Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 Canadian Employment Law Today | 7 More Cases Correctional officer's drug bust gives CSC just cause for dismissal Arrest for drugs, equipment, weapons, violated standard of professional conduct, code of ethics, and collective agreement for corrections officers BY JEFFREY R. SMITH AN ADJUDICATOR has upheld the dis- missal of a New Brunswick corrections of- ficer who was found with a marijuana-grow- ing operation and weapons in his home. Harold Peterson was a correctional offi- cer at the Atlantic Institution (AIR), a max- imum-security institution in Renous, N.B. operated by Corrections Canada (CSC). He first became a correctional officer in 1999 at a provincial youth centre in Miramichi, N.B., where he dealt with inmates under 18. Over 12 years there, he was never disciplined but was exposed to assaults, inmates who harmed themselves, hangings, and a fire. He left the provincial system to work for CSC in 2011, first working at another facility before moving to AIR after a use-of-force incident that caused anxiety and sleeplessness. He didn't seek medical treatment for his issues, but started calling in sick from his depres- sion, anxiety, and a back injury he suffered in a car accident. Peterson was told to bring in doctor's notes for all his absences and was referred to the employee assistance program, but he didn't use it. He did some Internet research and con- cluded he had post-traumatic stress disorder (PTSD), but a doctor he consulted didn't be- lieve so. Peterson also began trying marijuana to alleviate his symptoms against his doctor's advice. He found it helped so he bought seeds and planted them on a neighbour's property without informing the neighbour. On Feb. 24, 2014, Miramichi police execut- ed a search warrant of Peterson's house. ey found dried marijuana throughout the house totalling 4.22 kilograms of the drug. ey also found grow-op equipment such as light bal- lasts, large fans, metal alloy lightbulbs, and potting soil, along with strings to support the plants hanging from the basement ceiling. Police also found several large hockey bags, a common method of transporting marijuana from grow-ops. ere were also loose mari- juana plant leaves and evidence of attempts to produce cannabis resin found in the house, along with seven unsecured weapons. Peterson was unco-operative with police and refused to reveal how many firearms he had in the house and where. He admitted to smoking marijuana often but had no pre- scription for it. He was arrested and released with conditions and the arrest was covered in the local newspaper, which stated Peter- son was a corrections officer and published photographs of seized marijuana in buckets labelled as shipped to AIR. AIR's assistant warden was informed by police of Peterson's arrest — Peterson never told CSC of the arrest himself — and informed the acting warden. ey put Pe- terson on paid leave for several shifts while deciding what to do, then suspended him without pay on March 7, 2014, while a disci- plinary investigation was conducted. CSC's investigation included interviews of the arresting officers, Peterson, and some of Peterson's co-workers. Peterson was told several times the investigation was separate from any criminal investigation, but Peter- son said little on his lawyer's advice. He said he suffered from PTSD and chronic back pain, but provided no information other than saying he had seen a psychiatrist. CSC didn't search for more information as it felt Peterson was obligated to provide it to sup- port his claims. When the investigation was completed, Peterson was given a draft copy but refused to acknowledge it. His criminal trial was dragging on and CSC was finding it harder to stay in touch with him, so it decided to ter- minate his employment on Jan. 7, 2015. e termination letter stated that the in- vestigation determined Peterson's actions were inconsistent with his role as a peace offi- cer. His admitted drug use, improperly stored firearms, and dishonesty violated CSC's stan- dards of professional conduct, the value and ethics code for the public sector, and the stan- dards of conduct outlined in the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers. It also said CSC couldn't trust him working with inmates with similar offences who were aware of the arrest or with firearms, and me- dia coverage of the arrest and trial damaged CSC's reputation and public trust. Peterson grieved the dismissal, claiming his PTSD and other mental issues weren't given consideration in CSC's decision to terminate. He also pointed to his clean disci- plinary record and argued CSC should have looked at possible positions where he could work without needing a firearm or direct contact with inmates. Adjudicator Margaret T.A. Shannon not- ed that while Peterson had a "lengthy career in the world of corrections," but he had only been an employee of CSC for less than four years, from 2011 to early 2015. Peterson's ar- rest was a serious matter, particularly since the nature of the charges — drugs and fire- arms — related directly to his correctional officer duties, where he dealt with individu- als with similar charges and which required a high level of trust and responsibility. Shannon found that CSC's investigation was a proper one and involved interviews with all pertinent people such as the police and co-workers. If the investigation didn't cover all the bases, it was because of Peterson's refusal to co-operate. While it was his right to not answer questions because of the separate criminal matter — as his lawyer advised him — it gave CSC less to work with when making its disciplinary decision, said Shannon. Shannon also found that CSC was un- aware of any medical issues, as Peterson only briefly mentioned potential mental health issues but didn't provide any further infor- mation — and he hadn't actually been diag- nosed with PTSD, as it was a self-diagnosis with which his doctor disagreed. In addition, Peterson was fully aware that cultivating marijuana was illegal and his job would be at risk if he was caught. e fact he tried to hide what he was doing by secretly planting marijuana on a neighbour's prop- erty demonstrated he knew there could be consequences, said adjudicator Shannon. Shannon also found Peterson hadn't shown any remorse and took no steps to acquire marijuana legally — which he could have if he needed it for medical purposes. Combined with the negative media spotlight it brought on CSC, it was serious enough that demotion or discipline wouldn't do the trick. CSC had just cause for dismissal. "rough his actions, (Peterson) made himself unsuitable to be a (correctional of- ficer) …(Peterson) was well aware of the im- plications of his illegal activities if they were discovered," Shannon said. "His attempts to disguise them is proof of this and brings not only his suitability to be a (correctional officer) into question but clearly indicates that the employer's trust in him was not war- ranted which renders the continued employ- ment relationship untenable." For more information see: • Peterson v. Deputy Head (Correc onal Ser- vice of Canada), 2017 CarswellNat 1730 (Can. Pub. Service Lab. Rel. Bd.).

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