GSB#2011-2918

UNION#2011-0582-0062

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Weber)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Barry B. Fisher

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Jonathan Rabinovitch Ministry of Government Services Labour Practice Group Counsel

HEARING

January 25, February 14, April 2 & 23, 2013.

Decision

Introduction

1This case involves the discharge of a fixed term Correctional Officer from the Toronto East Detention Centre.

2The Grievor commenced employment on June 24, 2007. He was put on paid suspension on July 29, 2010 and was terminated on November 7, 2011, with 23 calendar days left on his contract.

3The Grievor was terminated for allegedly smuggling contraband (alcohol and cigarettes) into the institution and selling it to an inmate. He denies the allegation. It is also alleged that he lied to the investigator about his involvement.

4The Ministry conducted a lengthy investigation and in the end they terminated two CO’s, the Grievor and CO #1. CO #1 also filed a grievance but his matter was resolved.

5The parties have agreed that I am to first determine liability and then if I need to deal with remedy, we will convene a new hearing.

6The Union is not seriously contesting that if I find that the Grievor did in fact smuggle contraband to an inmate that discharge was the appropriate remedy.

7The Union also admitted that the Grievor was aware of the absolute prohibition on selling contraband to inmates.

8Although the Employer filed in evidence the Investigation Report prepared by Tony Ruggiero, Inspector, CISU, I have been careful to only utilize this report for limited purposes. The evidence collected by Mr. Ruggiero from witnesses is pure hearsay in these proceedings in so far as they relate to the truth of the matter asserted. I have therefore not referred to or even read those interviews of witnesses who did not testify in these proceedings. The transcripts of the interviews were properly used as a basis for putting to witnesses in this arbitration their prior statements. I have also utilized the report in relation to the argument that the photo lineup conducted by Mr. Ruggiero was seriously flawed as these issues relate to the conduct of Mr. Ruggiero, who was a witness in these proceedings.

Review of Relevant Testimony

Testimony of Inmate J.

9The only direct witness called by the Ministry was Inmate J. Inmate J was incarcerated in the institution from March 29 to August 4, 2010. He shared a cell on Block 4C with Inmate S.

10Inmate J testified that he approached the Grievor and offered him money if he would bring him alcohol and cigarettes. The parties agreed on a price of $500 to be paid by someone on the outside to the Grievor at a location that he suggested, namely the LCBO at Eglinton and Brimley. Inmate J and Inmate S requested that he put the alcohol in empty institutional shampoo bottles. He was to put the shampoo bottles and the cigarettes at the doorway in the range on top of the ledge. At the time, Inmate J was a cleaner, so he had access to the range.

11In his interview with Mr. Ruggiero, which he adopted in his arbitration testimony, Inmate J went into more detail. Inmate J said that he approached two CO’s. He did not know their names. He described one of the CO’s as having the following physical characteristics:

a tall blond guy

big nose

straight hair

short spiky hair

looked like a boxer

balding

12Inmate J first approached CO #1 and offered him $1,000 for “a bottle of booze and some smokes”. Inmate S was the person actually financing the transaction. They agreed that the money transfer would take place outside the jail by CO #1’s car, a black Jeep Laredo with a specific license number. He said he then later saw CO #1 meet up with Inmate S’s contact and get into a Mercedes and drive away together. This event took place at Manville Auto which is within view of his cell when he was in lock up.

13The next day they received from CO #1 the DuMaurier cigarettes, stuffed inside a toilet paper roll and two clear institutional shampoo bottles with white lids containing vodka, apparently Grey Goose. This was delivered to his cell.

14A week later, Inmate J approached the “blond CO” and they agreed that the inmate’s people would meet the CO at the LCBO at Eglinton and Brimley where he would be given $500, a bottle of Grey Goose vodka and a pack of cigarettes. The contraband was then delivered by the blond CO to the ledge on the range in two shampoo bottles and the cigarettes in a toilet roll. The blond CO then signaled to Inmate J that the delivery was made. Inmate J retrieved the contraband and put it in his cell. One bottle was then consumed by the Inmates J and S and the other bottle was given to other inmates.

15The investigation interview also dealt with a second uncompleted transaction between the Inmates J and S with the blonde CO regarding a $500 payment for smuggling in steroids. It does not appear that the Ministry is relying on this alleged transaction in their decision to terminate the Grievor.

16Some time later, Inmate S got into an argument with CO #1 about whether the $1,000 he was already paid was to also cover further shipments of contraband. CO #1 then wrote up Inmate S for threatening him and Inmate S was removed from the range. Inmate S then told the managers that CO #1 was bringing in contraband for him and as proof Inmate J directed the manager to one of the shampoo bottles which still had a couple of drops of liquid in it.

17Towards the end of the interview Mr. Ruggiero told Inmate J that he was going to show him a series of photos and “just tell me who you believe them to be”.

18He first showed him Picture #1 which the Inmate J identified as “Yeah that’s the first dude, the first fellow”. Photo #1 is a photo of CO #1.

19He is then shown photo #2. Inmate J identified it as a photo of the CO who was CO #1’s backup when CO #1 and Inmate S had their argument. Inmate J said that this CO in Photo 2 would not have been able to hear the argument as he was too far away.

20Mr. Ruggiero then showed Inmate J photo #7, which is a photo of the Grievor. He did not show Inmate J the photos marked 3, 4, 5, 6, 8, 9, 10, 11 or 12.

Upon being shown photo #7, Mr. Ruggiero asked “And who is that?”

Inmate J responded “That’s the tall stocky guy”

Mr. Ruggiero then asked “And is he the one had the two exchanges?”

Inmate J responded “Yeah”

Mr. Ruggiero then asked “And he the one that was looking after the steroids”

Inmate J answered “Yeah”

21Why did Mr. Ruggiero not show the other pictures to Inmate J before showing him the Grievors’ picture?

22I do not know as he was not asked any questions about this in his chief or in his cross. The Union’s position has always been that Inmate J was lying, not that he mistook the Grievor for another similar looking CO.

23In any event, Inmate J did identify the Grievor at the hearing as the CO that he had purchased the vodka and cigarettes from. Again it was never put to him that he was mistaken as to identity of the CO who sold him the contraband, only that he was lying about the whole incident.

24It certainly would have been a fairer investigation to present Inmate J with the photos of all the CO’s who worked on that range in the time frame that the inmate said the transactions took place. He then could have been asked if any of these photos were of the person with which he had the transaction in question.

25So why did he not do this? It may be due to the mandate given to the investigator. In the Executive Summary, Mr. Ruggiero makes clear that his mandate was to investigate allegations that the Grievor was involved in the handling of contraband. He was not trying to find out who brought this contraband into the institution, rather he was trying to find out if the Grievor did so.

26In any event, the Unions’ position has always been that Inmate J was lying. In cross examination, Inmate J revealed that he had been in jail three or four times on drug charges and unsafe storage of a gun. Around mid or late August of 2010, having just been released from jail, Inmate S called Inmate J and said that he was angry with him as Inmate J did not get him what he had paid for. Inmate J said that he was concerned that Inmate S would get some “heavies” after him. Inmate J said that he was concerned that Inmate S would be angry with him if he did not back Inmate S’s story about the contraband.

27In cross examination Inmate J gave confusing and contradictory stories about whether the alcohol was one or two bottles and whether it was contained in a shampoo bottle or a mickey bottle. He ultimately testified that he got one shampoo bottle of vodka from CO #1 and two shampoo bottles of alcohol from the Grievor. He said that he got it mixed up in the interview. He said that the bottles were about 1.5 liters each.

Testimony of Tony Ruggiero, Investigator

28He had possession of the shampoo bottle that was seized from the cell of Inmates S and J. He received this from the TEDC Security Unit. He testified that there was a small amount of liquid in the shampoo bottle. He did not have the contents analyzed. In other words he could not testify that the shampoo bottle contained vodka, as Inmate J indicated.

29Therefore there is no scientific evidence that the shampoo bottle ever contained vodka. As Mr. Ruggiero said at page 3 of his report:

“Upon completion of a search an institutional shampoo bottle was discovered that contained a liquid believed to be alcohol. The bottle was secured into evidence” (emphasis added)

30Neither did Mr. Ruggiero ever examine the small amount of liquid in the Smirnoff bottle found in the Grievor’s locker.

31Mr. Ruggiero contacted Smirnoff about what information they could tell him about he manufacture date of the bottle, based on its serial numbers. He was told that the manufacture date was November 11, 2009 from their facility in Plantfield Illinois. The Union does not dispute this data.

Testimony of Chris Daley

32Mr. Daley was the Acting OEM who searched the cell of Inmates S and J. He found an institutional shampoo bottle in the cell with a small amount of liquid in it. He opened the bottle and smelled the contents. It smelt like vodka. The bottle would hold about a liter. He has had personal experience with vodka which allowed him to identify the smell. He admitted that he usually drinks vodka with a mix. He said that there was maybe 5 – 10 ml of liquid in the bottle.

33He also testified that inmates often make an alcoholic jail brew from fruit and bread. He stated that real alcohol is rarely found in the possession of inmates. This was the first time he had found real alcohol in an inmates’, possession since he started in Corrections in 1997.

Testimony of John Lawson

34Sgt. Lawson was tasked with searching the Grievor’s locker on July 29, 2010 while the Grievor was being interviewed by the Superintendent just prior to his suspension. He opened the Grievor’s locker in the presence of an OPSEU representative. The locker contained many items but in plain view at the bottom of the locker was a bottle. After moving some magazines out of the way, he realized it a liquor bottle. He then secured the locker. The next day he reopened the locker, photographed the contents and secured the liquor bottle. It was produced as Exhibit 2. It is a plastic bottle, Smirnoff Vodka, 200 ml. It contains a small amount of clear liquid.

Testimony of Tracey Timoll, Superintendent of TEDC

35During the allegation meeting on October 6, 2011, the grievor was asked how long had the Smirnoff bottle been in his locker. At one point he said that it had been in his locker for two years. Then later on he said that it was 6 months prior to his July 2010 suspension, maybe longer.

Testimony of the Grievor, Ted Weber

36The Grievor denied that he had ever brought in or agreed to bring in any contraband to inmates. He denied all the allegations of Inmate J that related to his conduct. He never had any negative encounter with either Inmates S or J.

37He gave a long and somewhat convoluted explanation of how the empty vodka bottle ended up in his work locker.

38One day, while returning from work, he decided to drop in on a friend who owned a limo company. He first stopped at the LCBO, maybe the one at Eglinton and Brimley as this is the one he normally shopped at. He purchased the 200 ml bottle of vodka and proceeded to his friends’ house. This is something that he did quite often.

39At his friend’s house he drank most of the vodka himself while his friend provided the mix. He indicated that the drinking probably took place either in his friends’ driveway or the parking lot where they are cleaning the limos. Instead of throwing out the empty bottle in the garbage, he threw the bottle in the front seat of his car. He then drove home, having consumed most of the vodka himself. The empty vodka bottle stayed on the front seat.

40The next morning when he got into the car he noticed the empty vodka bottle on the front passenger seat. He decided to put this particular piece of garbage (the empty bottle) in his gym bag although he admits that he had other pieces of garbage in his car. He said that he put the bottle in his bag so that the police would not see it if he were stopped.

41He used the gym bag to transport dirty clothes from the jail to his home and clean clothes from his home to the jail. Therefore he was using his gym bag of clean clothes to transport a piece of garbage, namely the empty bottle.

42Once he got to work he placed his gym bag in his locker. In doing so he passed at least one garbage can. At lunchtime he took his gym bag to the gym for a workout. Upon opening his gym bag he saw the empty bottle. He was not comfortable with the thought that someone could open his gym bag and see the empty bottle so he removed the bottle from the bag, returned to his locker, opened the locker and threw the empty bottle in the locker. He must have passed at least a few garbage cans along the way, however he did not throw out this particular garbage, but rather he put it in his locker. According to his testimony he did not bring the gym bag with the bottle back to his locker but rather he removed the bottle from the bag and then transported it to his locker. He did not indicate whether he hid the bottle on his person while he went from the gym to the locker room.

43He claims that he forgot about the bottle in his locker and did not see it or remember it during the entire period from when he threw it in his locker to just at the time that he was suspended.

44However, he also related a story to the Investigator that another CO had seen the bottle in his locker and commented on it. This CO told the Grievor that he was either stupid or dumb to have that in his locker. The Grievor said that he laughed at this comment but still did not remove the bottle from his locker and throw it out. He was unable to remember the name of this CO.

45When he was put on suspension, but before he knew that they had searched his locker, he realized that he had this empty bottle in his locker. He attended at his local LCBO and inquired if they could tell him based on the bottle’s serial number if they could tell when the bottle was sold. They said that they could not. He did not ask the LCBO if they could tell the manufacturing date from the serial number.

46When he was interviewed by Mr. Ruggiero on September 10, 2010, he was asked repeatedly about the date in which he said that he bought the vodka in question. His recollection at that time was approximately 1.5 years. His exact words in the investigation were as follows:

Page 23: “That has actually been there for approximately a year and a half I believe.”

Page 33: “and I threw in the bottom on my locker and it’s, it’s been. I mean it been there forever.”

Page 43: Investigator: “And it been in there for a year and a half or so?”

Grievor: “Give or take yeah”

Investigator: “And your saying that’s over a year and a half old?”

Grievor: “Yeah”

Investigator: “And it’s been there for a year and a half that you happened to have forgotten about it?”

Grievor : “ Yeah”

47In his cross examination the Grievor also referred to having the bottle in his locker about 1.5 years prior to his suspension but said that he could not be completely sure of the date.

48As his suspension was July 29, 2010 the Grievor has testified and stated on numerous occasions that he purchased the bottle approximately in January of 2009.

49We know that the bottle was manufactured on November 11, 2009. This would make the Grievors’ timeline impossible, even if one were to give a very liberal meaning to the words “approximately” or “about” or “give or take“ or “not exactly” or the like.

50Also according to his chronology, the Grievor was drinking vodka with his friend either in the friends’ driveway or in the parking lot in January. This is not impossible but highly unlikely given the weather in Toronto in January.

Decision

51The evidence of Inmate J is that his accomplices were to meet the Grievor at the Eglinton and Brimley LCBO and exchange a bottle of Grey Goose and cigarettes for the money. The Grievor was not to buy the alcohol himself.

52Therefore, on its face, the existence of the Smirnoff bottle in the Grievor’s locker is interesting but not conclusive as this was not the vodka that the inmate J’s friends gave to the Grievor.

53However only a couple of scenarios are possible given that we know that the Smirnoff bottle was manufactured on November 11, 2009 but the Grievor repeatable testified that he purchased it in approximately January of 2009.

1. He kept the more expensive Grey Goose vodka for himself and purchased the cheaper Smirnoff for the inmate, thereby increasing his profit on the transaction.

2. He poured the Grey Goose into the empty Smirnoff bottle to get it into the institution and then poured it from the Smirnoff bottle into the institutional shampoo bottles for delivery to Inmate J.

3. He brought the full Smirnoff bottle into the jail for his own use and drank it himself.

4. He brought in the empty Smirnoff bottle to the institution sometime after November 11, 2009.

If #1 is what happened, then he is guilty of selling contraband to an inmate, of defrauding the inmate and lying to the Investigator.

If #2 is what happened, then he is guilty of selling contraband to an inmate and lying to the Investigator.

If #3 is what happened, then he is guilty of consuming alcohol while at work and lying to the Investigator.

If #4 is what happened, he is guilty of lying to the Investigator and at the arbitration on the important issue of when he purchased the bottle of Smirnoff.

54For a short service fixed term CO, even with an otherwise clean record, any of these offences would properly lead to a discharge.

55It is therefore unnecessary for me to determine whether or not the Grievor dealt in contraband because at best, he lied on a highly material fact to the Ministry Investigator, the Superintendant and in this arbitration. This alone justifies the termination of his employment.

56The grievance is therefore dismissed.