Many misconducts, policy breaches lead to dismissal of correctional officer

A Newfoundland and Labrador penitentiary had sufficient cause to determine a probationary employee was unsuitable for his position due to misconduct, an arbitrator has ruled.

The worker was hired in 2013 as a casual correctional officer at Her Majesty’s Penitentiary (HMP) in St. John’s. He started with a one-year probationary period. His training covered policies including the dress code, deportment and safety. In addition, staff were not allowed to carry their cellphones with them, as inmates had been known to manipulate new staff into obtaining their phones.

An evaluation stated that the worker maintained his uniform and appearance in accordance with policy, but he had been seen several times not wearing his tie or cap. There were also concerns about his attitude and judgment, including leaving the prison for cigarette breaks — which was a safety concern since staff needed to know who was inside or outside of the building in case of an emergency.

In late August, the worker was approved to take Aug. 28 and Aug. 29 off work due to a death in his family. He was supposed to work on Aug. 31 but he called in sick. HMP management soon learned that the worker had posted several photos and updates on Facebook showing that he was playing in a soccer tournament that day.

The worker explained that playing soccer helped to clear his mind and he thought it would help “with everything that was going on” — in addition to the death, he had split with his girlfriend and was sharing custody of his daughter. HMP asked if the worker had been diagnosed with a mental illness, but the worker said he was just going through “a rough time.”

HMP decided to extend the worker’s probationary period until Feb. 18, 2015.

In early February 2015, a manager saw photos of the soccer tournament on the worker’s Twitter account as well as tweets discussing one of the inmates at the prison. The worker also tweeted articles critical of the prisons and some appeared to have been posted during work hours.

Two days before the end of the worker’s probationary period, HMP informed him that he was being investigated for using his personal cellphone at work and inappropriate commentary on social media relating to persons in custody.

The worker denied using his cellphone in the prison since management had cracked down on the practice, but he didn’t deny playing in the soccer tournament or posting the tweets.

On Feb. 17 — the day before the worker’s probationary period ended — HMP terminated his employment for the cellphone infraction, the social media commentary, and “a continued failure to comply with employer policies on proper dress and deportment.” HMP said that all of these indicated that the worker wasn’t suitable for the position of correctional officer.

The union challenged the dismissal, claiming the worker wasn’t warned about his breach of policy on deportment or dress code. It also claimed the worker hadn’t been trained on the cellphone ban and there were mitigating circumstances when he called in sick and played soccer.

The arbitrator noted that the worker admitted that he had played in the soccer tournament and didn’t comment on his tweets. In addition, while he denied using his cellphone after management cracked down on it, he didn’t deny using it before the crackdown, although it was still against policy. As for his dress code violations, these had been raised in his evaluation but he didn’t improve, said the arbitrator, noting that the worker had ample opportunity to dispute the allegations against him.

The arbitrator found that the grounds provided by HMP were “of sufficient severity for the employer to conclude that the [worker] was unsuitable to be a correctional officer” and upheld the dismissal.