Officer was stressed, drunk when he had domestic dispute
Often employers take a “don’t ask, don’t tell” approach to employees’ actions when they’re away from work. And why not? But when an employee’s actions while off-duty are serious enough to get him in legal trouble, sometimes the employer has to take notice. This is especially true if the misconduct could potentially affect the employee’s job and the employer’s ability to operate.
The occupation of corrections officer is one that has a higher standard of conduct both in and outside of the workplace, as serious misconduct can call into question an officer’s ability to do his job and put the corrections authority under fire publicly. But not always. Let’s take a look at an arbitrator’s decision from a couple of years ago where a Nova Scotia corrections officer faced assault charges stemming from a domestic dispute. The employer solution to the problem isn’t really surprising, but the arbitrator’s final decision may be.
A Nova Scotia corrections officer who was fired after he was involved in a domestic dispute — featuring a knife that led to criminal charges — has been reinstated by an arbitrator.
Darell Toner was a corrections officer for the Nova Scotia Department of Justice. He had 12 years’ service with no discipline until March 2010, when he faced repercussions for a domestic incident at his estranged wife’s home.
Over a five-year marriage, Toner and his wife had experienced some problems. They had separated once before, but later reconciled. However, in early 2010, Toner’s wife discussed the possibility of separating again.
On March 14, 2010, Toner went to a hockey game after work. Normally, on days he worked, he stayed at his parents’ house because it was more convenient, so his wife wasn’t expecting him home that night. However, around 2 a.m. the next morning, Toner called his wife to say he had gone out drinking after the game and was coming home.
Corrections officer involved in domestic altercation
Toner arrived around 6 a.m. on March 15 and his wife awoke to find him on top of her. They began arguing and the wife claimed Toner said to her, “if I can’t have you no one can.”
She was upset and scared, especially since her 14-year-old daughter from another relationship was asleep in another room. The wife called 911 but was disconnected, and Toner got off of her. He cut himself with the knife and the left the house. A 911 operator called back and the wife explained what was happening and that her husband was “drunk and suicidal,” having stabbed himself. Two police officers were dispatched to the Toner house.
When police arrived, the wife talked to a female officer and reported Toner had grabbed the knife after he moved off of her and stabbed himself after 911 called back. She went to the station and gave a sworn statement that Toner had kept saying he didn’t want to separate and asked her for sex, while pinning her with his hands, one of which held the knife. Toner eventually returned to the house and was arrested.
Toner was charged with assault with a weapon and uttering threats, but he reached a plea agreement in which he pleaded guilty to a reduced charge of common assault and the uttering charge was withdrawn. Toner informed his employer, the justice department — as required under the department’s code of professional conduct for corrections workers — and went on sick leave.
The department began an investigation into the incident in May and asked Toner for an interview. Toner refused because he was to appear in court shortly. The investigator then interviewed Toner’s estranged wife, who described the incident as before but added that Toner had held the knife to her throat. The investigator contacted Toner again for an interview on June 1 but he was agitated, accusing his employer of harassing and intimidating him while he was on sick leave. Toner was told he wasn’t required to submit to an interview, but he was getting an opportunity to do so.
Employer used wife’s account of events as grounds for dismissal
The investigator completed the report without Toner’s participation. Though he was aware Toner had a clean disciplinary record, it was recommended to the executive director that Toner be terminated for a criminal assault outside of work, which violated the code of professional conduct and “reflects negatively upon the department.”
It was particularly sensitive since the correctional facility where Toner worked housed several inmates who had been convicted of spousal abuse and the Nova Scotia government had recognized spousal abuse as a serious social problem, adopting a “pro-arrest, pro-charge, pro-prosecution policy.”
The department also noted Toner was provided with an opportunity to respond but chose not to. It did not wait for the sentencing because its investigation was a separate process from the court proceedings. Toner was dismissed on June 10, 2010.
The court granted Toner a conditional discharge, meaning no conviction was entered for the assault. The union grieved the dismissal, arguing the inconsistency of the reports — and shallowness of the employer’s investigation— didn’t warrant dismissal.
The union called a clinical psychologist who was treating Toner, who explained Toner was “very remorseful and upset that he had scared” his wife. The psychologist testified Toner “had insight into his behaviour” and worked hard to obey the no contact order issued by the court. There was also no history of substance abuse and his anxiety had contributed to the incident. He also didn’t fit the profile of a spouse abuser and was a low risk to repeat his behaviour, said the psychologist.
Toner testified that when he got home that night, his wife told him “I know how to get rid of you” and went to the phone. He asked her not to, because there would be charges that would likely end his employment. He said when 911 called back, he took his knife and attempted suicide by stabbing himself as he was stressed from his relationship crisis and his suspicion that she was seeing somebody else. He also acknowledged had he not consumed alcohol the incident would not have happened.
Toner also said he told the investigator he had to be cleared by his doctor before speaking to him, and he took the comment that he was not going to order him to be interviewed as a form of intimidation. Toner stressed that he had taken steps to get help, such has getting medication and seeing the psychologist.
The arbitrator noted that although one of the charges against Toner was withdrawn and the assault with a weapon charged was reduced, this didn’t necessarily reduce the seriousness of his actions. There were several factors that could contribute to such a decision, but the standard of proof for court cases was different than for an employer investigation, said the arbitrator.
The arbitrator found there were inconsistencies between the reports Toner’s wife gave to the police, the court and the department of justice’s investigator.
In the latter, she said Toner had held the knife to her throat before she called 911, while in the arbitration hearing she testified she woke up with the knife at her throat. In her police report, she only said Toner had a knife in his hand when he pinned her down. However, it was clear in any event that Toner had a knife, which was witnessed by police when he returned to the house.
It was consistent in all the reports that Toner had said, “if I can’t have you no one can,” which were “ominous” words, said the arbitrator. However, the fact the wife wasn’t injured and Toner only injured himself was taken into consideration.
The arbitrator found that using the wife’s interview with the investigator as the grounds for termination couldn’t be fully supported due to the differences with the police report, but the employer could not be faulted for relying on that interview since it didn’t have all the court evidence or Toner’s version.
Regardless of the most accurate version of events, the arbitrator found it was a serious case of off-duty conduct. However, there was no evidence the incident was ever made public and thus it didn’t harm the department of justice’s reputation or become known to Toner’s co-workers or the inmates. Also, there was no evidence his co-workers would be reluctant to work with him again, said the arbitrator.
The arbitrator found the incident was “a one-off event, an aberration” that was out-of-character for Toner as there was no history of violence or threats between the couple. It wasn’t pre-meditated and was caused by his intoxication that night along with his frustration and stress over his marriage woes. He also accepted responsibility for his actions and felt remorse.
The Nova Scotia Department of Justice was ordered to reinstate Toner to his position as a corrections officer, with a one-month unpaid suspension substituted as discipline for his misconduct.
For more information see:
• Nova Scotia (Department of Justice — Corrections) and NSGEU (Toner), Re, 2012 CarswellNS 1056 (N.S. Arb.).
