences of reinstatement are still to be discussed between them.
The arbitrator observed the matter has taken "an unusually long time" to complete for a variety of reasons, including the pandemic.
