Probation officer’s mishandling of clients too risky

Officer's failure to follow policy monitoring clients created risk to the public
|Canadian Employment Law Today|Last Updated: 07/23/2014

A Manitoba arbitrator has upheld the dismissal of a probation officer who was too careless in his handling of cases.

Daniel Benger was a probation officer in the family violence probation unit of the Manitoba Justice Department. He supervised individuals who were on probation or serving conditional sentences, making sure they followed court-ordered conditions and performing risk assessments. Benger began his employment as a correctional officer in 1986 but was redeployed in 1996.

Probation officers used a correctional offender management system (COMS), an electronic file containing appointments, details of client meetings and client information. In September 2008 Benger received a letter from his area director detailing a series of performance issues over a long period, including a lack of organization, failing to verify information, not updating databases with client information and making errors in documenting breaches of probation orders. The letter was not official discipline, but was intended to inform Benger he needed to improve his performance and to stress the importance of properly managing cases. Benger received three other “letters of direction” and one reprimand for similar issues between 2008 and 2010.

A new director arrived in January 2012 and, after reviewing Benger’s cases, she began regularly meeting with him to review his caseload. There were still issues with his recordkeeping in COMS, so they continued to review how to do things and the director also emailed follow-ups.

In November 2012, it was discovered Benger had allowed a client to change residences in breach of a court order. This wasn’t allowed without a variation from the court, but Benger said a previous manager had told him he could allow it. The director was concerned because such a variation wasn’t within the jurisdiction of a probation officer, and as a result of the client’s move Benger didn’t know where the client was living or whether the client had gone through the family violence management program. As it turned out, the client — who had been convicted of domestic assault — was living with the victim of the crime and had not completed the program.

Benger claimed he had not received adequate training and coaching and he didn’t know the whole process. However, the director knew Benger had been trained and attended review meetings but kept making the same mistakes, which made the Department of Justice look bad and created risk to the community.

In February 2013, Benger went on vacation for two weeks and failed to advise anyone of appointments scheduled with clients during his leave. He also took his appointment book home — though proper procedure was to leave his appointment book in his locked filing cabinet at work. The problem was only discovered when a client called regarding an appointment, causing confusion in the department. The director had to go through COMS and ensure all the clients were seen.

Benger said he took his book home with him because he had been subpoenaed to court and he might need it. He claimed he didn’t know he had to tell anyone about his agenda when he left, but the director knew he had been told not to take his appointment book home on holidays.

Though no one got hurt because of the two incidents, the director felt Benger’s actions created a significant amount of risk for the Department of Justice and the public. In addition, Benger didn’t seem to appreciate the gravity of his misconduct. The director decided to terminate Berger’s employment for not following directions, failing to document properly, breaching policy and guidelines, failing to recognize violent tendencies of offenders, failing to initiate breaches of probation order, and failing to collect collateral information to verify client data.

The arbitrator found Benger’s explanation for the two incidents did not excuse them. Allowing a high-risk offender to move in with his victim while there was a court order prohibiting it wasn’t acceptable, even if a previous manager said he could make such decisions, said the arbitrator. And Benger’s claim that he didn’t know he needed to inform someone about his scheduled appointments or the fact he took his appointment book with him when he left for vacation not only was contradicted by the department’s training regime, but also just didn’t make sense, said the arbitrator.

“(Berger’s) failure to notify the employer as to scheduled appointments during his vacation and his removal of his appointment book are strong indicators that this employment relationship was irreparably broken,” said the arbitrator. “Taken together, the last two incidents were sufficient in and of themselves to justify termination.”

The arbitrator determined that there were problems with Berger’s performance over a long period of time and the department tried to work on it, but Berger just didn’t improve. The November 2012 and February 2013 incidents were the last straw for the department, and termination was an appropriate response, said the arbitrator. See Manitoba and MGEU (Benger), Re, 2014 CarswellMan 231 (Man. Arb.).