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HomeMy WebLinkAbout2010-2409.Burke.13-09-13 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-2409 UNION#2011-0616-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Burke) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Amanda Montague-Reinholdt Raven, Cameron, Ballantyne & Yazbeck LLPS Counsel FOR THE EMPLOYER Caroline Cohen Ministry of Government Services Legal Services Branch Counsel HEARING SUBMISSIONS November 28 & 29, December 1 & 2, 2011, February 27, May 28, June 11, July 4, August 22, 2012, March 7, April 23, 2013 May 1, 2013 - 2 - Decision [1] In a grievance dated January 4, 2011, Mr. M. Burke claims that the Employer contravened the Collective Agreement when it terminated his employment without just cause. Mr. Burke was employed as a Correctional Officer (“CO”) at the North Bay Jail (“the NB Jail”). He started his career as a CO in 1998 and moved to the NB Jail in 2000. His employment was terminated by letter dated January 4, 2011, authored by Mr. D. Stevens, Superintendent. [2] As set out at some length in the termination letter, the Employer relied on a number of grounds for discharging Mr. Burke. However, it relied on two key reasons. The primary reason is that Mr. Burke played a role on July 4, 2009, in orchestrating an assault by one inmate on another inmate. The other key reason is that Mr. Burke withheld relevant information about the July 4, 2009 incident during his interview with a Correctional Investigation and Security Unit (“CISU”) investigator. These reasons are reflected in the following paragraphs of the termination letter: … Notwithstanding your account of and your information provided regarding the event, the facts show that you entered into an orchestrated plan to engage the services of one inmate to purposely bring harm and humiliation to another inmate housed in the facility. Moreover, once the second inmate had been assaulted, your silence solidified your involvement in a cover up and impeded the investigation into the event. Your grossly inappropriate, manipulative, deceitful and cruel behaviour not only brings into question your professionalism but you completely failed in meeting the basic standards expected of Ministry employees as outlined in the Statement of Ethical Principles, as well as showing a blatant disregard to the goal of the Ministry, which is to provide incarcerated offenders a safe and secure environment. Therefore, based on the seriousness of these substantiated allegations, the irreparable breach of trust, and taking into consideration your employment history - 3 - and length of service, it is my decision to dismiss you for cause from employment with the Ontario Public Service, pursuant to Section 34 of the Public Service of Ontario Act, effective the date of this letter. You have the right to grieve your dismissal. … [3] This matter required a number of hearing days spread over three calendar years. Ms. A. Dewar represented the Union during the evidentiary phase and when illness prevented her from continuing, Ms. A. Montague-Reinholdt stepped in and made the final argument. The Employer called the following witnesses: Mr. J. Ricard; Mr. T. Bowerman; inmate Santerre; Ms. S. Couchie; Mr. G. Gagnon, a Registered Nurse; Mr. B. Graham, Inspector, CISU; and, Mr. Stevens. The Union called Mr. Burke to testify. In determining the facts, I reviewed and considered the testimony of these witnesses and the documentary evidence, in light of the submissions relating thereto. [4] As will become evident, the result in this case will be determined on the facts rather than disputed legal principles. The Union takes the position that Mr. Burke did not play a role in getting an inmate to assault another inmate. It does acknowledge that Mr. Burke is deserving of some discipline for withholding information from the CISU investigator, but suggests that this conduct did not warrant the termination of his employment. The Union did not take the position that the grievance should be allowed and Mr. Burke reinstated to employment if it was found that he did play a role in orchestrating an assault on an inmate. [5] Many of the facts are not in dispute. During the early morning hours of July 4, 2009, CO J. Lamothe called the NB Jail and advised night shift Operational Manager (“OM”) C. Vincent that he was reporting sick for the day shift. He told OM Vincent that his - 4 - step-daughter had been sexually assaulted, that a male suspect had been arrested by the North Bay Police Service and that the suspect would likely be admitted to the NB Jail. A nineteen year old male was charged with domestic assault, sexual assault and break and enter in connection with an incident that involved CO Lamothe’s fourteen year old step-daughter. For the purposes of this decision I will refer to this individual as Mr. X or inmate X. At the morning muster for the day shift on July 4, 2009, the staff was advised of the anticipated admission of the person charged with the sexual assault of CO Lamothe’s step-daughter and that this individual would be placed in segregation. COs Burke, Couchie and Bowerman attended muster that morning. [6] Mr. X was admitted to the NB Jail on a remand warrant at approximately 11:00 a.m. After going through the admitting process at A & D and after meeting with the Registered Nurse and the day shift OM T. Loeffen, Mr. X was placed in cellblock #1. This cellblock housed nineteen Protective Custody (“PC”) inmates. CO Bowerman was working the cellblock #1 post at the time and he was in charge of the keys. The placement of inmate X in cellblock #1 was a serious contravention of policy. The relevant policy dictates that an inmate with a sexual assault charge that involves a close family member of an employee should either not be admitted to the institution where the employee works or, if admitted, the inmate should at least be housed in segregation. The placement of such an inmate in a segregation cell minimizes the risk of retribution for the alleged acts against the family member of an employee. The placement of inmate X in cellblock #1, even though it housed only PC inmates, created security risks for this inmate. [7] Not long after 12:00 p.m., inmate Santerre was escorted from cellblock #1 by COs Couchie and Bowerman to the 1st Main desk. 1st Main was CO Burke’s post that day shift. - 5 - Inmate Santerre is a physical presence and COs Couchie and Burke were familiar with him because he was not a first time customer. Inmate Santerre was at the 1st Main desk for no more than two minutes. This was long enough for him to be told that inmate X had been charged with the sexual assault of a fourteen year old girl. It is a clear breach of policy for a CO to tell an inmate about the charges of another inmate. In this context, given the culture and code within a correctional facility, inmate Santerre received the clear message that he was to take care of inmate X, which he proceeded to do in short order. COs Bowerman and Couchie returned inmate Santerre to cellblock #1. Within a matter of minutes, inmate Santerre confronted inmate X and then proceeded to physically assault him. Pictures taken of inmate X immediately after the incident shows that he was seriously injured and bleeding. CO Bowerman initiated an all staff emergency alarm. Inmate X was removed from cellblock #1 and was eventually placed in a segregation cell. [8] Inmate X’s mother, who works in Correctional Services, made a complaint about the beating her son received at the NB Jail. Inspector Graham was assigned to investigate the incident on July 8, 2009. He interviewed a number of individuals and then prepared a detailed Investigation Report containing his conclusions. Superintendent Stevens reviewed the Investigation Report, held allegation meetings and then disciplinary meetings. As the disciplinary response indicates, the assault of inmate X was considered to be a very serious matter by the Ministry and Superintendent Stevens. Mr. Burke was not the only one disciplined. On the management side, Acting Superintendent Lamoureux, who was in charge of the NB Jail in the absence of Superintendent Stevens, was discharged, OM Vincent was suspended for ten days and OMs Loeffen and Gauthier were each suspended for five days. Of the bargaining unit employees, COs Couchie and Bowerman were also discharged. Ms. Couchie did not file a - 6 - grievance challenging the termination of her employment. The settlement of CO Bowerman’s grievance resulted in his return to employment at the NB Jail. When the hearing commenced in this proceeding, the disciplinary dust had settled for employees in the bargaining unit, with the exception of Mr. Burke and his outstanding grievance. It is in this context that I heard the testimony of the witnesses referred to in paragraph 3 of this decision. [9] As noted previously, the primary factual dispute is over whether CO Burke was involved in orchestrating the assault on inmate X by inmate Santerre. More particularly, the issue to be determined is whether or not CO Burke was at the 1st Main desk participating in the discussion when inmate Santerre was told that inmate X had been charged with the sexual assault of a fourteen year old girl. CO Burke denies he was at the 1st Main desk when that discussion occurred. Three witnesses testified otherwise. [10] CO Couchie was assigned to the 2nd Main post on the day shift on July 4, 2009. Her testimony on the key issue in dispute can be summarized as follows. Sometime after inmate X was placed in cellblock #1, she was in the 1st Main area when CO Burke asked her to assist him by bringing inmate Santerre to 1st Main. She complied with his request by going into cellblock #1 and, with the assistance of CO Bowerman, they brought inmate Santerre to the 1st Main desk where CO Burke was located. CO Burke asked inmate Santerre how the new guy was doing. After inmate Santerre responded that he was fine, CO Burke asked him if inmate X had indicated why he was in there. Inmate Santerre replied that he said he was in there for tuning up his old lady. CO Couchie then asked him if inmate X told him that the girl was fourteen years old. The discussion lasted no longer than two or three minutes. COs Couchie and Bowerman then returned inmate Santerre to cellblock #1. When Employer counsel put to Ms. Couchie that Mr. - 7 - Burke says that he was not part of the conversation, Ms. Couchie indicated that his statement to that effect was false. [11] CO Bowerman indicated in his testimony that CO Couchie came into cellblock #1 and requested to speak to inmate Santerre. He got inmate Santerre and he and CO Couchie left the cellblock heading down a hallway leading to the 1st Main desk. CO Bowerman indicated that he stayed back near the interview rooms as CO Couchie led inmate Santerre to the 1st Main desk where they met CO Burke. CO Bowerman testified that he was not really in earshot so he heard very little of the discussion. He indicated that he observed COs Couchie and Burke and inmate Santerre speaking to each other for a couple of minutes. He could only recall hearing either CO Couchie or CO Burke tell inmate Santerre that “He is our good friend”. He stated that CO Couchie assisted him in returning inmate Santerre to cellblock #1. CO Bowerman testified that after the assault on inmate X by inmate Santerre, he put two-and-two together and realized what the conversation between COs Couchie and Burke and inmate Santerre was all about and he assumed the comment he heard about a very good friend was a reference to CO Lamothe. [12] I received inmate Santerre’s testimony within the confines of a federal correctional facility. He was a resident of Fenbrook Institution in Gravenhurst at the time. Inmate Santerre’s memory of the incident was not strong on details. He did recall that he was taken from the range to speak to two COs. From pictures depicting faces of COs, he identified the individuals who he spoke to at the 1st Main desk as COs Couchie and Burke. He also identified the male as big, with a tattoo of a screw on his forearm. This description fits Mr. Burke. He indicated that the message the COs gave him was that they wanted inmate X dealt with for beating up the fourteen year old daughter of a friend. He stated that he was told that there would be consequences if he - 8 - did not deal with inmate X and that there would be “something good for him” if he complied with their request. Inmate Santerre stated that he was then returned to cellblock #1 where almost immediately thereafter he confronted and assaulted inmate X. He indicated that he should not have assaulted him and all he received for his efforts was an additional charge. [13] Mr. Burke worked the entire day shift on July 4, 2009, at the 1st Main post. While working this post he is normally stationed at the 1st Main desk, but he does move to other areas given his responsibilities. These responsibilities include the supervision of inmates housed in ranges 7 & 8, which on July 4 held twelve intermittent inmates. CO Burke was at his post when Mr. X was admitted to the NB Jail and he was aware that he was placed in cellblock #1. His testimony about his actions during the relevant time period can be summarized as follows. After completing his lunch duties in connection with range 7 & 8, he returned to the 1st Main desk and had a brief discussion with COs Couchie and A. Shank about how difficult the situation was for CO Lamothe and his family. After CO Shank left the area with the Registered Nurse, CO Burke told CO Couchie that he was going to give out cleaning supplies on range 7. He had a request for these items from an inmate when he was completing his lunch duties. He writes “area toured” in the 1st Main Log and then proceeds to range 7 where he gets the cleaning supplies, leaves them for the inmates and turns on the shower. As he supervised the inmates while they cleaned, he heard a call on the radio from CO Couchie to cellblock #1. He believed he heard her say that she wanted inmate Santerre to 1st Main. He put the cleaning supplies away after the cleaning was completed and proceeded to the staff room on 1st Main. He estimates that it took approximately five minutes from the time he wrote “area toured” in the Log at 12:20 to the time he put the cleaning supplies away. As he exited ranges 7 & 8 to go to the staff room, he observed inmate Santerre and COs Couchie and Bowerman engaged in a conversation at the 1st - 9 - Main desk. He went into the staff room and after a few minutes he heard the call for assistance to the 1st cellblock. This prompted him to return to his post. He then observed inmate X being escorted from cellblock #1, placed in an interview room, treated by the Registered Nurse and then eventually taken to segregation on the 2nd floor. He logged inmate X going to interview room at 12:45 and to the 2nd floor at 13:05. He next saw CO Couchie in the staff room between 2:30 and 3:00 p.m. when no one else was in the room. CO Couchie told him that they saw him and know that he saw them and then asked what he was going to do about it. With the belief that she was asking if he intended to tell management about what he saw, he told her that he did not want to talk about it. CO Couchie did not pursue the matter further. [14] CO Burke did not mention seeing inmate Santerre and COs Couchie and Bowerman at the 1st Main desk to anyone, including Inspector Graham when he was interviewed on April 22, 2010, as part of the CISU investigation. His reason for doing so is that he did not want to be labeled a rat and ostracized by coworkers. Mr. Burke testified that he called in May of 2010 and left a message for Inspector Graham to return his call because he wanted the opportunity to speak to him again. He testified that he felt guilty about withholding information and felt the need to come forward. He indicated that he did not receive a return call. Inspector Graham testified that did not recall getting a message from CO Burke. After waiting two weeks for Inspector Graham to call him, he prepared a written statement in which he provides a more fulsome version of what occurred on July 4, 2009. This statement essentially mirrors his oral testimony. He testified that he gave this written statement to Mr. Pitfield, Union representative, in November of 2010 and that he did not know what happened to it after that. The letter was provided to the Employer at CO Burke’s discipline meeting. - 10 - [15] Mr. J. Ricard was a CO at the NB Jail in July of 2009. He left in December of 2009 to join the OPP. Although he did not observe what took place at the 1st Main desk around the noon hour on July 4, 2009, he advised Superintendent Stevens in November of 2010 about a discussion he had had with CO Burke soon after the incident with inmate X. Mr. Ricard indicated that CO Burke told him that he and CO Couchie spoke to an inmate, informed him of why the new inmate was in the NB Jail, returned the inmate into cellblock #1 and it was shortly after their meeting with the inmate that the assault took place on the new inmate. In response to the Superintendent’s request, Mr. Ricard set out what CO Burke told him in an email dated November 12, 2010. Mr. Burke denied that he made such a statement to Mr. Ricard. He testified that Mr. Ricard asked him who he believed assaulted inmate X and Mr. Burke told him simply that he believed it was inmate Santerre. [16] I do not intend to review in detail the final submissions of counsel. Given that the dispute is over the facts, each counsel reviewed the evidence in considerable detail in an effort to support their client’s position as to whether Mr. Burke was involved in getting inmate Santerre to assault inmate X. As one would expect, Employer counsel submitted that the testimony of the key Employer witnesses was credible and reliable on the key factual issue before me. She forcefully argued that the direct evidence establishes on a balance of probabilities that Mr. Burke was involved in the plot to assault inmate X. In her submission, this conclusion alone would warrant the dismissal of Mr. Burke’s grievance. In support of her submissions, Employer counsel relied on the following decisions: OPSEU v. Ontario (Ministry of Public Safety and Security), [2002] O.G.S.B.A. No. 58 (Herlich); Re Doughty Concrete Products Ltd. and C.E.P., Loc. 294(B) (1996), 59 L.A.C. (4th) 289 (Hunter); OPSEU v. Ontario (Ministry of Community Safety and Correctional Services), [2008] O.G.S.B.A. No. 143 (Petryshen); Re DeHavilland Inc. - 11 - and National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 112 (1999), 83 L.A.C. (4th) 157 (Rayner); OPSEU v. Ontario (Ministry of Community Safety and Correctional Services, [2008] O.G.S.B.A. No. 84 (Abramsky); OPSEU v. Ontario (Ministry of Community Safety and Correctional Services, [2007] O.G.S.B.A. No. 96 (Harris); Re Government of Province of British Columbia and British Columbia Government Employees Union (Correctional Services Component) (1987), 27 L.A.C. (3rd) 311 (Hope); OPSEU v. Ontario (Ministry of Community Safety and Correctional Services, [2011] O.G.S.B.A. No. 18 (Herlich); and, OLBEU v. Ontario (Liquor Control Board), [2000] O.G.S.B.A. No. 84 (Abramsky). [17] Union counsel submitted that the testimony of COs Couchie and Bowerman, and former CO Ricard and inmate Santerre was not credible or reliable and that Mr. Burke’s testimony should be preferred. In referring to certain features of the evidence and the Investigation Report relating to CO Couchie in particular, counsel argued that CO Couchie was the employee involved in engineering the assault on inmate X, not CO Burke. Counsel also submitted that COs Couchie and Bowerman placed CO Burke at the 1st Main desk when inmate Santerre was brought there only to deflect and minimize their own role in the incident. In support of her submissions, Union counsel relied on some of the principles contained in the above decisions. [18] After conducting a very thorough and broad investigation, Inspector Graham concluded that there was a common scheme to get inmate X that involved the Senior Administrator, Operational Managers and COs at the NB Jail. He also found the code of - 12 - silence was in operation at the NB Jail in connection with the inmate X incident as reflected in the failure to complete Logs and reports and the failure of employees to disclose relevant information to him during interviews. Although the inquiry before me was narrower, given that it was essentially limited to determining if CO Burke participated in the scheme to get inmate X, there was nonetheless some evidence in this proceeding which supports the general conclusions of Inspector Graham. The evidence illustrates that the code of silence, referring to the reluctance on the part of correctional staff to disclose the misconduct of fellow employees, is alive and well at the NB Jail. This reality can pose challenges when it comes to assessing the credibility and reliability of the testimony of witnesses. I took this reality into account when assessing the credibility and reliability of the key witnesses in this case. I also utilized the usual criteria to assess their credibility and reliability in order to determine what is most probable in the context of all of the direct evidence. Based on this approach in analyzing the evidence, it is my conclusion that COs Couchie and Bowerman and inmate Santerre testified truthfully about the central factual issue in dispute and that CO Burke’s denial of participating in the discussion with inmate Santerre at the 1st Main desk is not believable. There is no basis in the evidence to conclude that these three Employer witnesses would give false testimony about CO Burke’s role in the scheme to get inmate X. Given that Mr. Ricard was not present at the NB Jail on July 4, 2009, I found it unnecessary in the circumstances to give any weight to his testimony. [19] As I noted previously, there are some reliability issues with inmate Santerre’s testimony, given his inability to recall some of the details about the inmate X incident. I recognize that he referred to speaking to only a female CO at the 1st Main desk in his interview with Inspector Graham on August 13, 2009. However, in his testimony, he clearly identified COs Couchie and Burke as participants in the discussion about inmate X at the 1st Main desk. - 13 - There is no indication in the evidence that inmate Santerre had a reason to falsely implicate CO Burke in the incident. I found that inmate Santerre’s testimony on the key question in this case had a ring of truth to it. [20] I accept that CO Couchie was quite upset about the alleged events that brought inmate X to the NB Jail. She expressed her feelings about them at the day shift muster on July 4, 2009. She did call and speak to CO Lamothe shortly after muster. She denied that she told him “Don’t worry Jeff, we’re going to get him”. There is no direct evidence to contradict her on this point. Ms. Couchie also denied a number of features of Mr. Burke’s testimony. She denied that he told her that he was going to ranges 7 & 8 to hand out cleaning supplies. She also denied telling CO Burke that they knew he saw them and asking him what he was going to do about it in the staff room between 2:30 and 3:00 p.m. on July 4, 2009. During her interview with Inspector Graham, CO Couchie admitted to her involvement in removing inmate Santerre from cellblock #1 and to telling him that inmate X’s victim was fourteen years old. CO Couchie recognized that these admissions placed her employment in serious jeopardy. Falsely implicating CO Burke as a participant in the discussion with inmate Santerre would not assist her in escaping responsibility for her conduct. She consistently maintained that CO Burke participated in the discussion with inmate Santerre at the 1st Main desk at her allegation meeting and in her testimony at the hearing. It is unlikely that she would falsely implicate CO Burke before the termination of her employment and risk reprisals for breaching the code of silence. Having been discharged and not having grieved her discharge, Ms. Couchie had no reason to falsely implicate CO Burke in this proceeding. In my view, the evidence supports the conclusion that Ms. Couchie was simply setting out what happened on July 4, 2009, when she described CO Burke’s presence at the 1st Main desk when the discussion with inmate Santerre occurred. - 14 - [21] CO Bowerman started at the NB Jail as an unclassified CO in June of 2008. On July 4, 2009, he did not record in his Log Book that inmate Santerre left and then returned to cellblock #1. During his interviews with Inspector Graham on August 27 and on again March 19, 2010, CO Bowerman denied that inmate Santerre was moved from cellblock #1 to the 1st Main desk. He did not change his story until November of 2010, just before his allegation meeting. He indicated that he believed at that time that it was in his interest to come forward with the truth. He then gave a description of what had occurred on July 4, 2009, that was consistent with his testimony at the hearing. He indicated that CO Couchie came to get inmate Santerre from cellblock #1 and that CO Burke was present when inmate Santerre and CO Couchie arrived at the 1st Main desk. In my view, CO Bowerman did not have any reason to falsely implicate CO Burke. If CO Couchie had met with inmate Santerre alone, or with CO Bowerman present, there would be no reason for CO Bowerman to identify CO Burke as a participant. After keeping silent for so long in order to avoid implicating anyone, including himself, it is quite improbable that CO Bowerman would feel compelled to implicate CO Burke if he did not participate in the incident involving inmate X. [22] Of all of the witnesses in this proceeding, Mr. Burke has the most to lose by a finding that he participated in the scheme to get inmate X. There is a complete absence of any evidence to corroborate his version of what occurred on July 4, 2009. He did not record in his Log Book that he handed out cleaning supplies to the inmates in ranges 7 & 8. I could not help but get the sense from his testimony that he was creating a version of the events that would distance himself from the 1st Main desk and at the same time create a basis for concluding that CO Couchie was the CO involved in orchestrating the assault on inmate X. An example of this in his testimony is when he stated that he heard CO Couchie use the radio to request that inmate Santerre be brought - 15 - to 1st Main. No one else testified that there was such a call and it is extremely unlikely in the circumstances that CO Couchie would make such a request over the radio. Other examples are when he claims he told CO Couchie that he was going to hand out cleaning supplies and when he claims she confronted him in the staff room to effectively ask him if he was going to tell management what he observed. I found these aspects of his testimony to be self serving and not believable. The evidence does disclose that CO Burke did fail to disclose relevant information to Inspector Graham. However, what he failed to disclose in his interview and in his testimony was that he did participate, along with CO Couchie, in a plot to get inmate Santerre to assault inmate X. [23] The duties of a CO include the care, custody and control of inmates. COs occupy a position of trust. The physical assault of an inmate without cause by a CO is a serious offence and a breach of trust. The offence committed in this instance by CO Burke is just as serious and perhaps more so, given the physical assault on an inmate along with the inducement of an inmate to commit a criminal offence. The commission of an offense of this nature by a peace officer and the serious breach of trust establishes an irreparable breakdown in the employment relationship. When this is combined with the misleading of a CISU investigator and the failure to testify truthfully at the hearing, the remedy of reinstatement simply is not a viable option. - 16 - [24] For the forgoing reasons, I find that the Employer had just cause to terminate Mr. Burke’s employment. The grievance filed by Mr. Burke dated January 11, 2011, is hereby dismissed. Dated at Toronto, Ontario this 13th day of September 2013. Ken Petryshen, Vice-Chair