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HomeMy WebLinkAbout2021-0231.Mangone et al.24-09-03 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-0231; 2021-0232 UNION# 2021-0678-0003; 2021-0678-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Mangone et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel HEARING August 25, October 29, 2021; January 24, April 11, May 26, June 2, 7, 14, July 25, August 29, October 7, 17, 17, 27, November 17, December 6, 12, 2022; January 30, May 11, 18 and June 1, 2023 - 2 - Decision [1] By disciplinary letters dated April 26, 2021, Superintendent Darlene Leblanc terminated the employment of Matthew Mangone and Christopher Morettin, and suspended Michael Brown for 20 (8 hour) days. They filed grievances challenging the discipline on April 26, 2021. At the relevant time, Mangone, Morettin and Brown were Correctional Officers (“COs”) at the Algoma Remand and Treatment Centre (“ARTC”). Morettin and Mangone were permanent employees. Morettin’s continuous service date is October 3, 2016, and Mangone’s continuous date is July 26, 2016. Brown is a fixed term employee with a continuous service date of July 31, 2017. The three employees had a discipline free employment record. The main events giving rise to the discipline took place on February 4, 2021. The parties settled Brown’s grievance on a without prejudice basis during the course of the hearing with the result that the only matters now before me are the termination grievances filed on behalf of Mangone and Morettin. [2] The relevant events giving rise to the grievances did not come to the attention of senior management until on or about February 16, 2021, when the police contacted the ARTC to advise that inmate JSA had made a complaint about being assaulted by certain inmates in the day area of the Remand South Wing (“the South Wing”). Since there were no Occurrence Reports (“ORs”) relating to the relevant events, senior management was unaware of the alleged assaults. JSA was interviewed and the relevant videos were pulled. The Employer became concerned about the conduct of Mangone, Morettin and Brown, who at the relevant time were working in the Remand Control Module (“RCM”) and were responsible for the care, custody and control of inmates in the South Wing, as well as inmates in the Remand West Wing (“the West Wing”). The Employer initiated a local investigation. A number of individuals, including Mangone, Morettin and Brown, were directed to provide ORs relating to JSA and the relevant events of February 4, 2021. Allegation meetings were held on March 8 and March 31, 2021, with Mangone and Morettin, and on March 8, 2021 with Brown. Deputy Superintendent (“DS”) J. Lepore conducted these meetings and DS B. McMillan took notes of the meetings. At the conclusion of the investigation and disciplinary process, and as reflected in their disciplinary letters, the Employer discharged Mangone and Morettin and suspended Brown for the following reasons: 1. On Thursday February 4, 2021, you acted in a negligent manner by failing to undertake and fully perform the duties specific to your role and responsibilities as a Correctional Officer. Specifically, it is alleged you failed to properly and diligently take action when you witnessed an inmate-on-inmate assault and harassing behaviour - 3 - by inmates toward another inmate. In doing so, you breached Ministry policy and caused unnecessary risk or bodily harm to that inmate. 2. On Thursday February 4, 2021, you failed to report the inmate-on- inmate assault and harassing behaviour by inmates toward another inmate. Specifically, it is alleged that you failed to inform your supervisor during your scheduled shift of the incident, and that you failed to submit an occurrence report and an incident and injury report on this date. In doing so, you breached Ministry policy and you failed to provide the inmate with the appropriate health care or the opportunity to file a complaint of assault. 3. On Thursday February 4, 2021, you failed to wear Ministry mandated PPE, specifically your surgical/procedural mask and eye protection, in accordance with Ministry direction, policies and procedures in the Remand Control Module. Further, while you were not wearing your Ministry mandated PPE in accordance with Ministry direction and policies, you came into close contact (within 6 feet) with other staff and/or inmates. In Mr. Morettin’s disciplinary letter, the Employer also relied on the following ground: 4. On Thursday February 4, 2021, you failed to follow the Ministry policy regarding the use of personal electronic devices. Specifically, it is alleged you were in possession of and used your personal electronic device while in the Remand Control Module. [3] There are essentially two reasons why the Employer decided to discharge Mangone and Morettin. The first reason is that they did not intervene to protect JSA when he was harassed and physically assaulted by inmates on February 4, 2021, soon after the inmates had been unlocked in the morning. Included in the first reason is that they were not vigilant in their supervision of inmates in the South Wing. The second reason is that they did not report the inmate conduct against JSA, both to their supervisor, Sergeant Ashli Cucullo, and by filing an OR. The Employer determined that it could no longer trust Mangone and Morettin to perform the core duties of a CO. There is no dispute that the violations of what can be described as the PPE and cell phone policies were not a significant factor in the Employer’s decision to discharge Mangone and Morettin. [4] This was a lengthy proceeding in which the amount of oral and documentary evidence was significant. There is no dispute that the burden of proof in this - 4 - proceeding is on the Employer and that the standard of proof is on the balance of probabilities. My task is to carefully assess the evidence to ensure that it is sufficiently clear and cogent to satisfy the balance of probabilities test. The Employer called the following individuals to testify: Mr. T. Innis, Security Manager; Mr. K. Davis, Operations Manager; DS Lepore; Ms. J. Wright, Mental Health Nurse (“MHN”); Mr. R. Nott, Maintenance Mechanic 3; DS McMillan; Sergeant Cucullo; and Superintendent Leblanc. The Union called the following witnesses: Morettin, Mangone and Brown; Mr. F. Perri, Social Worker; and Mr. J. Miller, Local Union President. [5] The submissions of counsel serve to highlight the positions of the parties and the key factual disputes. The Employer’s position is that a core duty of COs as peace officers is to protect the health and safety of inmates under their care and that Mangone and Morettin failed in their obligation to care for JSA when they did not intervene to protect him on February 4, 2021, and to be sufficiently vigilant in the circumstances. Employer counsel submitted that this is a serious offence that was compounded by the failure of Mangone and Morettin to be truthful about the full extent of what they saw inmates doing to JSA. Counsel also submitted that Mangone and Morettin violated important Employer policies by not submitting timely ORs, by not telling their Sergeant about the assaults and by not initiating an Accident & Injury (“A & I”) Report. Counsel submitted that they failed to take responsibility for the serious aspects of their misconduct and instead deflected responsibility by blaming others and by not being truthful about what they had disclosed to Wright and Cucullo. While submitting that Mangone and Morettin contravened the PPE policy and that Morettin contravened the cell phone policy, counsel reiterated a concession made by the Employer during the proceeding, and noted by Superintendent Leblanc during her testimony, that the contravention of these policies alone would not have resulted in the discharge of Mangone and Morettin. Counsel submitted that the totality of the serious misconduct of Mangone and Morettin, demonstrated that the Employer had just cause to terminate their employment, particularly in light of their seniority, the breach of trust and the irreparable breakdown in the employment relationship. Counsel submitted that there was no sound basis for substituting a different penalty. In relation to this last submission, counsel argued in his reply submissions that the Employer did not discriminate against Mangone and Morettin when it elected in the circumstances to terminate their employment and to issue Brown a 20-day suspension. [6] In support of his submissions, Employer counsel referred me to the following decisions: AMAPCEO (Bhattacharya) v. Ontario (MGCS), 2017 CanLII 21084 (ON GSB Anderson); AMAPCEO (Botari) v. Ontario (MOL), 2019 CanLII 118462 (ON GSB Anderson); OPSEU (Beltrano et al.) v. Ontario (MCSCS) (2008), GSB No. 2003-3597 et al. (Petryshen); OPSEU (Lavallee) v. Ontario (MCSCS), 2011 CanLII - 5 - 67954 (ON GSB Watters); R. v. Feeney, 2008 ONCA 756; R. v. Sammy, 2004 ONCJ 32; McKenzie v. Deputy Head (Correctional Services of Canada), 2010 PSLRB 26 (Quigley); OPSEU (Pratt) v. Ontario (MCSCS), 2018 CanLII 109257 (ON GSB Sheehan); OPSEU (Miller) v. Ontario (MCSCS), 2019 CanLII 118279 (ON GSB Devins); OPSEU (Gardiner et al.) v. Ontario (SOLGEN), 2021 CanLII 17415 (ON GSB Stephens); OPSEU (Langford et al.) v. Ontario (MCSCS), 2017 CanLII 30327 (ON GSB Stephens); Faryna v. Chorny, [1951] BCJ No. 152 (BCCA); OPSEU (Horan) v. Ontario (MPSS) (2002), GSB No. 0670/01 (Herlich); OPSEU (Bellamy/Brown) v. Ontario (MCSCS), 2011 CanLII 49512 (ON GSB Petryshen); and, OLBEU (McIlwain) and LCBO (2005), GSB No. 2002-2077 (Watters). [7] The Union essentially takes the position that Mangone and Morettin engaged in conduct that deserved some discipline, but that the termination of their employment was an excessive response in light of all the circumstances. Union counsel conceded that Mangone and Morettin should have intervened earlier to protect JSA, but submitted that they did not observe JSA being physically assaulted before he entered the sally port to leave the RSW. Counsel submitted that Mangone and Morettin did report the physical assault on JSA in the sally port to Cucullo and Wright. He also argued that the seriousness of their failure to file an OR on February 4, 2021, is mitigated by the fact that Cucullo told them that it was not necessary to submit an OR. Counsel submitted that the breaches of the PPE and the cell phone policies committed by Mangone and Morettin had been condoned by the Employer and for this reason were not deserving of any discipline. Referring in particular to Mangone’s and Morettin’s discipline free record, their seniority and the admissions and remorse they had expressed for certain aspects of their conduct, counsel submitted that the substitution of lesser penalty was warranted. Counsel emphasized the 20-day suspension imposed on Brown for essentially the same transgressions and argued that the discipline issued to Mangone and Morettin was not a proportional response by the Employer. Considering the suspension issued to Brown and the penalties substituted by arbitrators in similar types of cases, counsel submitted that the substitution of a 20 to 30-day suspension for Mangone and Morettin would be appropriate in this case. [8] In addition relying on Canadian Labour Arbitration, Brown & Beatty, 5th Edition, section 7:70 (Discrimination), Union counsel referred me to the following decisions: Re Prince George School District No. 57 and C.J.A., Local 2106 (1988), 34 L.A.C. (3d) 228 (Dorsey); Re Joseph Brant Memorial Hospital and O.N.A. (2010), 211 L.A.C. (4th) 269 (M. Newman); R. v. Handy, 2002 SCC 56; Re Westfair Foods Ltd. and U.F.C.W., Local 832 (1992), 29 L.A.C. (4th) 222 (Steel); Re NTN Bearing MFG. Canada and U.S.W.A., Local 9042 (2009), 185 L.A.C. (4th) 334 (Marcotte); Re Kinsey and Deputy Head (Correctional Services of Canada) (2015), 254 L.A.C. - 6 - (4th) 403 (Shannon); Re Alberta (Solicitor General-Correctional Services Division) and A.U.P.E. (2006), 145 L.A.C. (4th) 382 (Bartee); and, Re Ontario (MCSCS) and OPSEU (Marshall) (2013), 236 L.A.C. (4th) 91 (Abramsky). [9] In determining the facts, I carefully reviewed all of the evidence and the submissions of counsel relating to the evidence. In particular, I reviewed the video evidence, the relevant ORs, the other documentary evidence and the testimony provided by the witnesses. I note that the video of the RCM and the video of the South Wing, both without audio, could be set up to view what was occurring at those locations at virtually the same time. As the submissions of counsel disclosed, there were some significant conflicts in the evidence, particularly in the testimony given by Mangone and Morettin, on the one hand, and the testimony given by Cucullo and Wright, on the other, about whether Mangone and Morettin told them that JSA had been assaulted by inmates on February 4, 2021. In resolving the conflicts in the evidence and in assessing credibility, I have considered the usual factors, including what is most probable having regard to all of the evidence. [10] I intend to proceed by setting out the relevant evidence relating to each of the Employer’s allegations against Morettin and Mangone. I will then provide my findings of fact on those evidentiary matters that were in dispute and my conclusions as to the validity of the Employer allegations. Finally, I will set out my determination as to whether there is a basis for substituting a different penalty in this case. I will address first what happened to JSA in the South Wing and in the sally port, followed by the violations of the PPE and cell phone policies. I will then deal with the alleged failure of Mangone and Morettin to comply with their reporting obligations and the other aspects of the second allegation. [11] As noted previously, the duties of COs assigned to the RCM include monitoring inmates on the South Wing and the West Wing. On February 4, 2021, the South Wing housed 19 inmates and the West Wing housed 24 inmates. The COs in the RCM can watch the inmates in each Wing through a glass wall. Each Wing has cells at floor level as well as cells on an upper tier that are accessed by stairs and a day area in front of the cells where inmates can have their meals and congregate when not locked in their cells. There are fixed tables with chairs spaced apart in the day area. Inmates are locked in their cells at various times, including during the night, and are usually unlocked by about 8:00 a.m. [12] Inside the RCM there are such items as a large desk, phones, a key press and a computer with a monitor and other monitors. One of the COs will be stationed at the touch screen monitor to control various functions, including the unlocking of doors, such as the N1 door, which provides entry into and exit from the RCM. - 7 - Entry into the South Wing sally port is first through the N2 door, down short hallway, and then into the South Wing through the N3 door. For security purposes, sally port procedures require that the N2 and N3 doors not be open at the same time. It is possible for these doors to be interlocked, meaning that they can be opened at the same time. However, the interlocking of these doors is generally not safe for staff or for the security of the institution. What occurs in the South Wing sally port is clearly visible to staff in the RCM because the sally port is just on the other side of the glass wall that faces into the South Wing. As part of their duties, two COs assigned to the RCM are required to do a tour of each Wing every 30 minutes. The Sergeant’s usual routine during the morning is to attend at the RCM at about 7:30 a.m. to do a tour of both Wings and at about 10:00 a.m. to do cell inspections in both Wings. The Sergeant might attend at the RCM more often if issues arise which require the Sergeant’s presence. The key press contains at least forty keys which are labeled in some way to identify the key to be used to open a particular door manually. [13] Although Morettin, Mangone and Brown started their shift at different times on February 4, 2021, they were present in the RCM prior to the unlocking of the inmates in the South Wing. Prior to unlocking the inmates, Morettin, Mangone and Brown were aware of certain information relating to JSA. They were aware that he was an inmate with mental health issues and that he should not have been housed in the South Wing. They were aware that for the second day in a row JSA had been banging on his cell door during the night, thereby keeping the other inmates in the South and West Wings awake. They were also aware that many inmates in the South Wing were very upset with JSA and wanted him removed from the South Wing. Morettin noted in his OR that he and Mangone told Cucullo about the situation with JSA during her first tour and that he also told her that JSA should not have been placed on the South Wing because of his mental health issues. He noted that Cucullo told them that she would try to have him moved. There is some dispute about what they discussed and when the discussion occurred. Nonetheless, Morettin, Mangone and Brown were well aware before the inmates were unlocked that JSA could be at some risk of harm from the inmates in the South Wing. In my view, this is a significant factor for assessing their conduct on February 4, 2021. [14] The inmates in the South Wing were unlocked soon after 8:00 a.m. and were provided with breakfast. By as early as 8:08 a.m., JSA was sitting alone at a back middle table with his meal on a tray in front of him. The harassment and the physical assaults against JSA took place during a period of about 8 minutes, from about 8:16 to 8:24 a.m. The three COs observed that a number of inmates approached JSA to verbally harass him about the banging noises he had made during the night. This verbal harassment continued at other times during the - 8 - relevant 8-minute period. At about 8:16:32, inmate ZB, sitting at a table close to JSA, threw a bottle towards JSA, knocking his metal meal tray to the floor. At this time, Mangone and Morettin were looking towards the West Wing and Brown appears not to see the bottle being thrown either. The three COs do hear the loud noise made by the metal tray hitting the floor. Mangone thought that the noise came from the West Wing and indicated that he assumed JSA dropped the tray, which he said was a daily occurrence with inmates. Brown could not recall any specifics of the conversation the three of them had after they heard the tray hit the floor and he indicated that they did not have any concern because they did not know what had happened. It appeared to Morettin that JSA threw his tray to the floor. Brown leaves the RSM at about 8:17:13. Morettin also leaves the RSM shortly thereafter to go to the meal hatch to discuss a laundry issue with inmate JB. JSA can then be seen on the video cleaning up the mess caused by his meal tray hitting the floor. At about 8:17:58, inmate BW approaches JSA from behind and hit him once on the side of his face. Morettin testified that he did not see BW strike JSA from his position at the meal hatch. Although the video appears to show him facing the South Wing, Mangone testified that he did not see BW strike JSA because at the time he was looking towards Morettin at the meal hatch, and not out at where JSA was located in the day area. [15] At about 8:19:11, JSA left the day area, took the stairs to the upper tier, walked across the entire length of the upper tier and entered his cell. At about 8:19:48, Morettin returned to the RCM. At about 8:20:40, JSA left his cell and when he got halfway along the upper tier inmates were yelling at him and at least three inmates at floor level began throwing food at him. JSA got down low and food items were thrown at him at least 13 times for roughly 30 seconds. Mangone and Morettin refer to observing food being thrown at JSA in their OR. At the first allegation meeting, Mangone indicated that he attributed the food throwing to general horseplay and stated that he did not feel that JSA’s life was in danger. At his first allegation meeting, Morettin indicated that the food throwing was just the inmates blowing off steam. During their testimony, they both claimed that they did not see the entire food throwing incident and did not feel at the time that the incident constituted a serious assault that warranted an intervention. Mangone indicated that he did not see any malicious intent and it did not look like JSA felt threatened. The video shows Morettin and Mangone laughing or at least smiling as they watched food being thrown at JSA. When Employer counsel asked them about this, Morettin indicated that he could not say that he was laughing and Mangone indicated that he smiled because there may have been a joke made while they were talking, but that he was not laughing at an inmate’s misfortune. They both indicated that entering the South Wing was not possible at that time given Brown’s absence and that Morettin intended to address the issue with the inmates on his - 9 - next tour which would take place soon. Morettin testified that they were more focused on watching the South Wing after the food throwing incident. [16] When the food throwing ended at about 8:21:20, JSA got up and walked toward his cell. Inmate JW approached and spoke to him. Brown returned to the RCM at about 8:21:52. Morettin and Mangone indicated that Mangone told Brown about the food throwing soon after he returned to the RCM, but Brown denied this. JSA came down the stairs from the upper tier, followed by inmate JW. At the bottom of the stairs JSA turned to his left and ended up at the back of the left corner of the day area, close to the cells. While at that location, at about 8:22:45, he is punched in the stomach by inmate ZB and inmate JW attempted to strike JSA at least twice. These interactions take place within a matter of seconds. Mangone, Morettin and Brown testified that they did not see JSA being struck at the left rear corner of the day area. Morettin is in the corner of the RCM with only his boots captured on the video so it is not possible to see where he is looking. It appears that Mangone is looking towards the stairs in the South Wing with Brown moving in front of him. Mangone indicated that his eyes were moving all over the place. JSA then quickly walked over to the intercom, pushed the button at about 8:22:56, and indicated that he wanted to leave the South Wing and moved toward the N3 door. The above description of the harassment and physical assaults that occurred in the day area took place during a period of about 6½ minutes. [17] Using the touch screen, Mangone opened the N3 door at about 8:23:10 and JSA entered the sally port and moved toward the N2 door. Inmate JW immediately followed JSA into the sally port and moved towards him while the N3 door remained open. JW initially had a conversation with JSA close to the N2 door. Once JSA was in the sally port, Morettin asked Mangone to open the N1 door so he can exit the RCM and take JSA out of the sally port through the N2 door. Mangone indicated that he could not open the N1 door because the screen was frozen due to a software issue. This was not an uncommon issue and required some time for the system to reset. There was a brief discussion about getting a key from the key press to open the N1 and N2 doors manually, but Mangone mentioned that this was not a viable option since opening the N2 door when the N3 door was open is against policy due to the security risk. Mangone told Morettin to wait for the screen to reset. Mangone testified that he thought that this might be a set up by the inmates because this was not a typical fight given that JSA and JW initially were talking rather than just exchanging blows. Morettin and Brown were close to the glass wall, watching what was taking place in the sally port. At about 8:23:24, JW punched, kicked at and took another punch at JSA. JW appears to back off but resumed his physical assault with a strong punch with his right hand to JSA’s head. Given his smaller size, JSA is unable to adequately defend himself. At about 8:23:58, Morettin began banging on the glass wall and yelling at JW to - 10 - stop and to return to the South Wing. At about 8:24:04, JW exited the sally port and returned to the South Wing. JSA and JW were in the sally port together for about 45 seconds. At about the time the N3 door closed, Mangone’s screen had reset and he opened the N1 door for Morettin and Brown to exit the RCM in order to get JSA out of the sally port as the N2 door could now be opened as well. Morettin, Mangone and Brown explained any delay on their part in responding to the sally port incident was because they did not believe that JSAs life was in danger and that the incident happened so quickly. Morettin at least recognized in hindsight that they should have responded sooner by attempting to use manual keys and by calling staff for assistance. Mr. Miller testified that the Joint Health & Safety Committee had recommended and management had agreed to have a staff key drill day in order to help staff become more familiar and more comfortable with the use of manual keys to open doors when the electronic system fails. He indicated that there had been a delay in implementing the key day and that it had not been implemented by February 4, 2021. [18] The relevant evidence concerning the contraventions of the PPE and cell phone policies was not in dispute and can be described as follows. Given the presence of COVID, employees and management were required to wear medical masks and eye protection. The cell phone policy prohibits the presence and use of cell phones within the secure part of the institution. The Union introduced video evidence which showed what was taking place on February 4, 2021, within the RCM from the start of Morettin’s shift until about 10:00 a.m. One of the purposes of this evidence was to show that persons generally did not wear their mask and eye protection and did use cell phones while in the RCM. This was the case with Morettin, Mangone and Brown, as well as other employees that had occasion to enter the RCM. This was also the case with Sergeant Cucullo. She was in the RCM four times during the morning on February 4, 2021. On entering the RCM, she typically removed her mask and eye protection, and she often used her cell phone. The COs in the RCM were in a position to observe her conduct in this regard and she was aware that employees in the RCM were not complying with the PPE and cell phone policies. Cucullo did not make any effort to address these policy violations. By letter dated August 24, 2021, Superintendent Leblanc suspended Cucullo for two days for failing to wear PPE in the Remand area on May 21, 2021. Mr. Miller testified that staff had been disciplined for not wearing PPE and that typically they have been given a one-day suspension for such a violation. He also indicated that the penalty for violating the cell phone policy ranged from a reprimand to a one-day suspension. Superintendent Leblanc indicated that she in part disciplined Morettin and Mangone for violating the PPE policy and Morettin for violating the cell phone policy because they were clearly not complying with the policies and that any failure on her part to address these violations could be seen as condoning their conduct. Cucullo was not disciplined - 11 - for her failure on February 4, 2021 to comply with the PPE and cell phone policies and for her failure to enforce these policies. Mangone and Morettin took responsibility for breaching the PPE and cell phone policies and apologized for their misconduct in this regard. [19] The relevant evidence in relation to the second allegation is as follows. Once JSA was taken out of the sally port, he told Morettin and Brown that the inmates in the South Wing wanted him to leave the unit because of his banging during the night. When asked if he was OK and wanted to see a nurse, JSA said that he was not hurt and did not want to see a nurse. JSA also told them that he wanted to be reunited with or to speak to his dead sister. JSA was then secured in the Remand interview room where he could be monitored. Morettin and Brown returned to the RCM and Morettin told Mangone about their conversation with JSA. Starting at about 8:29:00, Morettin and Brown did a tour of the South Wing and Morettin testified that he counseled inmate JW about his interaction with JSA in the sally port and told him that he might face further consequences. Brown testified that he could not recall whether Morettin counseled JW about his behaviour. [20] Morettin and Mangone testified about the discussions that occurred between them and Cucullo and Wright after JSA had been taken out of the South Wing. I find it unnecessary to detail everything that they discussed. I will focus on what the evidence was relating to what was communicated about JSA being physically assaulted and the preparation of ORs. At about 8:31:16, while Morettin and Mangone were in the RCM and Brown was absent, Morettin called Cucullo and had a brief conversation with her. Morettin and Mangone testified that Morettin told her that they saw inmate JW slap JSA in the sally port and that more blows were exchanged after the inmates had engaged in a further discussion. Mangone indicated that he recalled Morettin telling Cucullo that there was a fight between JSA and JW. Morettin indicated that Cucullo asked them to keep her posted. [21] At about 8:37.30, Mangone had a conversation with a nurse. Mangone and Morettin testified that Mangone told her about the entire incident in the sally port, including the slap and other assaults on JSA by JW. They indicated that the nurse was told that JSA needed to be assessed because he was assaulted in the sally port and because he had made suicidal remarks. They indicated that Mangone did not specifically ask for a MHN. In their ORs, Morettin and Mangone indicated that Mangone contacted MHN Jessica Wright to come down and do a suicide screening on JSA. Mangone stated at the March 8, 2021 allegation meeting that he called a MHN to have her come and assess JSA for suicidal ideations. Brown’s recollection was that their decision was to call a MHN because of JSA’s bad thoughts and the feeling that a MHN was needed to address his specific needs. In - 12 - his OR, Brown indicated that he told JSA that they would call a MHN for him when he and Morettin were securing him in the Remand interview room. [22] Cucullo was in the RCM from about 8:43:51 until 8:47:16. Morettin and Mangone indicated that the shift IC would only attend the RCM at that time if there was an issue on the unit. They testified that they told her at that time about everything that had occurred between JSA and JW in the sally port, including that the inmates exchanged words, then JW slapped JSA, and following a further discussion between them, more physical altercations took place. Mangone recalled that they told Cucullo about not being able to open the N1 door. They testified that they asked Cucullo if she wanted to interview JSA and to do an investigation that included a review of video and that she declined both suggestions. They indicated that they then asked her if she wanted them to write an OR and that she instructed them not to do so. [23] Wright entered the RCM at about 9:11:50 and left at 9:13:00. Morettin and Mangone testified that they essentially made the same comments to Wright that they had conveyed earlier to Cucullo, including that JW slapped JSA in the sally port, that some additional blows had been exchanged and that JSA had made some suicidal comments. Morettin and Mangone were aware that Wright was a MHN. They indicated that they understood that Wright would be assessing JSA for any physical injuries and for his current mental health status. Mangone took Wright to see JSA in the Remand interview room. [24] At about 9:20:15, Wright had completed the suicide screening tool with JSA and, near the N1 door, she advised Cucullo, in Mangone’s presence, that JSA was not suicidal. Cucullo then entered the RCM with Mangone and left at about 9:24:10. She advised them that JSA would be moved to the Special Management Unit. Morettin and Mangone testified that they asked her again if she wanted each of them to write an OR and that she responded that no reports were necessary because JSA had not sustained any injuries. They testified that they knew that not writing an OR was inconsistent with policy and that this was why they asked a second time about writing an OR. When Morettin was asked during examination- in-chief if either of them pointed out to Cucullo that not writing an OR in these circumstances was inconsistent with policy, he stated that they did not because once they were given an order not to write an OR, they followed it and did not want to be insubordinate. [25] Cucullo attended at the RCM at about 10:00 which was when she normally would attend to perform cell inspections in the South and West Wings. Morettin testified that, after the two previous conversations, he and Mangone felt uneasy about not - 13 - writing an OR and so they asked her again if she wanted reports completed and that Cucullo in essence said that no reports were needed. [26] During his testimony, Brown was asked about what he could recall of the conversations that took place when Cucullo was in the RCM. He indicated that those conversations took place with Morettin, Mangone and Cucullo and that he did not participate in them. He stated that as a fixed term employee, he played the role of a helper in the RCM and that as full-time employees at that post, Morettin and Mangone “steered the ship”. He also indicated on more than one occasion that he had tuned out of these conversations because he was dealing with personal issues and spending a lot of time on his cell phone. When asked why he did not write an OR about the JSA incident, Brown testified that Morettin told him that Cucullo had indicated that they did not need to write an OR and that he had no reason not to believe what he had been told. [27] Wright testified that she could not recall the details of specific discussions that she had with individuals in relation to JSA on February 4, 2021 because there was nothing of significance that occurred on that day. The information she testified about came primarily from her notes. She indicated that Remand unit officers had requested that she do a suicide screening tool for JSA. She was advised that inmates in the South Wing wanted JSA removed from the unit, but she did not recall being told anything about JSA being assaulted and she did not make a note about being advised that JSA had been assaulted. As a MHN, her focus is only on the mental health of inmates. If an assessment of physical injuries was required, she would refer such an assessment to a general health care nurse. Wright indicated therefore that she did not screen JSA for physical injuries. After interviewing JSA in the Remand interview room and utilizing the Suicide Screening Tool, she determined that a suicide watch was not necessary and suggested that JSA be moved to Fox South in the Special Management Unit, where he should have been housed all along. [28] Cucullo also could not recall how often she was in the RCM and the details of all of her discussions with staff about JSA during the morning on February 4, 2021, because from her perspective it was a relatively normal day. She testified that she had not seen the video. She agreed that the normal routine was to attend at the RCM to do a tour before the inmates were unlocked and do cell inspections around 10:00 a.m., but indicated that she would also attend the RCM at other times if asked to do so by staff or if there were issues that had to be addressed. She also agreed that she did not comply with and did not enforce the PPE and cell phone policies while in the RCM. - 14 - [29] During her examination-in-chief, Cucullo indicated that she was told by Morettin and Mangone at some point during the morning of February 4, 2021, that JSA had asked to leave the South Wing, that he had been disturbing the other inmates during the night and that he had been placed in the Remand interview room. She stated that she had asked them if there were any issues and was advised that JSA had just walked out and there no problems. During cross-examination, counsel put to her what Morettin and Mangone would say about informing her of the assault on JSA and about her telling them that ORs were not necessary. In response to such questions, Cucullo was emphatic that Morettin and Mangone at no time on February 4, 2021 told her about JSA being assaulted by an inmate and that she did not discuss with them the writing of a report and certainly did not direct them not to write an OR since they did not report that there was anything wrong. Cucullo indicated that a report of an inmate being assaulted would be a significant matter, would have led her to inform health care and senior management about the event and would have involved her preparing certain paperwork, all of which did not occur here because she was not told that JSA had been assaulted by an inmate. She also stated during cross-examination that receiving a report about an inmate being assaulted is not something that she would forget and not something that she would ever ignore. She maintained that the first she heard about an assault on JSA by an inmate was on February 18, 2021. Cucullo denied the suggestion that she was not telling the truth about these issues out of a concern that she would otherwise be disclosing that she had not performed her duties properly and would have left herself open to discipline. Although she agreed that she did not comply with and enforce the PPE and cell phone policies in the RCM, she strongly denied the suggestion that she was similarly lax in enforcing policies relating to inmate treatment and the filing of ORs. [30] The next time Morettin and Cucullo communicated about what had occurred with JSA on February 4, 2021, was when they exchanged text messages on February 18, 2021. The text messages were eventually produced while Cucullo was under cross-examination as a result of a question by Union counsel. The texts had not been produced earlier by the Employer because he had not been aware of them. Although the Union had some concerns about the way the texts were disclosed, there was no indication that they were not genuine. Morettin initiated the text exchange at 11:10 a.m. The relevant features of the text exchange are as follows: CM - Hey English just msg’d me about (JSA). What’s going on with that? Brad asked me the other night if he was beat up and I told him no. They bounced him. He caught a slap from (JW). Asked if he had any injuries or marks and I told him no. Guess Brad was saying that (JSA) keeps calling the cops and wants them charged… - 15 - AC - …Brad is looking at the cameras bc he called the cops. And it shows (JW) slapping him and some other inmate hitting him with a bottle or throwing a pop bottle at him. I didn’t see the video so I’m not sure what actually happened on the unit. Brad asked me if he was assaulted and I said that the day he got bounced I was told by staff he had to come off the unit bc he was yelling all night and disturbing the unit and all the inmates were mad and told him to go. As far as I know no one was assaulted. He sat in the MPR bc fox gave us issues that day about taking him back… CM - He was moved there on my days off. When I came back in he was on the unit. I was told by Chelsea he was up banging and screaming all night. When we unlocked that morning he was eating at the table. They talked to him and then he went to the top tier. We saw them toss fruit at him when he was up top. He came down and told us he had to go. Mangone opened the door. (JW) followed him in, was talking to him and then slapped him. We couldn’t get out the N1 because it was jammed. But when we did pull him out he said he was fine and wasn’t hurt. AC - Oh if you have to write a report then just put that down. The door being jammed is reasonable. CM - Yeah because even Zuke was held up at the Q2 with an inmate and Mangone radioed to him telling him the doors were jammed. AC - Yeah there have been issues with the doors over there. I guess they were just trying to figure out what actually happened and piece it all together. CM - Fair enough. I don’t mind writing that in a report if it helps them out. He never should have been put over there in the first place especially since he wasn’t on his meds. AC - Yeah if they ask for a report just put that down. I think they are going to pull the module camera to try to see what happened with (JW) and him in the sally port which would identify staff working that day. So it may or not come to writing a report. CM - Me, Mangone and Mike Brown we’re working that day if they need to know that. AC - I wouldn’t stress or worry. If they ask for a report then you put what happened that’s all you can do. CM - I’m not stressing. I’ll do what they ask of me. English has a way of trying to amp me up that’s why I asked you lol. - 16 - AC - Lol yeah feel free to come to me with whatever. I’ll be transparent and honest about it. CM - Thank you. I appreciate that and that’s why I do because I know you’ll tell me straight up. AC - Yeah I’ve got nothing to hide and I took this position so I can work with you guys and have your backs as much as you have mine. CM - You’ve been great with us and we trust you. Just like you know we all will stand behind you. AC - Well thank you. I think for the most part the majority of us have a very good working relationship and trust one another. Hopefully it sticks. CM - We all work well together and I can’t see anything changing. Obviously there will be people trying to cause a divide but we are all strong willed to not let that happen. AC - We have a good team and that’s all that matters. CM - Exactly… … [31] In relation to the last few text messages, I note that Mangone, Morettin and Cucullo were asked about how well they got along. Cucullo indicated that they were friends as of early February 2021, but that Mangone and Morettin were closer friends with her fiancée. They had been invited to her wedding, but they were not invited the second time once the wedding had been postponed. Given the circumstances of this case, she no longer talked to them after February 18, 2021. Morettin and Mangone indicated that they did not consider Cucullo a personal friend as of February 4, 2021, but that they functioned well as co- workers. They indicated in essence that they worked well as a team, that Cucullo let them run the unit and that they could go to her when they had issues that required the attention of a supervisor. [32] Morettin was asked a number of questions about his text messaging with Cucullo on February 18, 2021. He was asked by Union counsel if he agreed with Cucullo’s statement that as far as she knew, no one was assaulted. Consistent with his evidence, he said that he absolutely did not agree. When asked in effect why he did not challenge her statement by indicating that they had told her about the assault on JSA on more than one occasion. His response was that he was caught off guard and blindsided by the text messages. He indicated that as far as he was - 17 - concerned the JSA matter had concluded two weeks earlier and the fact that he did not address her statement was just an oversight. During cross-examination, he was asked again about why he did not take issue with Cucullo’s statement that she was not aware of an assault and why, in saying that he would write a report, did he not remind her that he and Mangone had asked her many times about writing an OR. He again mentioned that he had been blindsided and that he could not really say why he did not respond differently and that he understood how it looked. Morettin disagreed with the suggestion that it appeared from the text messages that he was relaying to Cucullo for the first time about what had occurred to JSA in the South Wing on February 4, 2021. [33] In their ORs prepared on February 18, 2021, Mangone and Morettin did not indicate that that they told Wright or Cucullo that JSA had been assaulted by an inmate. They also did not indicate that the reason that they did not prepare a timely OR was because Cucullo had told them that reports were not necessary. In her OR, also prepared on February 18, 2021, and after her text exchange with Morettin, Cucullo wrote about what staff told her about JSA wanting to leave the South Wing and did not indicate that she was told that JSA had been assaulted. She indicated that she did not refer in her OR to what Morettin had disclosed in his text messages because the OR concerned what had occurred on February 4, 2021. In her brief OR dated February 19, 2021, Wright indicated that she completed a suicide screening tool on JSA. She did not indicate that she had been advised by the COs that JSA had been assaulted. [34] It was during their March 8, 2021 allegation meetings that Mangone and Morettin advised the Employer that they had told Cucullo and Wright that JSA had been assaulted by an inmate on February 4, 2021, and that they did not prepare an OR because Cucullo had directed them not to do so. On the day following the allegation meetings, DS Lepore spoke briefly with Wright and Cucullo separately and made a handwritten note of what he had asked them and the response he had received. He also made a note of his conversation with them on their respective OR. He asked Wright if she was asked to assess any physical injuries to inmate (JSA) on February 4, 2021, and she replied “no”. He asked Cucullo if she was informed at any time on February 4, 2021, that the inmate was assaulted and she replied “no”. [35] I turn now to my conclusions about the evidence and whether the Employer has established a basis for disciplining Mangone and Morettin, beginning with their alleged contraventions of the PPE and cell phone policies. As noted previously, the facts on these issues are not in dispute. Mangone and Morettin did contravene the PPE policies on August 4, 2021, by not wearing the blue medical masks and eye protection at all times while in the RCM. Morettin also contravened the cell - 18 - phone policy on that day by taking his cell phone into the secure part of the institution and using it. The video relied on by Union counsel showed that virtually everyone who entered the RCM failed to comply with these policies, including Sergeant Cucullo. She not only failed to comply with these policies, but as a manager she failed to enforce the policies. There was clearly a general practice of not complying with the PPE and cell phone policies while employees were in the RCM. Apart from Mangone, Morettin and Brown, there is no indication that anyone else was disciplined for not complying with these policies on February 4, 2021. Although there is evidence that the Employer had disciplined employees for contravening these policies, there was no indication that an employee in the RCM had been disciplined for violating the policies. As argued by Union counsel, it is obvious in these circumstances that the Employer had condoned the behaviour that amounted to a breach of these policies. I have little difficulty in concluding that it would be unfair in these circumstances for Mangone and Morettin to be disciplined for their contravention of these policies. This conclusion however will have little impact on the final result in this case. It is the outcome of the more serious first and second allegations against Mangone and Morettin that will ultimately determine the fate of their grievances. [36] The Employer’s first ground for discharging Mangone and Morettin is that they failed to intervene to protect JSA from the harassment and physical assaults from inmates while JSA was in the South Wing on August 4, 2024. And related to this is its contention that they were negligent by not being sufficiently vigilant in performing their duty to care for JSA. Mangone and Morettin partly acknowledge that they should have intervened when they witnessed food being thrown at JSA. They also agree to a certain extent that they should have intervened sooner in the sally port incident. They deny observing any physical assault on JSA before he entered the sally port. The Employer had formed the view from the video evidence that Mangone and Morettin had observed much more than they were admitting to regarding what the inmates did to JSA while he was in the South Wing on February 4, 2021. [37] My conclusions about the conduct of Mangone and Morettin in relation to the first reason for discharging them are as follows. As noted previously, Mangone and Morettin were aware before unlocking took place that inmates were very upset with JSA and that in such a situation there was a potential for some risk to his health and safety. With this knowledge, it is reasonable to expect that they would be paying particular attention to the interactions between JSA, a man with mental health issues, and the other inmates housed in the South Wing. Soon after the inmates were unlocked and breakfast was provided, inmates can be seen on the video sitting together at a number of tables in the day area. JSA was sitting at a table by himself. It did not take very long before some inmates started to harass - 19 - JSA by yelling at him for disturbing their sleep during the night. This was not friendly banter between inmates. Even though the loud verbal harassment could escalate into something more serious, the COs in the RCM did not intervene. They did not, for example, direct the inmates who were engaging in the verbal harassment to leave JSA alone. I appreciate that this was not a focus of attention at the hearing. Nonetheless, it appears to me that COs acting in line with their duty of care for inmates would not have ignored the verbal harassment at that time. It should have at least caused them to pay closer attention to what was taking place between JSA and other inmates. [38] Soon after the verbal harassment commenced, inmate ZB threw a bottle in JSA’s direction which hit JSA’s metal tray, causing the tray and food to be knocked off the table and land on the concrete floor. I recognize that the COs in the RCM will not be in a position to see everything that takes place in the South and West Wings. In this instance, it is quite clear from the video and the oral evidence that the COs did not witness ZB throwing the bottle and it hitting JSA’s tray. They only heard the loud noise when the tray hit the floor and this caused their attention to be drawn to JSA. They did not know why JSA’s tray and food landed on the floor. There is no indication in the evidence that the COs even considered intervening when they observed JSA sitting at the table with his tray and food on the floor. Brown indicated that the COs were not concerned because they did not know what happened. In my view, they should have been concerned precisely because they did not know what had happened. They should have recognized that there was something not right with what they were observing and at least made the effort to ask JSA what had happened. It may well be that inmates do toss their tray around, but any thought in these circumstances that JSA had thrown his tray on the floor was not reasonable. This is at least another situation which should have led the COs to be more alert to what was taking place in the South Wing. [39] When JSA is standing by the table at about 8:17:58, inmate BW came from behind him and struck him once on the side of his face. When this occurred, Brown and Morettin were not in the RCM. I am satisfied from Morettin’s position at the meal hatch talking to an inmate that he would not have been able to see BW hit JSA. Mangone claims that he did not see JSA being hit because he was focusing his eyes at the time at Morettin, which was to the left of where JSA and BW were standing. It is difficult to conclude from the video and the other evidence that Mangone saw BW hit JSA. [40] Less than three minutes later, inmates are yelling at JSA and for about 30 seconds some of them are throwing food at him as he crouches down at the middle section of the upper tier. While Brown was still out of the RCM, Mangone and Morettin admit to seeing the last part of this incident. Although it is likely that they did not - 20 - see all of the food throwing incident, I agree with Employer counsel’s submissions that they saw more of the food throwing than they admitted to and that they appeared to be somewhat amused by what they were watching. This apparent amusement is consistent with their statements to the effect that they thought the food throwing was general horseplay and that the inmates were just blowing off steam. What they observed during this incident was JSA being verbally harassed and more than one inmate at least attempting to assault him by throwing food items at him. This was a serious matter that required Mangone and Morettin to do something to address what was happening to JSA. Contrary to Mangone’s perspective, there was malicious intent here and JSA was being threatened. The suggestion that JSA’s life was not in danger cannot be the test for determining whether some intervention on their part was warranted. Mangone and Morettin did not direct the inmates to stop the harassment and food throwing. They did not call for the assistance of another CO to attend so that they could enter the South Wing and deal with the situation, before the verbal and physical abuse against JSA escalated. Whatever options were available to them, simply watching and doing nothing was not an option consistent with their obligations as a CO to care for JSA and to control inmates. There is some merit to Employer counsel’s submission that some intervention by Mangone and Morettin with respect to the food throwing incident may have had the effect of preventing what occurred later. [41] The final incident while JSA was in the South Wing occurred when he came down the stairs from the upper tier with JW right behind him and he ended up near the cells at the left side of the day area. It is in that area at about 8:22:45, in a matter of a few seconds, that JSA was punched in the stomach by inmate ZB and inmate JW attempted to hit him at least twice. After this incident, JSA obviously has had enough abuse and headed directly to the intercom and asked to leave the South Wing. Since it appears that they saw JSA walking down the stairs and also saw him hurrying to the intercom, it is not particularly surprising that the Employer believed that the COs in the RCM witnessed JSA being physically attacked by ZB and JW. Mangone, Morettin and Brown testified that they did not witness this incident. After considering what is disclosed by the video and the relevant testimony, I am not prepared to conclude that Mangone and Morettin witnessed the few seconds of assaultive activity against JSA that took place just before he had asked to leave the South Wing. It is not possible to see where Morettin was looking at the time and Mangone’s view of the incident was more than likely impeded by Brown moving in front of him. While I appreciate that a different conclusion would have some significance for this case, I observe that the COs would not have had time to intervene in this incident even if they had witnessed it given that it was only seconds later that JSA had asked to leave the South Wing. - 21 - [42] The Employer’s view on what occurred in the sally port incident is that Mangone and Morettin did not act in a timely manner to protect JSA from being physically assaulted by inmate JW. I find that the Employer’s view is supported by the evidence. As JSA moved into the sally port and toward the N2 door, Morettin moved toward the N1 door and asked Mangone to open the door so he could exit the RCM and take JSA out of the sally port through the N2 door. The screen Mangone was operating froze with the result that the N1 door could not be opened electronically until the system reset. Inmate JW almost immediately followed JSA into the sally port and the N3 door remained open. The COs simply watch what is taking place in the sally port before the last punches were thrown by JW when Morettin started to yell at JW and bang on the glass. The N3 door was opened to let JSA into sally port, not JW. There was a risk with an open N3 door that other inmates might choose to enter the sally port and also engage with JSA. In the circumstances, the presence of JW in the sally port and the open N3 door were by themselves problems and a risk to JSA which should have resulted in the COs taking some timely action. Yelling at JW to leave the sally port and banging on the glass soon after he entered the sally port, before he got close to JSA, was an option that may have convinced JW to leave the sally port. Flicking the lights, calling for staff to assist or pushing the code blue button were other options that were available to the COs. Choosing one or more of these options may have convinced JW to leave the sally port before any blows were exchanged. Although uncomfortable with using manual keys, the fact that they did not even try to open at least the N1 door with a manual key was unreasonable in the circumstances given that the movement of a CO from the RCM and a CO’s presence outside the N2 door may have had some effect on JW. I recognize that a more timely response on their part may not have prevented JW from assaulting JSA. However, I have no doubt that simply watching for as long as they did was not appropriate in the circumstances and may have had the effect of encouraging JW to extend his stay in the sally port. [43] With the above considerations in mind, I am satisfied that Mangone and Morettin did not comply with their duty to care for JSA by not intervening to assist him during the morning on February 4, 2021. Although I have concluded that Mangone and Morettin did not observe an inmate assault JSA in the South Wing, they were aware of the verbal harassment against him and other matters, such as the food throwing incident, which should have caused them to intervene to protect JSA. I have also concluded that they should have intervened sooner during the sally port incident in order to care for JSA’s health and safety. I am also satisfied that they did not exercise an appropriate degree of vigilance in the circumstances. In this regard I note Morettin’s assertion that they were more focused on watching the South Wing after the food throwing incident. And yet, moments later, the COs apparently missed JSA being assaulted by ZB and JW. In my view, the fact that - 22 - they missed this incident demonstrates that they were not sufficiently focused on what was happening to JSA in the South Wing. [44] The final Employer allegation concerns whether Mangone and Morettin failed to comply with their reporting obligations. The Employer claims that they did not tell Cucullo on February 4, 2021, about the harassment and assault against JSA, that they did not file an OR and an Accident & Injury Report (“A & I Report”), with the result that they did not provide JSA with appropriate health care and the opportunity to file a complaint of assault. As I noted previously, the most important issues to decide with respect to this ground is whether Mangone and Morettin told Cucullo and Wright that JSA had been assaulted and whether Cucullo told them it was not necessary to file an OR. After assessing the conflicting evidence on these issues in light of what is most probable having regard to all of the evidence, I prefer the testimony of Cucullo and Wright and their versions of what occurred on February 4, 2021. [45] Union counsel argued that Wright was not a reliable witness because she did not recall a lot of what had occurred and what had been discussed regarding JSA. She was aware, of course, that she had performed a suicide screening tool for JSA. She did not assess JSA for physical injuries and she did not make a note about being advised that JSA had been assaulted by an inmate. She also did not arrange for a regular health care nurse to assess JSA for physical injuries. This is what Wright would have done as a professional if she had been told that JSA had been assaulted. She did not note in the OR she completed on February 19, 2021, that she was told by the COs in the RCM that JSA had been assaulted. When asked about the matter by DS Lepore on March 9, 2021, Wright had no difficulty in recalling that she had not been asked to assess JSA for physical injuries on February 4, 2021. Although Mangone and Morettin suggested otherwise when they testified, I find that Mangone had called for a MHN to assess JSA. They indicated that a call was made for a MHN in their ORs and during the allegation meetings. Brown confirmed in his testimony that they wanted to have JSA assessed by a MHN. Their focus when they called for a nurse was on the state of JSA’s mental health, and not on whether he had any physical injuries since they believed that he did not have any physical injuries. Their insistence that Mangone did not call for a MHN was an attempt to support their position that they had told Wright and Cucullo that JSA had been assaulted by an inmate. Although her recall of the discussions she had about JSA on February 4, 2021 was not the best when she testified, I am satisfied that Wright was not told by Mangone and Morettin that JSA had been physically assaulted. I am also satisfied that if they had told her that JSA had been assaulted by an inmate, Wright would likely have recalled such a significant matter and would have had JSA assessed by a regular health care nurse. - 23 - [46] Union counsel argued that not only was Cucullo’s testimony unreliable, but that it was also not credible. Similar to Wright’s testimony, Cucullo could not recall a lot of the specific details about her discussions with Mangone and Morettin because for her it was a normal day. Even when confronted with a rigorous cross- examination, she insisted that Mangone and Morettin did not tell her that JSA had been physically assaulted by an inmate on February 4, 2021, and that she did not discuss with them the writing of an OR. In making my findings on credibility, I took into account that Cucullo had an interest in not telling the truth because she could have been subject to discipline for not doing her job properly if the events occurred as described by Mangone and Morettin. The fact that Cucullo attended at the RCM during the morning of February 4, 2021 four times rather than her normal two appearances at about 7:30 a.m. and 10:00 a.m. does little to assist the Union’s position. She attended more often simply because JSA was placed in the Remand interview room and she had a responsibility to ensure that he was placed in a proper unit, not because she was told that JSA had been assaulted. The fact that Cucullo did not enforce the PPE and cell phone policies in the RCM does not lead me to conclude that she would also be negligent when dealing with other policies, including the Employer’s reporting policies. In my view, it would be quite a stretch to conclude that enforcing the PPE and cell policies in the RCM has any similarity to complying with and enforcing the more significant policies relating to report writing and the handing of an inmate-on-inmate assault. While admitting to not enforcing the PPE and cell phone policies in the RCM, Cucullo was very credible when she emphatically denied that she would never ignore a report of an inmate- on-inmate assault and would not forget that such a report had been made. [47] During cross-examination, counsel asked Mangone and Morettin how they could recall in great detail their discussions with Wright and the many discussions with Cucullo that had occurred a long time ago, but not recall equally as well other matters that took place on February 4, 2021. They responded essentially by indicating that their recall of these discussions was very good because they had been focused on them for a long time. While I accept to some extent that they would focus on those conversations, they testified so similarly about the important details of what they claimed was discussed with Wright and Cucullo, I was left with the impression that their testimony about these conversations had been well rehearsed. Their versions of the discussions with Cucullo was that they told her what had occurred with JSA in the sally port in detail more than once, including specifically that he had been assaulted by an inmate, and that they knew that these were circumstances in which they were required to prepare an OR, but that Cucullo told them that reports were not necessary because JSA had not been injured and that she directed them not to prepare an OR and they complied with this direction because they did not want to be insubordinate. In light of all the evidence, their versions of what they discussed with Wright and Cucullo in - 24 - particular are highly improbable. The requirement to file an OR is not dependent on whether JSA had been injured and I do not accept that Cucullo told them reports were not necessary because JSA had not sustained any injuries, particularly since Wright made no assessment about whether JSA had any physical injuries. I also find it difficult to accept in these circumstances that Cucullo would instruct them not to file an OR and that they would not comply with this important obligation because they did not want to be insubordinate. [48] The one piece of evidence that was particularly relevant in resolving the credibility issues was the exchange of text messages on February 18, 2021, between Morettin and Cucullo, which dealt primarily with what had occurred with JSA on February 4, 2021. Morettin initiated the exchange after he had been asked by another Sergeant (“Brad”) if JSA had been “beat up”. As an aside, I note that in his first text message Morettin indicated to Cucullo that he had told Brad that JSA had not been beaten up. In my view, the video discloses that this is far from an accurate assessment of what happened to JSA in the sally port. In any event, Cucullo essentially advised him that she understood an investigation was being initiated and that Brad had asked her if JSA had been assaulted and she indicated what she was told by staff that day, which is entirely consistent with her testimony in this proceeding. She then indicated to Morettin that, “As far as I know no one was assaulted.” Without disputing this specific statement, Morettin proceeds to provide Cucullo with some details of what had occurred that morning, including the trouble with the doors being jammed. This text exchange serves to support Cucullo’s version of what occurred on February 4, 2021, and does not support the versions provided by Mangone and Morettin. It confirms that Cucullo had not been told by the staff in the Remand unit that JSA had been assaulted. The absence of any response from Morettin to a statement which he and Mangone claim is absolutely false is telling. It is clear that he could not provide a satisfactory explanation for being silent when Cucullo advised him that she was unaware of anyone being assaulted. In my view, Morettin was silent because he knew that Cucullo was unaware of anyone being assaulted. I am also satisfied that the text messages illustrate that Morettin was advising Cucullo about some significant details of what had occurred to JSA on February 4, 2021, for the first time on February 18, 2021. For example, it is quite obvious that Cucullo was learning for the first time that there had been a problem with opening certain doors. The substance of the text messages also tends to confirm Cucullo’s evidence that she did not discuss the filing of ORs with Mangone and Morettin on February 4, 2021, because she had not been advised about any problems. The comments Morettin makes about writing a report in the texts suggests that this was the first time he was discussing the writing of a report for the JSA incident. He certainly did not remind Cucullo in the text exchange that he did not file an OR at the time because she had directed him not to do so. - 25 - [49] In their ORs, Mangone and Morettin do not mention that they had advised Wright and Cucullo that JSA had been physically assaulted. What they wrote about the nurse issue is that they wanted a MHN to assess JSA’s mental health. They did not indicate that they wanted JSA assessed for any physical injuries. Since they were aware that they should have written an OR on February 4, 2021, and were writing their OR much later, I would have thought that they might have explained why they did not comply with policy and write a timely report. However, they did not take advantage of this opportunity. They certainly did not disclose in their OR that they were directed by Cucullo on February 4, 2021, not to file an OR. It was only when the Employer’s investigation had advanced to the more serious allegation meeting stage that Mangone and Morettin informed the Employer that they had told Wright and Cucullo about JSA being physically assaulted and that Cucullo had directed them not to file an OR. [50] Therefore, in addition to finding that the Employer has established its first reason for disciplining Mangone and Morettin, I find that it has also established its second ground for imposing discipline. I find that Mangone and Morettin did not advise Cucullo and Wright on February 4, 2021, that JSA had been physically assaulted and that Cucullo did not direct them not to file an OR. Their failure to file an OR on February 4, 2021, was contrary to Employer policy. On the issue of their obligations with respect to filing an A & I Report, I agree with the Union that it is not the practice at the ARTC for a CO to initiate an A & I Report and that Mangone and Morettin cannot be faulted for failing to do so. I do point out however that it was because of their failure to report the physical assault on JSA that a nurse did not assess JSA for injuries and initiate the preparation of an A & I Report. As well, their failure to report the assault meant that JSA had not been provided with the timely opportunity to file a complaint of assault against the inmates who had assaulted him. [51] Having determined that the Employer had just cause to discipline Mangone and Morettin, I turn to address whether the substitution of a lesser penalty is warranted in this case. Union counsel made a considerable effort to convince me that the presence of certain mitigating factors should cause me to exercise my discretion in favour of reinstating Mangone and Morettin to employment at the ARTC. After considering the relevant factors, I find that the reinstatement of Mangone and Morettin is not warranted given all of the circumstances of this case. [52] In my view, the offences committed by Mangone and Morettin are serious and generally warrant significant discipline. The cases I was referred to illustrate that inmates are almost entirely reliant on COs to protect them from harm and that two of the most important duties that COs have is to not harm inmates and to protect them from harm. In this instance, Mangone and Morettin failed in their duty to care - 26 - for the health and safety of JSA by failing to intervene when he was being harassed by many inmates and physically abused, as evidenced by the food throwing incident and what took place in the sally port. COs are obliged to report anything out the ordinary to their supervisor and to file on OR in such instances. The failure of Mangone and Morettin to report to healthcare and particularly to Cucullo that JSA had been physically assaulted in the sally port and to file an OR represents a serious dereliction of duty on their part. Not only did they fail in their duty to report that JSA had been assaulted, they falsely advised the Employer that they did tell Wright and Cucullo that JSA had been assaulted. They then went further and falsely claimed that they did not file an OR because Cucullo had directed them not to file one, thereby in effect suggesting that it was their supervisor who was negligent in carrying out her responsibilities regarding JSA on February 4, 2021. [53] There are some factors present in this case which would typically favour the substitution of a lesser penalty. Mangone and Morettin each have a discipline free record. They do have some seniority, but they do not have the length of service that would justify the modification of the penalty in these circumstances. Mangone and Morettin did take some responsibility for their conduct and expressed some remorse. However, in my view, taking responsibility and expressing remorse for misconduct that was obvious from an examination of the video and was a clear violation of policy, such as the violations the PPE and cell phone policies, is not a significant factor in their favour. Similarly, their admission to an obvious violation of the report writing policy is of little help to their cause, particularly when they falsely claimed that their supervisor had instructed them not to file an OR. [54] In addition to what I would describe as the usual factors that are considered when determining whether it is appropriate to modify a penalty, Union counsel argued that the Employer engaged in unjustified differential treatment when, for the same offences, it discharged Mangone and Morettin and only suspended Brown for 20 days. Counsel submitted that the circumstances here warranted a proportional response from the Employer, not the termination of Mangone’s and Morettin’s employment. Employer counsel responded in reply to this submission by noting that Superintendent Leblanc was not asked why the Employer had decided to discharge Mangone and Morettin and to suspend Brown for only 20 days and that she therefore did not have the opportunity to provide an explanation for the different treatment. Since no objection was made to the Union pursuing this argument, I will deal with it based on the relevant evidence that was before me on this issue and the submissions of counsel. [55] As a general proposition, employees who engage in the same misconduct should be treated in a similar fashion. As a fixed term employee CO, Brown has the same - 27 - duties and obligations as a permanent employee CO. The Employer clearly viewed Brown’s conduct as very serious given that a 20 day suspension was the severest penalty it could give him short of terminating his employment. As indicated previously, Brown did testify about his role in the RCM on February 4, 2021. He indicated that he was there as a helper and that it was Mangone and Morettin that “steered the ship”. This characterization of his role was evident in many aspects of the evidence. There is no indication that he made any decisions or had any input into what should or could be done to protect JSA. Those decisions were made by Mangone and Morettin. Brown was not in the RCM to witness the food throwing incident, but it is unlikely that he would have had any input into whether the COs should have intervened to protect JSA. Brown was simply watching during the sally port incident. He had no input into whether they should get a key to open the N1 door. Decisions about whether staff should be called to assist or a code blue initiated were not his decisions to make, because his role was only to assist in carrying out the decisions that were made by Mangone and Morettin. The deference he gave to Mangone and Morettin is even more evident when discussions took place in the RCM with Wright and Cucullo on February 4, 2021. Brown did not participate in these discussions. When Mangone and Brown were asked where Brown was or whether he said anything when some of these important discussions took place, their invariable answer was that they were not sure if Brown was present and they could not recall if he had said anything. As noted previously, Brown testified that he did not participate in these discussions and that he did not know what was being discussed because he was on his cell phone dealing with personal issues. What is significant is that Brown did not falsely claim that he had told Wright and Cucullo that JSA had been assaulted by an inmate and he did not falsely assert that Cucullo directed him not to file an OR because it was unnecessary since JSA had not been injured. These circumstances illustrate that the culpability of Brown’s conduct was considerably less that Mangone’s and Morettin’s. In my view, the Union did not satisfy its onus to demonstrate that the different disciplinary treatment Mangone and Morettin received was unjustified. The evidence supports the conclusion the Brown was likely treated differently because his culpable conduct was not on the same level as was the conduct of Mangone and Morettin. [56] As their termination letters and Superintendent Leblanc’s testimony disclosed, the Employer determined that it could no longer trust Mangone and Morettin to perform their duties as a CO and it concluded that the employment relationship was damaged beyond repair. What was particularly problematic for the Employer was the false statements they made for the purpose of shifting some of the blame from them to Wright and Cucullo. As I have found, Mangone and Morettin continued to make these false statements when they testified. In weighing all of the relevant factors to determine whether the substitution of a lesser penalty was - 28 - warranted in this case, the fact that Mangone and Morettin were not truthful during their testimony was one of the factors that weighed against the reinstatement of their employment at the ARTC. [57] For the foregoing reasons, Mangone’s and Morettin’s grievances dated April 26, 2021, are hereby dismissed. Dated at Toronto, Ontario this 3rd day of September 2024. “Ken Petryshen” Ken Petryshen, Arbitrator