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HomeMy WebLinkAboutP-2012-3436.Dyson.14-01-08 DecisionPublic Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 P-2012-3436 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Gregory Dyson Complainant - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Donald D. Carter Vice-Chair FOR THE COMPLAINANT Gavin Leeb Gavin Leeb Law Office Counsel FOR THE EMPLOYER Felix Lau Ministry of Government Services Legal Services Branch Counsel HEARING May 24, November 7, November 21, December 5 & 18, 2013 - 2 - Decision [1] The complaint, an Operational Manager employed at the Niagara Detention Centre, was advised by a letter from the employer, dated October 23, 2012, that he had been dismissed for cause pursuant to sec. 34 of the Public Service of Ontario Act. At the hearing, the employer relied on three separate incidents to justify its decision to discharge the complainant with no compensation. The first incident involved the alleged failure of the complainant to report the use of excessive force by a Correctional Officer while conducting a strip search at the Niagara Detention Centre on January 11, 2012. The second incident occurred on July 5, 2012, at the Niagara Detention Centre when the complainant was alleged to have used excessive force by kicking a meal hatch while an inmate’s arm was protruding from the opening, causing injury to the inmate’s arm. The third incident involved an alleged lack of diligence by the complainant in performing his duties as Compliance Officer in preparing the report of another use of force incident that had occurred earlier on January 3, 2010, at the Elgin-Middlesex Detention Centre. In his report of that incident the grievor had characterized the injuries to the inmate incurred as the result of a use of force as being consistent with a discractionary blow and then had prepared a report for management signoff that had inaccurately stated that there had been no injuries to the inmate. [2] The complainant is 49 years old and had been employed by the Ministry of Community Safety and Correctional Services since 1990 after serving for 6 years in the Canadian military. He has received an exemplary service medal from the employer and has also received the Queen’s Diamond Jubilee Medal for his volunteer work. He is married and the father of two children, ages 10 and 12. There is no dispute that the complainant has had great difficulty in - 3 - finding full-time work and supporting his family following his dismissal from his employment with the Ministry. [3] The complainant did not dispute that these three incidents had occurred but provided an explanation for each one of them. With respect to the first incident on January 11, 2012, the complainant testified that inmate M had become upset when advised that he would be moved from his segregation cell and claimed to be suicidal. The complainant, who was shift supervisor on that day, then decided to empty the cell of all non-essential items and to order a strip search of the inmate. The strip search was conducted by a Correctional Officer who, after encountering passive resistance from the inmate, pulled him to the cell floor and then brought him under control for the strip search to take place. The complainant testified that, even though he was in the cell at that time, he was engaged in removing items from the cell and did see any acts of excessive use of force by the Correctional Officer. As a result, the first occurrence report that he filed that day made no mention of excess force being used by the Correctional Officer. He also testified that, after the filing of an injury report by the inmate, he had reviewed the video record of the strip search and concluded that the Correctional Officer had not used excessive force but had simply used his knee to gain control over the inmate by moving in close to his body. He continued to maintain this position at a formal interview with the institution’s Deputy Superintendent of Operations, Tracy Jones, on February 1, 2012. At the hearing, the complainant testified that at those times he honestly considered the Correctional Officer’s actions as appropriate, but that he now could see that the Correctional Officer’s actions could be regarded as prohibited knee strikes to inmate M’s stomach and back. - 4 - [4] With respect to the second incident, the complainant testified that July 5, 2012, was a particularly busy day at the Niagara Detention Centre since approximately a third of the inmate population was being re-located within the institution that day. On that same day, inmate G was being very disruptive, having setting off a fire alarm and then flooding his cell. Inmate G was then moved to a segregation unit but his disruptive behaviour continued as he refused to retract his arm from the meal hatch in his segregation cell. The complainant, even though he was not the Operational Manager in charge of the segregation unit, then took it upon himself to resolve this problem quickly. The tactic that he chose was to yell loudly at inmate G telling him to get his arm back in the cell and then kick the meal hatch shut. This tactic, however, did not work as intended since inmate G’s arm was injured by the kicked meal hatch when he did not retract his arm sufficiently quickly. In his testimony, the complainant stated that he was not immediately aware that the inmate had been injured but that, once he realized that there had been an injury, he had made sure that it was properly reported. The complainant expressed regret for the unintended consequences of his actions, describing his conduct as a “complete rookie mistake”. [5] With respect to the third incident which occurred in January of 2010, the complainant testified that, when preparing the cover letter, he had used a previous letter as a format which he then altered by cutting and pasting. However, in doing so he had neglected to change the wording of the format to indicate that the inmate had been injured. He further testified that he was upset and embarrassed when some time later his error was brought to his attention. At that time, he realized he had made a mistake and had embarrassed the Ministry when that mistake later came to light. - 5 - [6] The central issue in this case is whether there was just cause to terminate the grievor’s employment with no compensation. Counsel for the employer argued that the complainant’s conduct in the three incidents amounted to a serious breach of the responsibilities entrusted to Operational Managers for the custody, care, and control of inmates. The use of force that had resulted in injury to inmate G was totally unjustified as this inmate posed no threat to others or himself. Moreover, the complainant had not given the inmate sufficient time to respond to the complainant’s direction to retract his arm and had shown no concern when the inmate initially complained of being injured. Counsel argued that the failure to properly supervise the strip search of inmate M, his further failure to report an excessive use of force by the Correctional Officer after he had reviewed the video of the incident, and his subsequent failure to acknowledge this oversight in his interview with the Deputy Supervisor of Operations each amounted to serious breaches of his responsibilities as an Operational Manager. Finally, while his mistake in preparing the cover letter for the report of the incident at the Elgin Middlesex Detention Centre was less serious, it nevertheless raised concerns about the complainant’s abilities as a manager. [7] Counsel for the employer argued that a theme underlay all of these incidents and that theme was that the complainant had a cavalier attitude toward the use of force. In light of this attitude toward the use of force, the complainant’s discharge was justified and reinstatement to any position within the Ministry would be completely inappropriate. The employer also argued that, in any event, the Board was restricted in its remedial response by section 24 of the Public Service of Ontario Act, 2006. That section reads: 24. (1) In making a decision on a grievance, the Public Service Grievance Board shall not provide for the employment of a public servant in a position that involves direct responsibility for or provides an opportunity for contact with a vulnerable person - 6 - specified in a regulation made under clause 31 (1) (a) if the Board has found that the public servant, (a) has applied force to a vulnerable person, except the minimum force necessary for self-defence or the defence of another person or necessary to restrain the vulnerable person for his or her own protection; or (b) has sexually molested a vulnerable person. 2006, c. 35, Sched. A, s. 24 (1). Same (2) Where subsection (1) applies, the Public Service Grievance Board may provide for the employment of the public servant in another, substantially equivalent, position. 2006, c. 35, Sched. A, s. 24 (2). [8] Counsel for the complainant acknowledged that this statutory restriction operated to restrict the Board’s remedial authority. However, he argued that the employer had not made out just cause for discharge and it was still open to this Board to reinstate the grievor in another, substantially equivalent, position. Counsel submitted that the primary reason for the employer’s decision to dismiss the complainant was the incident involving inmate G as evidenced by the employer’s delay in imposing discipline for the two earlier incidents. Counsel argued that, even though the inmate had been injured, any intent to injury was lacking so that the complainant’s conduct could not be characterized as a wrongful use of force. According to counsel, what had occurred was an error of judgment rather than a malicious attack. Moreover, once the grievor had realized that he had made a serious mistake, he initiated the proper reporting procedures and made no attempt to hide that mistake. As for the incident involving inmate M, counsel for the complainant was prepared to concede that the complainant should have been supervising the strip search instead of picking up various items from the inmate’s cell, but argued that this failure by itself could not justify termination of employment. Moreover, after viewing the video of the incident, the complainant had an honest belief that excessive force had not been used so that it could not be said that the complainant was in any way attempting to cover up the incident. Finally, counsel submitted that the grievor’s - 7 - mistake in preparing the inaccurate cover letter for the January 2010 incident at the Elgin Middlesex Detention Centre was an understandable error that anyone could make and for which the complainant had admitted embarrassment. [9] Counsel for the complainant argued that discharge was far too severe a response given the impact it has had on both the grievor’s economic situation and his sense of self-worth. The complainant had been dedicated to his job, enjoyed his work and, since his discharge, had been unable to obtain full-time employment. Counsel argued that, while the Board might be prevented by the Public Service of Ontario Act from reinstating the grievor to his former position, it still could reinstate him to a substantially equivalent position, leaving it open to the employer to put him back in his old job should it choose to do so. Counsel also submitted that the remedy of compensation in lieu of reinstatement, while a possible alternative to reinstatement, should only be used as a remedy in exceptional circumstances and not in this case where it was still possible to restore a working relationship between the complainant and the employer. [10] There is no question that the complainant should have received some discipline for the three incidents. What is in dispute is whether dismissal without compensation was appropriate in light of the complainant’s long service, his prior exemplary work, and its serious economic and psychic impact upon him and his family. Certainly the incident at the Elgin-Middlesex Detention Centre did not justify such a severe penalty and the employer acknowledged that a short suspension would have been appropriate for this incident standing alone. Justification for dismissal without compensation, therefore, must depend on how the other two incidents are to be viewed. - 8 - [11] The complainant’s actions surrounding the strip search of inmate M raise serious concerns. The complainant, although initiating the strip search, then began to remove various items from the cell without providing any supervision to the Correctional Officer conducting the search. The Board accepts the complainant’s evidence that he did not observe the use of excessive force by the Correctional Officer at that time of the search because he was distracted by his own activities, but his failure to properly supervise the strip search reflects poorly on his good judgment as a manager. Even more troubling is the complainant’s failure to report what clearly appeared to be an excessive use of force once he had viewed the video of the strip search following the incident, and his failure to recognize that possibility until he testified at the hearing. The employer had every right to expect that one of its managers would not turn a blind eye to any appearance of an excessive use of force. The complainant’s failure to report what on the video appeared to be a use of excessive force is particularly troubling given the complainant’s extensive experience as a use of force instructor. Whatever the complainant’s motive for this failure, the Board must at least draw the conclusion that the complainant exercised very poor judgment as a manager in not properly reporting the conduct of the Correctional Officer as recorded on the video. [12] The incident involving inmate G is even more troubling. While the Board is prepared to accept the complainant’s testimony that he did not intend to injure inmate G, it still must draw the conclusion that the kicking of the meal hatch constituted conduct that was reckless in the extreme. The inmate, although being an annoyance, posed no danger to himself or others and the complainant’s precipitous actions gave the inmate no real opportunity to retract his arm in time to avoid injury. It is clear that the complainant acted impulsively with no regard for the consequences of his actions. The complainant himself admitted that he had made a “complete - 9 - rookie mistake”. Such a mistake, especially when made by someone with extensive experience as a use of force instructor, is difficult to comprehend. One conclusion, however that can be drawn from this incident is that the complainant in the exercise of his responsibilities as an Operational Manager had once again demonstrated very poor judgment. [13] In assessing whether dismissal was the appropriate response, however, the Board must also give weight to the complainant’s long service and his otherwise exemplary work performance as well as its serious financial and psychic impact on the complainant and his family. Counsel for the complainant argued that in light of these factors dismissal was too severe a response, arguing that it was still possible to restore the employment relationship. The problem in this case, however, is that the complainant through his reckless actions applied excessive force to a vulnerable person so that the Board has no jurisdiction to restore him to his former position. The only option available is to reinstate him to a “substantially equivalent position”. In the complainant’s case, a substantially equivalent position would have to be a position at a managerial level but one not involving contact with inmates. The problem with this option is that the evidence clearly shows that on two separate occasions the complainant had exercised extremely poor judgment as a manager. Both of these lapses of judgment went to the heart of the complainant’s responsibility as an Operational Manager to ensure the safe care, custody, and control of the inmate population. This lack of judgment, in the Board’s view, is sufficient to justify a conclusion that the complainant through his own conduct has irreparably damaged the trust and confidence that the employer must have in its managers. Moreover, even if the Board might have authority to reinstate the complainant in some lesser position, the complainant’s serious lapses of judgment makes it doubtful that any type of employment relationship with the employer could be successfully restored. - 10 - [14] On the other hand, the Board is not convinced that dismissal without any compensation at all was the appropriate managerial response in the circumstances of this case. Recognition should have been given to the complainant’s past good service and the severe financial hardships that he was likely to face in a very difficult job market. However, the failure by the employer to take these factors into account does not mean that it is now appropriate to reinstate the complainant to employment. In the Board’s view the appropriate remedy in this case is compensation in lieu of reinstatement. In reaching this conclusion the Board has considered the case law submitted by complainant’s counsel to the effect that only in the most exceptional circumstances should this remedy be a substitute for reinstatement. These cases arose from a collective bargaining context where dismissal generally requires just cause, preempting any option for dismissal without cause. The statutory regime administered by this Board, however, clearly contemplates the option of dismissal without cause where an employee’s only remedial recourse would be damages for lack of reasonable notice. The fact is that in this case the complainant could have been dismissed without cause with no possibility of reinstatement at all. [15] The final question to be addressed in this case is the amount of compensation to be awarded in lieu of reinstatement. Counsel for the complainant, while vigorously arguing for reinstatement, submitted in the alternative that, if compensation without reinstatement were to be ordered, this Board should at least follow the approach taken by its sister tribunal, the Grievance Settlement Board, in Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario) (Moore Grievance), [2011] O.G.S.B.A. No. 125. In that case, the Grievance Settlement Board used a formula of 1.25 months wages for each year of service. This formula, however, took into account the employee’s loss of collective bargaining rights – a factor not present in this case. It must be kept in mind that cases arising before the Public Service - 11 - Grievance Board do not arise from a collective bargaining context so that a factor such an employee’s loss of collective bargaining rights should not be taken into account. Therefore, in determining the appropriate amount of compensation in lieu of reinstatement, it is more appropriate to consider what the damages would have been if the employer had pursued the option of terminating the grievor without cause and was required to pay complainant the required amount of reasonable notice [16] In making this calculation, the Board considers that the appropriate factors to consider are the ones set out in the Bardal case [1960] O.W.N. In that case four factors were listed: an employee’s age; an employee’s length of service; the status of the job that was lost; and the availability of employment for an employee following termination of employment. Applying these factors in this case, it is clear that, while the complainant was not a senior executive, he was employed in a position that carried some respect in the community. He had been employed by the Ministry since 1990 and had been recognized for his past exemplary service. He is 49 years old and, since his dismissal, has only been able to obtain part-time and occasional employment in an extremely difficult job market. In this case, the Board considers it appropriate to give particular weight to the difficulties that the complainant has faced in finding employment following his dismissal. It is clear that the complainant has diligently sought all types of employment and has met with no success in finding a position that is in any way comparable to his former job. Weighing all of the factors, the Board concludes that the appropriate compensation in lieu of reinstatement is an amount representing 24 months’ wages and benefits (including any overtime and premium payments) plus interest as stipulated by the Courts of Justice Act. The employer is directed to pay out this amount in a manner most financially favourable to the complainant provided that the method of payment is consistent with all federal - 12 - and provincial laws. The Board remains seized to deal with any difficulties arising from the implementation of this award. Dated at Toronto, Ontario this 8th day of January 2014. Donald D. Carter, Chair