You Be The Judge

[Turkeytop]

Grievor - Male,age 39

Job Title - Guard

Seniority - 7 years

Rate of Pay - $45/hr

Nature of Grievance - Improper Discharge

Remedy Sought - Reinstatement with full monetary compensation and no loss of Seniority

The Employer, Corrections Canada, operates all Federal Prisons in Canada. The maximum security facility, where the grievor was employed is in Eastern Ontario.

In all maximum Security prisons, inmates are not permitted to have cell phones. The administration at this facility had reason to suspect that some inmates did, in fact, have phones.

They set up a radio surveillance operation to intercept their calls.

Prison inmates have no right to privacy in their communications. So no court order or warrant was needed to conduct the surveillance.

During the course of the surveillance they intercepted communications between inmates and one of the prison guards. They learned that the guard was trafficking in cell phones and smuggling them in to the prisoners .

They identified the guard and fired him immediately.

The Union filed a grievance alleging improper discharge. The Union argued that the Employer could not rely on evidence obtained against the grievor by radio surveillance because the evidence had been obtained without proper legal authority.

Does the grievance succeed?

[Bryce]

Depends. Do guards give up their right to privacy on prison grounds in Canada too?

[Deleted User 14896]

I'm hesitant to answer without waiting for, like Paul Harvey says, the rest of the story.
With Turkey's arb stories, he often waits a couple of days, and then adds another tidblt to the tale which changes what I would of answered.

Based upon what he has told us so far, I'm curious if the guard was formally told the inmates can't have cells. Yes, the inmates have no right to privacy in their communications.
But that's the inmates. We can all assume, and we would be correct, that the guard knew doggone well the inmates are not allowed to have cells.
I don't think the union can argue the evidence had been obtained without proper legal authority, based upon what Turkey has told us so far.
But there's still wiggle room if it's not an actual written condition of employment to not give the inmates a cell.

[audiophile]

I say he stays fired.

A maximum security facility - I doubt there is a "I didn't know" clause.

[Bryce]

I say he stays fired.

A maximum security facility - I doubt there is a "I didn't know" clause.

In the good old US of A, it wouldn't matter if he knew, didn't know, or willfully broke the law, if the evidence was obtained in an illegal manner.

[audiophile]

Canada protections are weaker, and once it is transmitted over the air its no longer considered private.

Or at least there is lot of debate.

[bmw]

I would say that by communicating with people whom he knew had no right to privacy that he knowingly and willingly waived any right to privacy that he may have had. As such, I would say the grievance fails.

[Turkeytop]

I say he stays fired.

A maximum security facility - I doubt there is a "I didn't know" clause.

. This wasn't my Union. I just read about it in a newsletter our legal department sends out.

The Union didn't use the "I didn't know" defense. The Union just argued that the Employers telephone recordings were inadmissible as evidence.

For its part, the Employer argued that it only needs the consent of one of the parties to record a telephone conversation. They argued that, since an inmate can not withhold his consent, they had their implied consent

[bmw]

They argued that, since an inmate can not withhold his consent, they had their implied consent

That, in my opinion, is a losing argument. Consent is not a passive thing; it is an active one and as such requires a person to actively give permission to do something. The fact that an inmate does not have the protection of consent is irrelevant. The bottom line is that no party in a position to grant consent actually granted consent.

That said, I still think my argument stands: that the guard waived his consent protection by talking to someone who he knew could be legally monitored without such consent.

[Turkeytop]

That said, I still think my argument stands: that the guard waived his consent protection by talking to someone who he knew could be legally monitored without such consent.

If the Employer can convince the Arbitrator it had the consent of one of the parties, whether or not the other party consented is irrelevant.

[Turkeytop]

So this has really gone viral. No relies in the past four days.

I know you're all dying to know how it came out.

The Arbitrator accepted the Union's argument.. In his award he stated that implied consent is not the same as affirmed, positive consent. Therefore he accepted the Union's position that the recording had been made without the consent of either party and was, therefore, inadmissible as evidence.

Without that evidence, the employer had no case at all. He ordered the grievor reinstated with full redress.

That was the end of the story.

But I've heard that the Employer does not want the guy back at all and is in negotiations with the Union to reach a settlement whereby the person would resign in exchange for an amount of money to be paid out by Corrections Canada.