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HomeMy WebLinkAbout1988-1361.Gillis.89-12-06· ONTARIO EMPLOYI~S DE LA COURONNE ~.' * .-. ' ' CFIOWNEMPLOYEES DEL'ONTARIO ""'*~*~ GRIEVANCE C,OMMISSION DE SETrLEMENT REGLEMENT BOARD DES GRIEFS I80 DUNDAS STREET WEST, TORONTO. ONTAR!Or M5G IZ8. SUITE 2100 TELEPHONE/T~L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598-0688 · ,. 1361/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT. BOARD Between: ORSEU (Gillis) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: B. A. Kirkwood vi'ce-C~airperson I. Thomson Member ~M. O'Toole Member For the GrievOr: M.' Bevan Grievance Officer ,~ Ontario Public Service Employees Union For the Employer: M. Galway Staff Relations Office~ Ministry of Correctional Services Hearing: May 19, 1989 September 19, 1989' September 20, 1989 Page 2 DECISION The grievor is a correctional officer at the Windsor Jail. He received .'a ten day suspension for his involvement in the wrongful release of an .inmate namely, Richard Joseph Lauzon, Inmate No. 223808-4 instead of Danny Thomas Lauzon, Inmate No: 223881-0 on October 14," 1988. The incident occurred on the night shift which extended from midnight to 8:'00 a'm. on that shift, the-jail had a complement, of seven officers, which inc'luded four who were assigned to specific posts, two, who were designated as spare or relief officers, and. a paro!~ officer.in training. The grievor was one of the spare officers. One of his duties was to arrange for the admission and' discharge of inmates as required, with the other spare officer, Officer Harrison. At approximately 11:40 p.m. on October 13, 1988, the Shif~ Supervisor, Mr..Hunt, advised the midnight shift.during muster, that there would be, ten releases in the morning, but he did hOE identify them'-. At the beginning of the shift,, the grievor, assisted by Officer Harrison, began the procedure for the discharge .of the inmates. The grievor and Officer Harrison obtained the files for-~he inmates who were to be released. These files had.been prepared, by the afternoon shift, and contained the Adult I~formation System; the "A.I.S." which indicates the name and address 'and al! information relating to the inmate including his photograph, the inmate's Personal Property Declaration, his P.I.N. ledger sheet, and his'Committal Order. The grievor obtained the last names of the inmates to be released.from the files and wrote down the inmates' last names on Page 3 a piece of paper which he later used to locate the inmates. Among · the files of inmates to be released was that of Lauzon, Danny, No.223881-0. He also completed.some of the paperwork that had to be processed before an inmate coul~ be discharged. He completed the P.I.N. ledger sheets~and Obtained the inmates', monies from the shift supervisor, and 'completed the Personal Property Declaration. The grievor located Lauzon on C Ward by using the placement or ward sheet, which was located in the staff room, and which indicated where each inmate resided. At 5:25 a.m., he entered ~he C Ward assisted by the~ second floor Officer, officer Hill, and opened inmate Lauzon's cell-and told him .that he Was leaving. He escorted Lauzon and two 'other inmates,~ to. the .admitting and discharge area where he was met by Officer Harrison and Parole Officer Milloy. He left Lauzon with Officer Harrison and returned -to the cell block with one of the inmates to fin~ some missing items. The grievor stated that when he returned to the admi%ting and discharge area, Officer Harrison .was in the process of stripping. Lauzcrn and returning Lauzon his clothes. The grievor gave Officer HarriSon the Personal Property Declaration and Officer Harrison returned the property as indicated on the form. The grievor proceeded tO process another inmate. ~ After inmate Lauzon was dressed' and' received the money remaining in the Lauzon account, Officer Miltoy, took two inmates, Lauzon and Meloche, and their files to-the control room for the inmates" release. Officer Trudel, who was the officer responsible for the control room, ~nd the door to the outside, stated that he did not review the inmates' files, nor their photographs nor the A.'I.S. sheets, as he assumed that the right inmates were being released. Also, as he knew that a Lauzon and a Meloche were being released, and he knew their faces, he opened the door, released. them and then 'continued with his work. Page 4 In the meantime, the grievor who was continuing to proceed with the release of other inmates, met an inmate who said that he too-was being released. When the ~rievor asked him his name, he said ~that he was Danny' Lauzon. At that moment, the grievor realized that he had probably released.the wrong inmate and rushed back to the main office control room. He asked Officer Trudel which Lauzon was in ward C and they confirmed through 'the use of the "nominal role", which is a master list of all inmates, Richard Lauzon was released mistakenly for DannY Lauzon. Mr. Hhnt was notified at ~appr.o~imately 5:55 a.m. He immediately dispatched the grievor and Officer Harr·ison ~o [he community to search for~·Richard Lauzon and notified the police and 'the Deputy Superintendent Levesque of the situation. They did not find Richard Lauzon, but during -the weekend Richard Lahzon contacted the police and turned himself in. The' grievor Was given a ten ·day suspension · for his involvement in .the incident. Mr. Harrison w~s given an eight day suspension, Officer Trudel, a five day suspensio~ and Officer Mr. Hill was given~a written reprimand. The grievor is now seeking a reduction of his suspension letter of reprimand ~nd reimbursement of his lost wages. The Union's counsel conceded that the wrong inmate was taken to the admissions and discha'rge area and was released. The union's counsel submitted however, that flaws ~in the procedure which were in place for releasing of the prisoners were contributing factors leading to the wrongful release of the inmate. He submitted that the nominal sheet did not reflect the full names of the inmates and the A.i.S. did'~not include a Polaroid photograph ·of the·inmates, but only a photocopy of the Page 5~ photograph, which in many cases was not clear enough to'identify' an inmate. The union's counsel also submi%ted that the Ministry aid not 'conduct a. Proper investigation in~o the incident and wrongfully concluded.that the grievor was more involved in the incident than he was and'accordingly gave him too harsh a penalty. He further submitted that the penalty ought to be reduced in light of the penalties which other officers, who were involved had received. In the Union's submission, the other officers were jus% as, if n~t more culpable, than the grievor. .In the Union's submission the other penalties, which were not grieved were also too severe. 'Alternatively,' the union's representative submitsed that the penalties of the other officers should not be looked at as they were obtained by negotiation. It.~was the Ministry's position that the penalty'ought not to be disturbed as.the Wrongful release of an inmat'e is move ser-ious than an inmate esCape. By assisting the 'nmate in leaving jail, the grievor breached his primary duty, to~ retain the inmates until their rightful date of departure. \ The Ministry's counsel submitted that the Board has consistently supported suspensions imposed by the employer, with one exception, where the rboard substituted a three month' suspension in place of a dismissal. As the ten day.suspension fell well within the range of reasonable penalties, managemen5's decision was reasonable and the Board ought not to disturb the penalty. Therefore, the issue is whether the penalty is excessive in light of the involvement' of the other officers and whether any contributing factors, would lead the board to find that the penalty is excessive. Page 6 In order to do so the board must consider the nature of ~he penalty 'and the nature of the-involvement of the other persons' and any contributing factors. ~ The error originated· with the grievor. He obtained the files of the inmates to be released, but did not take 'down the full names of the inmates. We heard from Mr. Stroud, the Deputy Superintendent of the ja~l, that there is a high percentage of repeaters and a high percentage of inmates 'who have the same las% name, as there are often members of the same family at the jail a~ the same time. An officer, such as the -grievor, has had 5ke experience 'to know that there could be more than one person wish ~ the same name and-therefore his own procedure for collating the names of the inmates to_ be released was defective· By not taking down ·their full names, · the grievor was not able to see that the 'Lauzon' which he found on the ward sheet was not the right one,. nor could the data sheet, which is kept on the floor where the inmate resides and provides information on the inmate, be ·of any assistance, as ~t merely corroborated that Richard Lauzon re$ide~ in that cell block. Similarly, all the other documentation was nc help in flagging .the· error as all the information related to a Lauzon. If the grievor had taken dowh the full name of Danny Lauzon, and looked at ~he data sheet, as he was supposed tp do before removing an inmate from a cell block~ the.error could have been prevented. Had he done so,. he would have found that the data would match the Richard Lauzon, but that it did not match information in the file in the admitting and discharge area for Danny Lauzon. He could have seen that the· information in the files showed that there were two Lauzons. The grievor also wrongfully certified the Personal Proper~y Declaration by· signing it at the beginning of the shift. The purpose of the Personal Property Declaration is to have the Discharging O~ficer certify' that the inmate has obtained his Page 7 personal effects, clothing and monies, as well as having the inmate certify, that he has received the same.. Without seeing the inmate before him, and without verifying his identification, the officer could not make the certification. By.treating.the Personal' Property Declaration as purely an administrative matter, which, for the sake of expediency, is to be completed' whenever there was an opportunity, was to ignore, the declaration and the certification. The Shorter Oxford English Dictionary on Historical Principles~ Third Edition, Oxford University. Press 1973 defines "certify" as follows: 1. To make (a thing) certain; to guarantee as certain; to give information of.2, To declare or attest by a formal 'or legal certificate 1461. 3. To make (a person) certain (of); to assure; to give (a person) legal or formal attestation (of) ME 4. intr. To testify to,. ~o vouch for 1625. In order' for the discharging officer to make his certification, there has to be a check to ensure that the property was given. By certifying that he has done so, he is taking on that responsibility and that guarantee. ,The necessity of ensuring the proper identification of an inmate is emphasized in the Manual of Standards and Procedures when it .states: Assigned personnel shall make certain all precautions are taken to ensure that a person being released from custody is properly identified as the person to whom the appropriate documentation applies.' A check Of the Polaroid photogr'aphs taken of inmates entering the institution for summary or indictable offences must be made. The grievor also failed to weigh Richard Lauzon as he was. ,required to do. Although it may not necessarily indicate that the Page ~ wrong inmate is being released, the weighing serves as another checkpoint~ in the identification process. Therefore, in assessing the na.ture of the error, the board' finds that it went to the essence of the correctional cfficer'.$ duties. The next consideration is to determine whether ~here were factors which contributed to the wrongful release of Richard Lauzon, and whether the factors are such that the ten day suspension is excessive. The Ministry was aware that there was a prevalence'of inmates- with the same names, and as part of its responsibilities to the public, it ought to have ensured that its own procedures would minimize the chance of.an error being made. The Ministry usually. Put either the..full name, or the last name and first initial, of each inmate who had the same name as another,, on the nominal i:s.t and on the ward sheet. However, this practice was not aiway~ done. T~e nominal list and the ward sheet for this' day was non presented in evidence and therefore the board accepts the evidence of the grievor that there was no full name nor any initial. Although the griev0r should have known that. it was not always done and should not have assumed that seeing only the last name on the ward sheet,'meant that there was only'one inmate with ..that name, had the Ministry always had the full name on the lists, the error may hav~ been prevented. In any event, the grievor's error occurred before he looked, at th'e ward sheet, when he collated all the names'~of the inmates to be discharged. 'The ward Sheet would have been an additional check. The union's representative alleged that only having 'a photocopy of the picture on the A.I.S. sheet, and a poor one at that, contributed to .the error being made as it was difficult, if Page 9 not impossible to determine the characteristics of an inmate fro~ the photocopy. Neither party produced the A.I.$. sheet that was used'in this incident, but relied on photocopies of the same. The photocopies were extremely poor and showed not much more than a silhouette of each inmate. There was also evidence that this quality was not unusual. The Ministry by retaininq the original Polaroid photograph in its master file, and by having only photocopies of the photograph accessible to the correctional officers· discharging the inmates increased the possibility of a mistake' Photoco'pies of photographs, especially of the quality that was presented ko this board, do not facilitate easy identification. However, in this. case, the poor quality of the photograph was not relevant, as the grievo~ did not look at the photocopy of %he photograph. Furthermore, the grievor also admitted, that if'he had looked at the photograph, he ~ould hot have -made t~e mistake. Therefore,the M{nistry may .have facilitated.the idenfifica.[ion process by having a photograph available, its failure to do so, did not contribute to the 'grievor's error. The un£on alleged that one half hour was insufficient time for the officers to do the discharge work and therefore some of the work had to be done whenever it is possible. The union. submitted that as the Ministry had now changed the discharge time to a later hour, the' change was a recognition of this factor. The board recognizes that the officers had more to do %hah discharge inmates, but irrespective of kheir other duties, their primary purpose is to ensure that the inmates stay in jail, unless they'are scheduled to be released, and the board cannot accept the proposition that the grievor"s' other duties, did not allow him to fulfil this function. By the Ministry changing its procedures, i~ may or may not be a recognition that there was a need for more time to 'be given. Even if there was to be ~construed as a Page 10 recognition of a problem, the presence of a problem does not sanctify this breach· of duty. In considering the degree of p~nalty they should ~be awarded, one must look at the responsibility the institution has to the publi~'. It's primary responsibility .is to hold the inmates in custody pending their release as decided.by the courts. They are responsible to ensure the.safety of the public and by so doing are responsible for ensuring that the inmates are released at the .appropriate times. The institution i~s a maximum security institution and therefore the offenders are either sentenced for more serious' charges or are being remanded pending·the court's determination whether there is sufficient evidence for trial. The proper admission and ~·e!ease of inmates goes to the essential function of the jail and accordingly, a breach of the procedure in this area must be treated seriously. Richard Lauzon was considered a high risk as he ·was being remanded for- charges of .robbery. Even though it was fortuna%e' that no incident occurred, his. wrongful release was nonetheless serious. An escape of an inmate is a differen~ matter from assisting an inmate in leaving. An escape is dependent on the.wiliness of the ihmate, which may take advantage of the negligence of the · offiCer. In Richard Lauzon's release, it was the negligence~of the grievor that not only afforded the opportunity to the inma%e to leave, but handed the opportunity to him on a platter. He was told that it was his time tO leave, and he was processed to do so, and 'he obliged. The inmate' cannot be expected to .be the correcting force to the officer's error. The wrongful release of an inmate is certainly as serious as an escape. Yet the penalty which the Ministry gave to the grievor was less than penalties which have been given to officers, who by their negligence, led to an inmate's escape. In the case of OPSEU -,Page 11 (Lusis) and The Crown in the Right of Ontario (Ministry Of Correctional' Services) G.S.B. ~579/82 (R.L.Verity) the boa=d substituted a three'month penalty for a discharge for the actions of a correctional officer which led.jto a prisoner's escape. The board took into consideration the grievor's lengthy seniority, the difficulty ~hat he would have in getting another job at his age, his can~our, and co-operation and the Ministry's outdated standing orders and the .inadequacy of information .given to the grievor, which contributed to the possibility of escape. In the' OPSEU(LEE} and The Crown in Right of Ontario (Ministry of Correctional .Services) G.S.B. 764/83 (J.W'.Samuels) the Boar~ reduced a discharge to a three month suspension after considering the grievor's clean record, his open attitude, other penalties and the effect that a penalty serves to emphasize the grievor's obligations. This case cannot be compared to' OPSEU (BiSsonnette/ Fortier/Johnson) 'and The Cr~w~ in Right of -Ontario (Ministry of Correctional Services) G.S.B. %015'4/88, 0155/88, 0156/88) in which the board reduced a one day suspension to a letter of' reprimand. In that case, the escaPe did ~ot put the- offender at large, there was no evidence of - how the escape occurred, and there was evidence of contributing factors on the part of management. ~. .The Board finds that this grievor acted honestly, openly with management'from the time of his mistake and co-operated with management in it's investigation. He sincerely regretted his error. If the' Ministry had discharged the grievor, his openness and' attitude would be important factors to be considered to lessen the penalty. However, although there are factors .to be considered in considering the excessiveness of a penalty, it does not necessarily mean that these factors reduce the penalty in every case. The penalty is not a starting point which is to be reduced whenever there are any mitigating factors. Contributing or mitigating factors are to be'considered to place the penalty given Page 13 While often the length of a penalty may be a negotiated matter within the grievance procedure, the use of' the penalty as a means to suppress a grievance.distorts the purpose of the penalty and taints the process, and is to ~e discouraged The penalty should reflect the seriousness~ of the situation and ta~e into account any other mitigating factors that may be·~applicable, and not as a means of forcing settlement. In this case, Mr. Stroud testified that he advised each participant, including the grievor, that notwithstanding' the Ministry's position, each one .still retained the right to gl%eve. The participants were also protected as each had union representation. Therefore', while we do not agree with the process that was followed, there was no basis upon which Go find that the grievance procedure was-defective, to nullify any. penalty given to the gkievor. The discussion of the Possibility of discharge in the disciplinar~ meetings with the grievor and in those meetings with the other officers involved did not make the suspension given co the grievor inappropriate. The penalty reflected the seriousness of the offence together with the effect of' the other mitiga%!ng factors. . Accordingly, this grievance is dismissed. Dated at Toronto, this 6th day of December., 1989. B'. A. Kirkwood, 'Vice Chairperson I, T/~mson, Membec ' M. O'Toole, Member