FPSLREB Decisions

[1]   Ms Lyne Simard was employed by the Correctional Service Canada for some years, and worked as an instructor at the Corcan Industries Sorting Centre since March 2000.

[2]   Following a disciplinary investigation, Ms Simard was dismissed on October 11, 2001, on the ground that she admitted having a personal relationship with an offender.

[3]   On November 2, 2001, Ms Simard contested this decision by the employer. The case was referred to arbitration on October 22, 2002, and the hearing was held on March 18, 2003.

[4]   On February 13, 2003, Ms Simard was notified by a registry officer of the Public Service Staff Relations Board ("the Board") that the union was withdrawing its representation in the case and that, as a result, she could be represented by herself, by counsel, or by another person of her choice.

[5]   On February 19, 2003, the parties were notified by the registry officer of the Board that the grievance would be heard on March 18, 2003, and that, if the parties failed to attend the hearing, the Board Member could rule on the case in light of the evidence presented by the parties.

[6]   On March 11, 2003, Ms Simard was again notified that the case would be heard on March 18, 2003.

Facts

[7]   On March 18, 2003, Ms Simard did not attend the hearing; the employer agreed to present its evidence, while emphasizing that it would argue that Ms Simard's attitude was equivalent to abandonment of the grievance.

[8]   On July 9, 2001, Mr. Daniel Richer, Regional Director, Corcan Industries, learned that Ms Simard, one of his employees, had a relationship with an offender on statutory release. Mr. Richer authorized Ms Sonja Ellefsen, Project Manager, Regional Headquarters, and Ms Joyce Malone, Acting Regional Administrator, to gather and analyse the facts concerning Ms Simard's relationship with the offender.

[9]   The investigation, the report of which has been adduced as Exhibit E-2, indicated that the offender was on statutory release and had been living at Ms Simard's home since June 29, 2001.

[10]   Ms Malone, who was one of the investigators and who signed the investigation report adduced as Exhibit E-2, testified at the hearing. The investigation report and Ms Malone's testimony indicated the following facts.

[11]   The offender "X" worked in the shop run by Ms Simard from September 18, 2000, until February 28, 2001 (Exhibit E-2, page 12). He was then on day parole at the Madeleine Carmel Community Residential Centre (CRC). A few weeks later, in March 2001, he called Ms Simard, saying that he did not like being at the CRC and was unhappy. In order to make the offender feel better and to talk things over, Ms Simard met with him. At that time, she gave him her address and a relationship began.

[12]   In March 2001, the offender told his supervising parole officer that he was in a relationship with someone.

[13]   In April 2001, a community meeting was conducted at Ms Simard's home by a parole officer. At that time, Ms Simard stated that she worked in the food services industry.

[14]   Then, in May 2001, Ms Simard objected to a community assessment being conducted, stating that she was afraid that confidentiality would be breached and that knowledge of her relationship with an offender might harm her family's reputation.

[15]   On June 7, 2001, Ms Simard finally agreed that a community assessment could be conducted; at that time, she told Ms Johanne Prairie, the person conducting the assessment, that she worked in a large grocery store.

[16]   Around the end of June 2001, the offender was on statutory release and went to live at Ms Simard's home.

[17]   On July 9, 2001, Ms Simard returned to work following a period of vacation leave. At that time, she met with Ms Louise Landry, her supervisor, who confronted her with the situation. Ms Simard admitted having a relationship with the offender.

[18]   During the investigation, Ms Simard was on leave without pay; subsequently, she was dismissed by Mr. Richer, Regional Director, Corcan Industries.

[19]   It should be noted that, during the period of leave without pay, Ms Simard was visited again by Mr. Grondin, a parole officer, to whom she admitted having lied at the time of the community assessment.

[20]   The investigation also indicated that in August 1999, Ms Simard took the orientation course for new employees, which specifically addressed relationships between employees and inmates. In January 2001, Ms Simard took the Offender Management course, which again covered the entire topic of relationships with inmates.

[21]   During the interview with the investigation committee, Ms Simard stressed that she saw her work in a positive light and believed that being in a helping relationship with the inmates was an important part of her job. From that perspective, she listened a great deal to the inmates, advised them, and showed sensitivity to their situations.

[22]   Ms Simard's desire to be in a helping relationship with the inmates caused her some problems in the fall of 2000. An inmate who had worked in her shop contacted her at home, visited her at work at the end of an unescorted temporary absence, and wrote her three letters. Ms Simard notified the inmate's case management team of these incidents. Explanations between the inmate and Ms Simard were necessary in order to clarify the nature of the relationship between them (which was misperceived by the inmate), and employees of the institution clearly warned Ms Simard about the distance she was to maintain with her inmate labour force.

[23]   That incident nevertheless indicated that Ms Simard had difficulty setting limits in her relationships with the inmates. She gave some inmates her personal telephone number and told them they could contact her if they were having problems. She showed great empathy and availability toward the inmates. Ms Simard stated that, following that incident, she learned to maintain greater distance with the inmates and changed her telephone number. During the interview, she added that the course she took in January 2001 confirmed to her that she needed to maintain a "professional" distance with the inmates.

[24]   In his testimony, Mr. Grondin, a parole officer, corroborated the matters set out in the investigation report. According to Mr. Grondin, the offender appeared to have an honest, sincere relationship with Ms Simard, who consistently stated that she worked in the food services industry except on one occasion after she was confronted by her supervisor and placed on leave without pay during the disciplinary investigation.

[25]   Mr. Richer is Regional Director, Corcan Industries; he explained that in deciding to dismiss Ms Simard, he took various factors into account.

[26]   The investigation report clearly indicates that Ms Simard had an ongoing relationship with an offender. Nor was that relationship an isolated incident, since Ms Simard previously encountered problems because she gave personal information to an inmate. At that time, she was warned not to have close relationships with the inmates.

[27]   Mr. Richer also took into account the fact that Ms Simard took the courses on the advisability of avoiding personal relationships with the inmates; manipulation was a possibility (Exhibits E-14 and E-15).

[28]   Ms Simard's role was to provide the inmates with training as part of their workplace skills learning, not to be in a helping relationship. As well, the Standards of Professional Conduct (Exhibit E-6) and the Code of Discipline (Exhibit E-5) encourage employees to avoid placing themselves in conflict of interest situations in their relationships with the inmates or the inmates' families.

[29]   According to Mr. Richer, if an employee is overly friendly with a particular inmate, a phenomenon of "contamination" or indoctrination may occur. Often, inmates present themselves as victims with an unfavourable image who are misunderstood by society and the correctional officers, as well, most of whom are allegedly anti-inmate and few of whom are pro-inmate. According to Mr. Richer, Ms Simard was pro-inmate. During the investigation, Ms Simard stated that she did not tell Ms Landry, her supervisor, about her relationship with an offender because apparently Ms Landry would not have understood her. According to Ms Simard, Ms Landry was not pro-inmate.

[30]   Mr. Richer concluded by stating that Ms Simard was well informed about the situation, lied during meetings with the parole officers, did not admit the situation to her supervisor, and tended to see her superiors and co-workers in pro-inmate and anti-inmate clans. This situation jeopardized the spirit of co-operation that necessarily governs work in a penitentiary setting.

[31]   Although Ms Simard did not testify, reference to the investigation report makes it possible to determine her version of the facts.

[32]   Ms Simard did not agree with the statement that she invited the offender to an evening party, alleging that he invited her, instead.

[33]   Ms Simard believed that it was possible to keep company with an offender, particularly if that person was granted parole.

[34]   Ms Simard stated that she contacted Mr. Louis Fréchette, Regional Co-ordinator, Employee Assistance Program, in order to ascertain whether she had the "right" to keep company with the offender. After taking note of the details, Mr. Fréchette mailed the document on conflict of interest to Ms Simard, referred her to a psychologist, and notified her that she did not have the right to go out with a former inmate. Mr. Fréchette advised Ms Simard to notify her supervisor and, if absolutely necessary, to choose between her job and her relationship. Ms Simard, however, stated that she could not discuss the situation with her supervisor because, in her opinion, [Translation]   "Ms Louise Landry judged the inmates."

Arguments

[35]   The employer argued that the grievor broke the bond of trust by lying, by hiding her relationship with an offender, by not notifying her superiors, and by still wishing to continue that relationship in future. The employer also adduced decisions dealing with similar issues: Côté v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 103 (Board File No. 166-2-31033), O'Connell v. Treasury Board (Solicitor General Canada - Correctional Service) (Board Files No. 166-2-27507 and No. 27519), and Lachapelle v. Treasury Board (Solicitor General Canada - Correctional Service) (Board File No. 166-2-23956).

Reasons for decision

[36]   The evidence has shown that Ms Simard was aware of the possible risks of having a personal relationship with an offender.

[37]   On this point, the courses given to Ms Simard and the rules of discipline warning employees to avoid any conflict of interest and to notify the authorities of relationships with offenders are explicit.

[38]   Already on a previous occasion, Ms Simard encountered problems after giving her home address to an inmate.

[39]   Ms Simard was warned by Ms Landry to maintain distance with the offenders.

[40]   Ms Simard stated that she made inquiries with the Employee Assistance Program. This would indicate that, at that time, she had doubts about the legality of her relationship with an offender. Even after being warned, she continued the relationship and lied to the parole officers, claiming that she worked in the food services industry.

[41]   I have examined the relevant documentation adduced at the hearing. In particular, I agree with the following point, made in Lachapelle:

" ... In a correctional institution, rules and procedures are important and it is essential that one be able to anticipate what will happen in relations with the inmates. The employees must therefore abide by rules which are perhaps very different from those one might expect elsewhere in society."

[42]   Although I assume that the employer has good reasons for its rules, I consider that each case must be considered on its merits and that it is important to check whether failure to follow the rules governing personal relationships with inmates affects the employee's credibility and the employer's potential trust in that person.

[43]   In this case, I consider that Mr. Richer, the Regional Director, was right in referring to the concept of "contamination" or influence to which employees may be subject in overly friendly relationships with an offender. Ms Simard, the grievor, had a negative opinion of her co-workers who were less familiar with the inmates. Thus, she stated that she did not tell Ms Landry, her supervisor, the facts because Ms Landry judged the inmates.

[44]   Lastly, except for her testimony at the disciplinary investigation, Ms Simard provided no further explanation. She did not discuss the situation with the employer and did not attend the hearing.

[45]   I cannot accept the employer's argument that Ms Simard's attitude constituted abandonment of the grievance. However, it must be noted that her attitude indicated that she knew it was risky to have a relationship with an offender and that, in so doing, she was jeopardizing her job.

[46]   In light of the evidence presented, I find that the bond of trust was broken and that the dismissal was justified. The grievance is therefore dismissed.

Jean-Pierre Tessier,
Board Member

OTTAWA, July 2, 2003.

PSSRB Translation