The Correctional Service of Canada (CSC) fired a psychologist three years ago after he pled guilty and was convicted of criminally harassing a former co-worker while off-duty. However, an adjudicator has decided the offense didn’t sufficiently cause damage to the employment relationship to warrant termination.
Frederick Tobin is a psychologist who worked as a program director of the female behaviour unit in the CSC’s Ontario Regional Treatment Centre (RTC) at Kingston Penitentiary in Kingston, Ont. He was considered a good employee and was appointed acting deputy warden of Collins Bay Institution, another penitentiary in Kingston, on Feb. 25, 2002. Tobin also had a clean disciplinary record and had never been accused of harassing anyone at work.
In March 2001, Tobin, who is married with children, began an affair with a volunteer who had begun work at the RTC two months previously and later became a casual employee until January 2002. He didn’t tell the warden of Collins Bay Institution of the ongoing affair when he was appointed deputy warden though several senior staff knew about it. The co-worker had previously been a casual clerk at Collins Bay. Over the course of the affair, Tobin was never warned or disciplined.
Several months after the co-worker left CSC and the affair subsequently ended, Tobin continued to contact the woman. On July 2, 2002, he left several “vulgar, profane, despicable and inappropriate” messages on her voicemail. His behaviour led to him being charged with six offences including criminal harassment.
On July 9, 2002, CSC learned of Tobin’s arrest and charges and suspended him without pay pending an investigation. CSC’s deputy commissioner for Ontario reviewed his case and allowed him to return to work in November 2002 with retroactive pay but not to the deputy warden position or his role with the RTC where he would have contact with inmates.
On April 19, 2004, Tobin pled guilty to a charge of threatening conduct and the other charges were dismissed. On April 23, he was again suspended without pay and a meeting was arranged for April 28 to discuss his guilty plea. The investigation found the former co-worker claimed he had harassed her at work and continued to harass her over a period of time after she had left CSC.
The deputy commissioner felt his conduct was a serious violation of CSC’s code of professional conduct, it was incompatible with his duties as a psychologist and “brought the Correctional Service of Canada into disrepute in the eyes of the public.”
However, these points were not mentioned to Tobin in the April 28 meeting. Tobin told his superiors he was innocent and he didn’t feel his behaviour had been criminal. He said he had pled guilty to one of the charges to avoid a long and costly trial which would be stressful to his family.
Following the meeting, CSC terminated Tobin effective April 23, 2004, the date of his second suspension. Tobin filed a grievance, claiming he hadn’t had a chance to address CSC’s conclusions he couldn’t do his job effectively, he brought disrepute to his employer and he had damaged its trust. He pointed out he was never offered counseling or courses to deal with any performance issues nor offered an alternate job instead of termination. He also claimed the incidents leading to the charges happened off-duty and shouldn’t affect his job.
CSC argued the affair indicated an increasing lack of good judgment on Tobin’s part. Beginning the affair in the first place, having her accompany him to a training conference for managers in June 2002 and his behaviour which led to his arrest all demonstrated an increasing tendency towards bad decisions resulting from poor judgment. It also claimed his insistence he would be exonerated before he pled guilty showed he was “less than forthright” with his supervisors about the charges. Finally, CSC pointed out his position as acting deputy warden was “a very senior and important one with the CSC” and played an important role in the rehabilitation of inmates at the penitentiary. Good judgment was essential to the position.
The adjudicator first examined whether Tobin’s off-duty conduct in July 2002 damaged CSC’s reputation with the public, as it claimed. Other than a few newspaper articles covering the charges and the guilty plea, the adjudicator couldn’t find any evidence this was the case. The adjudicator looked to the testimony of two senior employees who worked with Tobin and both felt his guilty plea didn’t affect them or their workplace, as well as the deputy commissioner who “did not terminate Mr. Tobin because of media coverage.”
“The contents of the newspaper articles could not be reasonably viewed as flattering or enhancing in any way to the reputation of the CSC,” the adjudicator said. “They shed no light whatsoever on harm suffered by the CSC that I would need to conclude that harm was caused by Mr. Tobin.”
The adjudicator also found CSC’s main argument for termination faulty. CSC claimed it didn’t trust Tobin to do his job effectively because of his conduct, but the adjudicator pointed out he had been reinstated in November 2002 and worked until his second suspension and termination on April 23, 2004.
“The only thing that happened between July 2002 and the termination of Mr. Tobin’s employment was his plea of guilty on April 19, 2004,” the adjudicator said. “But that was not the behaviour complained of. There has been no suggestion that during this period Mr. Tobin was unable to perform his duties satisfactorily.”
The adjudicator found other instances where CSC staff had faced criminal convictions for offences including criminal harassment, impaired driving and spousal assault and had kept their positions without any problems from co-workers or the public.
The adjudicator found for such discipline as termination to be justified for off-duty conduct, the employer must show a link between the conduct and the workplace. Though the victim was a former employee of CSC and co-worker of Tobin, the events which resulted in the criminal charges and Tobin’s firing, they could not be connected sufficiently to warrant dismissal.
The adjudicator ruled the CSC must reinstate Tobin to his position as a consultant psychologist in the RTC without loss of pay or benefits and remove any record of his termination from his file.
“Tobin’s off-duty behaviour is beyond the CSC’s control and any discipline imposed for that off-duty behaviour cannot stand,” the adjudicator said. “As tragic as the events were for the two families, these events are the result of a personal matter outside of his work with the CSC.”
For more information see:
Tobin v. Canada (Treasury Board – Correctional Service)
, 2007 CarswellNat 695 (Can. Pub. Service Lab. Rel. Bd.).
Employee shouldn’t be fired for off-duty harassment, adjudicator rules
An employee with the Correctional Service of Canada (CSC) has been reinstated to his job after he was fired when he pled guilty to threatening a former co-worker with whom he had an affair.
Frederick Tobin had an affair with a co-worker from March 2001 until February 2002. During that time, he worked as a consultant psychologist in the Ontario Regional Treatment Centre for female inmates in Kingston, Ont., and was appointed acting deputy warden at Collins Bay Institution in Kingston.
In July 2002, a few months after the affair had ended, Tobin had a series of altercations and made several threatening phone calls to the woman. He was charged with six offences, including criminal harassment. He was suspended without pay and reinstated in November 2002.
On April 19, 2004, Tobin pled guilty to threatening misconduct. On April 23, he was fired. CSC claimed his behaviour showed bad judgment, which was important in his job. It also said he brought disrepute to CSC and he violated its trust he could do his job properly.
The adjudicator found there was no evidence CSC’s reputation had been harmed and Tobin’s conduct had taken place off-duty. There was nothing indicating his behaviour outside of work would affect his ability to do his job. The fact he had worked without any problems from his reinstatement in November 2002 until his termination in April 2004 after the guilty plea demonstrated CSC’s fears were unfounded.
The adjudicator ruled Tobin’s off-duty conduct was unrelated to his job and he should be reinstated to his position of consultant psychologist with full pay and benefits.
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