OPSEU (Esser et al) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4664

GSB#2011-3658, 2011-3659, 2012-0150

UNION# 2012-0128-0002, 2012-0128-0003, 2012-0128-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

OPSEU (Esser et al)

Grievor

• and -

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

Employer

BEFORE

M.V. Watters

Vice-Chair

FOR THE GRIEVOR

Christopher Bryden Ryder Wright Blair &Holmes, LLP Barristers and Solicitors

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Labour Practice Group Counsel

CONFERENCE CALL

December 13, 2012.

DECISION

1This proceeding arises from the Employer’s decision to terminate the employment of Mr. David Esser and Mr. Dean Esser effective March 15, 2012. Both grievors were Correctional Officers working at the Sarnia Jail.

2The letter of termination respecting Mr. David Esser sets out the following allegations:

"1. On August 31, 2011, you exercised excessive use of force when you:

a) used your hand to grip the neck/throat area of Inmate Joseph to pin her up against a wall in the second floor hallway;

b) delivered three (3) closed-fist strikes to the head and/or shoulder of Inmate Joseph in the cell of Area 5.

By exercising an excessive use of force you engaged in serious misconduct in carrying out your role, responsibilities and duties as a Correctional Officer and as a Ministry representative in contravention of the Ministry of Correctional Services Act and Ministry policies and procedures.

2. On August 31, 2011, in the cell of Area 5 you spoke to Inmate Joseph in a threatening and derogatory manner by calling her a "pussy" when she covered her head in response to you physically gesturing to deliver a closed-fist strike, in contravention of Ministry policies and procedures, and the Ontario Human Rights Code.

3. You engaged in serious misconduct in carrying out your role, responsibilities and duties as a Correctional Officer and as a Ministry representative when you failed to provide an accurate and precise description of all circumstances surrounding this use of force and therefore made a concerted and purposeful attempt to conceal the excessive use of force, in violation of Ministry policies and procedures.

4. You directly and/or indirectly encouraged your colleagues to conceal the excessive use of force in their respective occurrence reports by passing around your initial occurrence report to colleagues and providing a verbal account of the details you provided in that report, in contravention of Ministry policies and procedures."

3The letter of termination respecting Mr. Dean Esser sets out the following allegations:

"1. That on or about October 6, 2011, you used terminology and language towards another Correctional Officer in relation to her involvement and reporting obligation in a use of force incident, in an attempt to intimidate the Correctional Officer into remaining silent during the CISU Investigation process, in violation of Ministry policies and procedures.

2. By attempting to intimidate another Correctional Officer into remaining silent during the CISU investigation, you acted with intent to obstruct the CISU Investigation in violation of the Ministry of Correctional Services Act, and failed to act in accordance with Ministry policies and procedures."

4Following the initial hearing date on June 28, 2012, this Vice-Chair issued an Order requiring the Employer to provide particulars, including those related to any post-termination incidents and evidence on which it might seek to rely. The Employer, pursuant to the aforementioned Order, provided particulars to the Union by letter of September 7, 2012. The letter sets out the following particulars relating to post-termination incidents and evidence:

"Dave Esser

6. Including, but not limited to, for the purposes of the remedial phase (if any) of the litigation, the Employer relies on a number of media reports and correspondence written by CO Esser related to the UOF incident. Copies of the relevant articles and correspondence are attached.

7. For example, in an April 9, 2012 article in the online edition of the Sarnia Observer ("Jailhouse use-of-force touches nerve") CO Esser was quoted with respect to the Ministry’s UOF policies: "We need to tell the public exactly what’s happening in their jails because it’s a huge problem…We want to know why the ministry is advocating for the inmates instead of the guards." The article also states that:

"According to Esser, the case that led to his firing involves an inmate who threatened to hit him last August. He said he stopped an assault by grabbing the inmate’s arm and holding the inmate against a wall.

When I let go, the inmate went crazy, just out of control and assaulted me three times. I defended myself and the inmate stopped.

Neither party was injured, according to Esser. However, he said police were called and assault charges were laid against the inmate. The charges were later dropped."

8. As a further example, in an April 16, 2012 article in the Sarnia Observer ("Recruitment drive on for Save the Jail movement"), CO Esser is quoted as believing his termination was related to the announced closure of the Sarnia Jail: "I believe it’s all related; the investigations, the use of force, and the jail closure, it’s all related," Esser said. "It’s political."

9. A March 21, 2012 article in the Sarnia Observer ("Sarnia Jail employees fired") states: "Esser said he believes the ministry has started to crack down since the Ombudsman’s investigation. "Corrections panicked," Esser said. "Since they’ve panicked, they’ve gone completely whacked over the use of force." He is also quoted as saying: "We’re being investigated and suspended and fired for every single use of force that happens." Much of the same information was reported in a March 21, 2012 article in the London Free Press ("Jail employees fired").

10. CO Esser held a press conference on March 21, 2012. He subsequently uploaded a video of his press conference to YouTube. In summary, CO Esser made the following points during his press conference:

• Correctional officers are not allowed to do their job.
• Inmates have the right to assault staff but correctional officers have been stripped of their rights to use force to protect themselves.
• CISU should be disbanded.
• Investigations into use of force incidents are due to an ulterior motive and are baseless.
• He was protecting himself, the inmate had no injuries, the inmate mocked him on how little force he used and yelled for 3 hours about how little force was used.
• Unclassified correctional officers who were suspended were shorted pay.
• The Vice President of the Union told him that the institution is running short staffed and the superintendent is not abiding by the compressed work week agreement. Therefore, there are safety issues at the jail.
• The institution is mismanaged and the superintendent has a mandate to close it as soon as possible. He requested the immediate removal of the superintendent.
• If he is re-elected as Union President all fired staff will get their job back.

11. It is the Employer’s position that the information provided by CO Esser to the media is disparaging against the Employer and further highlights the fact that the employment relationship is irreparably damaged. Furthermore, the dissemination of information pertaining to staffing levels at the institution could be detrimental to the safe, secure operation of the institution.

12. CO Esser has also written numerous correspondences to Ministry representatives, including the Minister of Community Safety and Correctional Services and the then Manager of the CISU, Diane Cotton. In his correspondence, CO Esser articulated his views about the Ministry, including Superintendent Fitzgerald, in a rude and disparaging manner.

Dean Esser

6. The Employer relies on the following particulars including, but not limited to, for the purposes of the remedial phase (if any) of the litigation. Copies of the relevant correspondence and Facebook documents are attached.

7. CO Esser wrote correspondence to the Minister of Community Safety and Correctional Services. In his letter, CO Esser spoke in a rude and disparaging manner about the Ministry, including Superintendent Fitzgerald.

8. Based on information posted by CO Esser and his wife, Trish Esser, on Facebook, he has entered into a business relationship with Mohinder ("Moe") Deol. The name of his business is Evolution Workout and Kokomos Tanning. Mr. Deol has been in custody at the Sarnia Jail, including but not limited to from:

March 25-27, 2012

June 2-August 20, 2009

October 19-24, 2008

July 2-5, 2005

9. Mr. Deol has most recently been incarcerated at the Niagara Detention Centre from May 6-8, 2012. Mr. Deol has alerts in OTIS for domestic violence and sex offenses."

5A Telephone Conference was subsequently held on December 13, 2012, involving this Vice-Chair and counsel for the respective parties, to address the issue as to how the post-termination evidence, as particularized above, should be treated. At the outset, counsel for the Employer clarified that the Employer is not relying on such evidence to expand the grounds for termination relating to either grievor. Rather, she advised that post-termination evidence will be relied on for remedial purposes in the event the terminations are not upheld. More specifically, the Employer will then rely on the contested evidence to establish that damages should be awarded in lieu of reinstatement, or that reinstatement should be to another position or institution.

6Counsel for the Union argued that the post-termination evidence should not be admitted, even for remedial purposes. He acknowledged that the general approach in Ontario is to receive such evidence for purposes of remedy. Counsel asked, however, that I depart from this practice given the circumstances existing in this case. In this regard, he noted that the Adjunct Investigation concerning a potential conflict of interest on the part of Mr. Dean Esser "was not able to determine the extent of the friendship and/or association between Dean Esser and Mohinder Deol prior to March 15, 2012, the date Dean Esser ceased to be employed by the ministry." Counsel further noted the recommendation contained therein that the file be closed pending further developments or new information. In summary, he submitted that it would be premature to now deal with the alleged conflict of interest.

7Counsel for the Union argued, in the alternative, that the hearing should be bifurcated if the post-termination evidence is found to be admissible. He submitted that the hearing should focus initially on whether the Employer had just cause to terminate the grievors for the grounds listed in the termination letters of March 15, 2012 and that any question of remedy should be addressed separately in a subsequent hearing, if necessary. From his perspective, to do otherwise would unduly prolong the case and "bog the proceedings down". Counsel suggested that there would be no real inconvenience if witnesses, including the decision-makers, had to be recalled during the remedial phase. Lastly, he emphasized that the post-termination evidence the Employer seeks to rely on is distinct from the type of conduct which led it to terminate both grievors from their positions.

8The Union relies on the following authorities in support of its position: Aerocide Dispensers Ltd. v. United Steelworkers of America (Walker Grievance) (1965), 1965 CanLII 985 (ON LA), 15 L.A.C. 416 (Laskin); Compagnie minìere Québec Cartier and United Steelworkers of America, Local 6869, 1995 CanLII 113 (SCC), [1995] 2 S.C.R. 1095; Direct Energy v. Communications, Energy and Paperworkers Union of Canada, Local 975 (Tomas Grievance) (2009), 184 L.A.C. (4th) 7 (Burkett); Centre for Addiction and Mental Health v. Ontario Public Service Employees Union, Local 500 (Patterson Grievance) (2000), 2000 CanLII 50228 (ON LA), 88 L.A.C. (4th) 13 (Surdykowski); Waiward-Steel Fabricators Ltd. and B.S.O.I.W., Local 720 (Brydges Grievance) (2003), 2003 CanLII 89563 (AB GAA), 117 L.A.C. (4th) 1 (Power).

9In response, counsel for the Employer argued that the post-termination evidence should be admitted for remedial purposes in the event the discharges are set aside. She maintained that to limit the evidence, as requested by the Union, would amount to a breach of the principles of natural justice. Counsel noted, in this regard, that the Employer has the onus of establishing that reinstatement should not occur. It was her submission that the receipt of the post-termination evidence would have no prejudicial effect, whereas its exclusion would adversely impact the presentation of the Employer’s case. With respect to Mr. Dean Esser, counsel observed that the Employer is not taking the position he is currently in a conflict of interest, given that he is no longer an employee bound by the applicable policy. She stated that, instead, the evidence is relevant to remedy as it relates to this grievor’s judgment and as to whether he can be trusted by the Employer going forward. Counsel added that it would be inappropriate to assess the weight of the post-termination evidence at this stage in the proceedings.

10Counsel for the Employer opposed the Union’s request for bifurcation. She noted that bifurcation would require both parties to recall witnesses who previously gave evidence on the merits. It was her assessment that this would complicate the presentation of the case and is unnecessary in the circumstances. Counsel suggested that the post-termination evidence would not be extensive and that its receipt would not protract the proceedings unduly. She took the position that it would be preferable to hear all of the evidence together without any bifurcation. From her perspective, this would amount to a "cleaner approach" and one that is more in accord with the normal practice at the Grievance Settlement Board. Lastly, counsel further noted that this will likely be a long case in any event.

11The Employer relies on the following authorities in support of its position: City of Toronto v. Canadian Union of Public Employees, Local 79, 1982 CanLII 2229 (ON CA), [1982] O.J. No. 222 (Ont. C.A.); OLBEU (Massa) and LCBO, GSB #2033/97 et al. (Abramsky).

12Having reviewed all the submissions and the supporting authorities, I conclude that the Employer is entitled to present the post-termination evidence referenced in the above-cited particulars. As clarified by counsel for the Employer, the evidence is not intended to expand upon the grounds for termination. Rather, it relates solely to remedy in the event the terminations are set aside. This decision is consistent with the approach adopted in Centre for Addiction and Mental Health. The Award in that matter reads:

"24 In the result, evidence of post-discipline events is not admissible to establish either additional or new grounds for the discipline. However, and notwithstanding Quebec Cartier, supra, in Ontario such evidence is routinely admitted on the issue of substitution of penalty under ss. 48(17) of the Labour Relations Act, 1995."

13I find that this is a case in which the post-termination evidence relating to remedy should be heard after a determination as to whether the Employer had just cause to terminate the employment of Mr. David Esser and Mr. Dean Esser. On my reading of the particulars, there is real potential that the receipt of, and cross-examination on, the post-termination evidence will occupy numerous hearing days. Additionally, such evidence relating to both grievors is dissimilar to the alleged conduct which resulted in their discharge. Ultimately, I determine that the hearing process will be better served by delaying the receipt of the post-termination evidence until after a conclusion has been reached on the issue of just cause. The weight to be accorded to this evidence will naturally be assessed only after it is received and tested.

14This proceeding will continue on the dates previously scheduled.