Loading...
HomeMy WebLinkAbout1988-0154.Bissonnette, Fortier & Johnson.89-03-13 ONTARIO EMPL OY~-S DE LA COURONNE " CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE CpMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. TORONTO, ONTARIO. MSG 1Z8- SUITE 2'IO0 TELEPHONE/T~L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1,Y$- BUREAU2100 (416) SgS-O68a 0354/88, 0]55/88, 0356/88 IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: ..... ~n,., (B~ssonne~%e/FortJer./Johnson~ Grfevor - and - The Crown (Hinls~r¥ of Community & Social Services) Employer Before: R.L. Verity, Q.C. V~ce-Chairperson G. Nabi Member L, Turtle Member For the Grtevor: P. Lukaslewicz Cowling & Henderson Barristers & $olicito~s For the EmDlover: S. PaTterson and D, Samazas Counsel Legal Services Branch N~n~str¥ o~ Community & Soc~ Services Hearinqs: December 13 and 15~ ]9S8 DECISION The grievors, Paul Bissonnette,.Dolores Fortier and Devon Johnson were at all relevant times Youth Service Officers at the York Observation and Detention Centre (York O..D.C.), a facility designated under the Young Offenders Act as a place of secure "temporary detention". York O.D.C. is a maximum secure facility which accommodates Metro Phase 1 young offenders between the ages of I2 and 15 charged with serious offences and who are awaiting trial or serving Short term sentences. At some unspecified time either prior to, at, or immediately following the afternoon shift change at 3:30 p.m. on February 9, 1988, J.P. a 15 year old male detainee escaped from the Upper Co-Ed Unit of York O.D.C. The unit is one of three self-contained secured areas separated by locked metal doors. Fortunately, J.P. did not escape from the' facility and was apprehended shortly before 4;00 p.m. All three §rievors were alleged to have been on duty at the time of the escape. Each rece-ived a one day suspension without pay for negligence in failing to keep the unit secure and in failing to notify the shift manager of the escape in a timely fashion, contrary to the Centre's Policy and Procedure Manual. In a disciplinary letter to each employee dated February 26, it was alleged that failure to adhere to policy violated s. 6 of the Ministry's Standards of Conduct and Disciplinary Guidelines. The grievances filed alleged discipline without just cause. The settlement requested was compensation for all lost wages and benefits and the removal of the disciplinary letters. At the outset, the Board was advised that Mr. Bissonnette had obtained other employment and had withdrawn his grievance The facts are somewhat unusual. There was no evidence introduced as to how 2.P. escaped. Similarly, there was no evidence as to the exact time of the escape. The Upper Co-Ed Unit ts a 10 bed unit located on the second floor of York O.D.C. The unit is secured by two metal locked doors - one door leading to a stairwell with. access to the first floor and the basement; and a second door leading to a }arge hallway. The Unit staff office is located in the hallway and a large ~l~ss window overlooks a dayroom in the Upper Co-Ed Unit. The hallway separates the Upper Co-Ed Unit from a 19 bed Boys' Unit which is also secured by locked metal do~rs. A stairwell in the Boys~ Unit leads to the first floor and to the basement. The shift manager's office is located on the first floor. A Lower Co-Ed Unit, also known as the Custody Unit, is a 10 bed secured facility located on the first floor directly beneath the Upper Co-Ed Unit. A program area is located on the first floor directly beneath the Boys' Unit. School facilities, a gymnasium and a cafeteria are located in the basement. On February 9, 1988, the §rievor Devon Johnson worked the day shift in t~e Upper Co-Ed Unit (7:30 a.m. to 3:30 p.m,). The written policy at Y~rk O.D.C. is that at least two staff are scheduled for duty in that unit on both the day and afternoon shifts. The uncontradicted evidence of Mr, Johnson was 'that he worked alone from 1:00 to 3:30 p,m. while his co-worker was outside the facility accompanying a resident. He testified that at approximately 3:25 to 3:30 p.m. he brought back five chilOren from the school facilities and seated them on a couch in the dayroom. Mr. Johnson then proceeded to the staff office to complete log entries and to assign points for good behaviour to each of the residents under six sea,rate categories, According to his evidence .it too'k between 15 and 20 minutes to complete those assignments. The grievor Devon Johnson testified that at 3:45 he proceeded to t.he day area to discuss the point system with each of the residents. Some five minutes later, he noticed that J,P. was missing. According to his evidence he, Bissonnette and Fortier searched all areas of the unit and then proceeded to the office to discuss the matter further, The decision was made that Johnson would a~vise the shift leader; Bissonnette would remain in the unit; an~ Fortier would continue the search in other areas of the facility. Instead of telephoning the shift supervisor~ Mr. Johnson walked to her office on the first floor via the second floor stairwell. He found that the first floor Co-Ed Unit door was blocked because of construction and proceeded to the basement and via another stairwell to the program area and eventually to the shift manager's office. Shortly before 4:00 p.m. Miss Fortier found J.P. hiding under a bed in the Boys' Unit on the second floor. She called shift' manager Ilona Ferrari, to report that J.P, had been found and requested that Devon Johnson be so advised. Ms. Ferrari had not been informed of the .escape and expressed concern as to why she had not been so advised. Ms. Ferrari was'told by Niss Fortier that the incident happened at 3:30, Mr. Johnson appeared at the shift manager's office following the telephone call. Ms. Ferrari candidly acknowledged that she could not recall the. contents of her conversation with Mr. Johnson. However, she formed the opinion that Johnson did not advise her of the escape. Mr. Johnson's evidence was to the contrary. Miss Fortier and Mr. Bisson~ette worked the afternoon shift on the Upper Co-Ed unit on the day in question (3:30 p.m. to 1I:30 p.m.). Miss Fortier testified that she arrived on the uni~ at approximately 3:25 an6 t~at Mr, Bissonnette arrived shortly after 3:30. She recalls asking Mr. Johnson what kind of a day he had and.~ being told that 2.P. had requested to go to the quiet room and that he wanted "a Big Mac" Shortly thereafter Miss Fortier received a telephone call from the Centre's visiting area that she bring down the coat and shoes of a departing detainee. She complied with the request and left the unit. According to her evidence when she returned she then learned that J.P. was missing. She participated in a thorough search of the unit with Messrs. Johns'on and Bissonnette. Miss Fortier alleged that she requested ~lr. Johnson to contact the shift manager on his way out of the facility. She then exited the unit and proceeded to the Boys' Unit where she met Mr. Murphy, another Correctional Officer, and a workman. Miss Fortier and Mr. Murphy located J.P. in the Boys' Unit lying under a bed. Ms. Ilona Ferrari was the shift manager on duty' when the escape occurred. She was of the opinion that J.P.'s escape was a imajor security breach. Her concern was that she had not been advised of the escape at a time when the security of the institution was at risk.- Ms. Ferrari contended that she should have been immediately contacted by telephone or by walkie-talkie. Hugh Robinson is Program Manager at York O.D.C. and second in command at the facility. He was immediately conttcted by Ms. Ferrari a~d apprised of the situation. After reviewing all occurrence reports, and making certain investigations on his own, he held a series of fact finding meetings with each of the grievors in the presence of shift manager Ferrari, Mr. Robinson believed that the grievors should have been alerted by J.P.'s behaviour prior to the escape. He concluded that each of the grievors was negligent and that explanations were inconsistent. Following disciplinary hearings on February 18, Mr. Robinson wrote the suspension letters. In.argument, the Employer contended that the penalty imposed was reasonable and justified under either or both branches of discipline. Mr. ?atterson maintained that it was important that policies and procedures, and compliance with them, be upheld. The Union argue'd that the Employer failed to prove either element and that' management's case was entirely circumstantial. In the alternative, Mr. Lukasiewicz urged the Board to substitute a letter of reprimand for the penalty imposed. Several extracts from the Bolicy and Procedure Manual at York O.D.C. were made exhibits as follows: TITLE: SECU'RIIY: GENERAL Apr. 1, 1987 POLICY: Secur}ty is a major component of all programs at the Centre in order to provide a safe and secure environment, All residents must be regarded as security risks. Strict' adherence to security policies and procedures is expected and failure to do so may resul.t in disciplinary action. The Centre provides policies and procedures to provide direction and guidance and training opportunities to staff which assist staff in carrying out their duties to maintain security and manage emergencies that threaten the security of the Centre. PURPOSE: To ensur'e safety of staff and residents. TITLE: RESIDENTS OUT OF EYESIGHT: SUPERVISED April 1/87 POLICY: Between 07:30 and 22:00 hours, residents out of eyesight of staff must be checked every 5 minutes by the staff. (Excluding Secure Isolation see page S39) PURPOSE: To ensure safety and security of residents. PROCEDURE: Staff checks each resident who is out of eyesight; eg. bathroom, own room, etc. every five minutes. TITLE: ENERGENC¥: ESCAPE April 1/87 POLICY: No resident who is a) in secure detention or b) serving a secure custody sentence may leave York Detention Centre without an escort or approved Temporary Release, or go missing while out - with or without escort. To do so is to have deemed to have escaped custody. PURPOSE: To ensure the health and safety of the community and the resident. PROCEDURE: I ESCAPE OR UNAUTHORIZED LEAVING FROM CENTRE A If a staff person has reason to believe a resident is missing, the staff will: a). notify the shift supervisor b) do a head count of all residehts c) secure and search the area The shift supervisor will: ensure all resident movement in the building is stopped. b) ensure count of all residents. c) proceed to emergency area. manage a thorough search of the area or of the building, as needed. The grievors acknowledged having read and understood the Policy and ?rocedure Manual and indeed signed written acknowledgements to that effect. S.6 of the Ministry's Standards of Conduct and Disciplinary Guidelines (November 1983) reads as follows: There can be no doubt that the unauthorized movement of a resident within a facility such as York o.D.c, is a serious matter. On the evidence adduced, the Board is satisfied that both grievors were negligent as alleged. While on duty in the unit, the grievors are responsible for the secure detention and custody of residents within their care. We agree with the Employer's submission that the grievors should have been alerted by J.P. 's behaviour to the potential for escape prior to that escape. The duty to keep residents under constant surveillance is an essential ingredient of the position of Youth Service Officer. Similarly, it is essential that the £entre's Policies and Procedures be strictly adhered to. Violation of those pol.icies and procedures will i~evitably lead to ~ifficulty. There can be no reasonable excuse for the delay in notifying shift manager F'errari of the escape. At the Hearing, Mr. Johnson testified that J.P. was discovered missing at approximately 4:40 p.m. That evidence appears to contradict E×~ibit 6, which is notes made during the fact finding interview with Mr. Johnson's on February 10 where he was alleged to have stated "about 20 minutes passed between the time ! noticed J.P. mis~i~g and the time that we found him". Regardless of which version is correct, the Board is satisfied that the delay in notifying the shift supervisor Ferrari was significant and constituted a violation of the Centre's Polic}es and Procedures. As indicated previously, there are some troubling aspects to this case. There is no evidence how the escape occurred or the time of the escape. Regarding the time element, did the escape occur on the day shift prior to Miss Fortier's arrival? Did it occur on the afternoon shift when Fortier and Bissionnette were responsible for the supervision of .the residents? The escape policy does not specify the method of notifying the shift manager. If management is to rely on a policy, the policy must be clear. The minimum staffing requirements for both the day and afternoon sh~ft requires "at least two (2) direct care staff scheduled in the upper co-ed unit". Admittedly, management has the right to deploy regularly scheduled staff. It is understandable that two staff are not required when the children are away from the unit attending school, However, the evidence established that school finishes at approximately 3:15 p.m. In our opinion, it. makes sense that two staff be on duty at the unit between 3:15 and the end of the shift at 3:30. Where there is no formal overlapping of shifts it is difficult to imagine how one staff acting alone can be expected to complete the point system in the office and at the same time be responsible for the security of residents in the unit. In cross-examination, Ms. Ferrari testified that although she came on duty at 3:00 p.m. on the day in question, she was unable to confirm or deny whether Mr. Johnson was working alone as alleged. The Policy and Procedures Manual makes it clear that the shift supervisor has an obliga.tion to evaluate "the adequacy of the Centre staffing" and to increase the staffing as required. Clearly, Miss Ferrari did not perform that responsibility at the relevant t'imes on February 9. In our opinion, the chances of an escape occurring at the shift change would be greatly reduced if the shifts overlapped to some extent. For example, if the afternoon shift was required to report 10 or 15 minutes prior to the end of the day sh%ft, the security aspect would be enhanced. On the day in question, security was not ir place at the centre 6ue to the unusual circumstances of construction work on both the Boys' Unit and the Lower Co-Ed Unit. The doors on both units were left open to facilitate easy access by the workmen. Despite the evidence of Mr. Robinson, the Board finds that the weight of evidence supports the contention that the magnetic locks on the units metal doors intermittently malfunctioned. Mr. Robinson 'did indeed acknowledge that the 'doors had been a problem iN the past, although he satisfied himself that on the evening of February 9, the doors to the co-ed unit were functioning properly. It may well have been the case that the J.P, escaped the unit because the metal door leading to the hallway malfunctioned. Having carefully reviewed all the evidence, the Board finds that there were contr'ibuting factors on the part of management which facilitated the escape. In our opinion, the §rievors should not be held totally responsible for the consequences of J.P~'s escape. Accordingly, this ts the appro-priate case, we think, to vary the penalty imposed. The disciplinary letters of February 26 shall be rePlaced by letters of reprimand for the same reasons initially expressed. The grievors shall be forthwith compensated for all lost wages and benefits, but without interest, In the result, the grievances shall succeed in part. DATED at Brantford, On~tario, this 13th day of March , 1989. R. L. VERITY, Q.C. - VICE-CHAIRPERSON G. NABI - MEMBER L. TURTLE - MEMBER