HomeMy WebLinkAbout1989-0414.Dannenberg.91-01-16 O~/TARIO £MPLOY~$ DF. LA COURONNE
CROWN EMPLOYEES OE t,.'ON TAR~.O
GRIEYANCE 'C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
;80 DUNDAS ~TREET WE,?,T. TORONTO, ONTARIO. MSG 1Z8 - SUITE 2100 TELEPHONE/T~'L~'PHONE
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414/89
IN THE FATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BANGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN ' OPSEU (Dannenberg)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE: N. Dissanayake vice-Chairperson
M. Lyons Member
D. Montrose Member
FOR THE M. Bevan
GRIEVOR Grievance Officer
Ontario Public Service Employees
Union
POR THE J. Benedict
EMPLOYER Manager
Staff Relations & Compensation
Ministry of Correctional Services
HE~RINGt October 13, 1989
June 13, 1990
2
DECISION
The grievor, Mr. Peter Dannenberg, a Correctional Officer
2 employed at the Metro-Toronto West Detention Centre,
grieves a 15 day suspension without pay imposed on him. The
discipline followed the escape on September 14, 1988, of a 19
year old male inmate K, while he was on a hospital escort in
the custody of the grievor. MTWDC is a detention centre
primarily serving as a remand facility for inmates awaiting
trial or transfer to other institutions. The inmates include
those charged with minor offences as well as those charged
with the ~ost serious crimes such as murder. MTWDC is
classified as a maximum security facility. At the relevant
time the grievor had~14 years of service with the Ministry.
Since 1976 he has been a employed at the MTWDC as a
correctional officer.
On September 14, 1988, inmate K had claimed that he
suffered an injury in an altercation which had. occurred during
a visit to the court' earlier that day. A decision was made
to send K to Etobicoke General Hospital for an examination.
The shift supervisor assigned the grievor to escort the inmate
to the hospital. After the medical examination was completed,
the grievor had to allow K to get dressed again to be taken
back to the institution. It was during this time that ~the
escape took place. The grievor immediately radioed for help.
The inmate was apprehended by the police the following day.
The griever testified about the escape. While in the
examination room, K was in hand-cuffs and was also re~trained
by leg-irons, one side secured to an ankle and the other to
a bed-rail. In order to allow K to put his shirt back on, the
griever took his hand-cuffs off. The griever testified that
once K had put his shirt on, he put the hand-cuffs back on,
but that he "must have put them on loosely because he slipped
out of them". Then in order to permit K to put his pants back
on, the g~ievor removed the end of the leg-irons that was
attached to K's ankle. He did this by kneeling in front of
K, who was standing by the side of the bed. According to the
griever, at the time he was positioned between the inmate and
the door to the examination room. The griever testified that
as soon as he had unsecured the leg-iron from K's ankle, K hit
him on the back with both hands, causing him to fail back.
K then jumped over him and made his escape.-When the griever
got up and turned around he saw the hand-cuffs lying on the
floor just outside the door to the examination~room. The
griever immediately took up pursuit of K, but was unable to
prevent his escape.
The Union's submissions are two-fold. Firstly, it is
submitted that the discipline must be declared null and void
altogether because of the Employer's delay in imposing the
4
discipline. Secondly, and in the alternative, it is contended
that the grievor at most was guilty of a momentary lapse of
good judgement and that in light of the grievor's long service
and unblemished disciplinary record, a 15 day suspension was
too harsh. It is counsel's position that the Board should
rescind the sumpension and substitute the penalty by directing
that a letter be placed on the grievor's file. If the Board
feels that a suspension is warranted, it is submitted that it
should be. no more than 3 days.
The delav'in imposing discipline
The escape occurred on September 14, 1988. The Employer
acted almost immediately by appointing an investigator, Ms.
Denise Scrivano, to investigate the incident. Ms. Sqrivano
commenced her investigation on September 16, 1988. The
investigation, which included a nUmBer of interviews, was
completed sometime during the first week of October 1988. Ms.
Scrivano testified that she took one week of vacation in
November and 2 1/2 weeks of vacation in December. Before she
went away in December, she gave a verbal report of her
findings to Ms. D.L. MacKinnon, the Deputy Superintendent and
Mr. R.D. Phillipson, the Superintendent. Ms. Scrivano
explained that af'ter she had finished her investigation of the
September 14th escape, a number of other investigations were
assigned to her. As a result she had %0 prioritize her work.
Under cross-exam/nation she agreed that the severity of the
5
incident was one of the factors she considered in setting her
priorities and that the September 14th escape was not
considered a high priority. As a result her formal report was
not submitted until February 8, 1989. The Employer
communicated its decision to suspend the grievor without pay
for 15 days on March 23, 1989.
The Union contends that a delay of over 5 months between
the incident and the imposition of the discipline is
unreasonabie. Counsel cited a statement in Palmer, Collective
AGreement ~rbitration in Canada, Butterworths, p. 284, that
"... an employee can consider .that no discipline can be
imposed against him for any act if the employer fails to act
in a timely way" and also relied on Re Reimer Exl0ress Lines
Ltd. (1958) 8 L.A.C. 341 (Schwenger); Re Corporation of the
Borough of North York, (1979) 20 L.A.C. (2d) 289 (Schiff); and
Re Municipality of Metropolitan Toronto, (1981) 29 L.A.C. (2d)'
169 (Samuels). Counsel .argues that given the delay, the
grievor was entitled to reasonably conclude that he will not
be. disciplined, and urged the Board to bar the imposition of
any discipline.
We have reviewed the cases relied on by the Union. The
rationale in those cases is that where, by unreasonably
delaying discipline, the employer leads an employee to
reasonably believe that his conduct had been forgiven or
condoned, the Employer may be barred from imposing any
penalty. Thus in Re Borouqh of North York (supra) at p. 290,
the arbitrator states: "But delay beyond that, justifying the
employee's conclusion that his conduct is condoned, bars levy
of any penalty." In applying the statement in Palmer to the
facts before him, the arbitrator in Re Municipality of
Metropolitan Toronto (s~_~) at p. 172 stated: "... I think
that Palmer is referring to the obvious point that the
Employer must not lead an employee to believe his performance
is satisfactory and then, long after an incident, inform the
employee t~at he had committed some wrongful act and impose
discipline for it."
In the case at hand, can it be said that the Employer led
the grievor to believe either that his conduct on September
14, 1988 was acceptable or that if it was culpable, that the
conduct had been forgiven or condoned? We do not think so.
The grievor was at all times aware that an investigation had
taken place and that the investigation report had not yet been
released. He testified that in late November or early
December 1988 he inquired from Ms. MacKinnon what the status
of the investigation was. At least at that point in time he
was aware that the matter was not at an end. According to
him, Ms. MacKinnon's response was "Don't worry. I can tap-
dance". The grievor testified that he interpreted that
statement to mean "if anything came out the investigation I
7
know how to dance around it". That in turn meant to the
grievor that the whole matter was at an end. The Board does
not see how the grievor could have interpreted Ms. MacKinnon's
statement as an assurance that he will not be disciplined.
The grievor was aware that an investigation was underway. He
had been interviewed twice by the investigator. He was aware
that a number of other persons were also interviewe~. He must
therefore have been aware that the employer was still actively
pursuing the matter. Thus it must have struck him as strange,
to .say the least, that the assistant superintendent would so
casually ~ssure him, while the investigation was still going
on, that he would not be subject'to any discipline. The
statement attributed to Ms. MacKinnon is meaningless. If it
is to be given any meaning, .it can mean a number of things.
For example, it could just as easily have been interpreted to
mean that Ms. MacKinnon was promising leniency for the
grievor. In our view the grievor should not and would not
have reasonably understood such a vague statement as' an
assurance of a total absence of discipline. The delay in
question was inappropriate. There is no doubt about that and
to the Employer's credit, that was admitted. The fact that
Ms. Scrivano had other investigations to conduct' is not a
valid excuse. Yet the fact remains that in all of the
circumstances, despite the delay, the grievor could not
reasonably have concluded that his conduct had been forgiven
or condoned. Counsel for the Union drew our attention to a
7
know how to dance around it". That in turn meant to the
griever that the whole matter was at an end. The Board does
not ee how the griever could have interpreted Ms. MacKinnon's
statement as an assurance that he will not be disciplined.
The ~rievor was aware that an investigation was underway. He
had ~een interviewed twice by the investigator. He was aware
that a number of other persons were also interviewed. He must
therefore have been aware that the employer was still actively
purs~ing the matter. Thus it must have struck him as strange,
to say the least, that the assistant superintendent would so
casually assure him, while the investigation was still going
on, that he would not be subject to any discipline. The
statement attributed to Ms. MacKinnon is meaningless. If it
is t~ be given any meaning, it can mean a number of things.
For example, it could just as easily have been interpreted to
mean that Ms. MacKinnon 'was promising leniency for the
griever. In our view the griever should-not and would not
haveI reasonably understood such a vague statement as an
assurance of a total absence of discipline. The delay in
question was inappropriate. There is no doubt about that and
to he Employer's credit, that was admitted. The fact that
Ms. Scrivano had other investigations to conduct is not a
valid excuse. Yet the fact remains that in all of the
circumstances, despite the delay, the griever could not
rea~onably have concluded that his conduct had been forgiven
or condoned. Counsel for the Union drew our attention to a
number of provisions in the collective agreement which
anticipate the prompt resolution of complaintsand differences
under the agreement and the timeliness provisions negotiated
by the parties to ensure that result. However those
provisions all deal with the ~rievance procedure after a
complaint or difference has arisen, namely, where an'employee
or the Union believes that the employer has violated the
collective agreement. Then the collective agreement provides
for mandatory time-limits for the processing ofthe grievance.
The Board's function is to technically apply the time limits.
The partie~ nave not negotiated any time-limits, mandatory or
otherwisf, for the imposition of discipline. Therefore it is
not a T.atter that can be decided in a technical way. On'the
oth~ J hand, it is a matter of fairness and equity. What
~' ~itrators have held in effect is that once an employee is
reasonably led to believe that his conduct has been forgiven
and condoned it is not fair or equitable to later discipline
him for the same conduct.. As already noted, that has not
occurred here. Accordingly, the Union's first argument fails.
Aopropriateness of 15 day suspension
The Union does not dispute that the grievor deserves some
discipline for his conduct which contributed to K's escape.
Its contention is that a 15 day suspension without pay is
excessive in all of the circumstances.
9
On the basis of the evidence we conclude that the grievor
re-applied the hand- cuffs on K before removing the leg-irons,
but did not dead-lock it. We also find that he applied the
hand-cuffs loosely. This is consistent with the fact that K
was able to slip out of them and the fact that the hand-cuffs
were found outside the door to the examination room. If the
grievor had not applied the hand-cuffs at all, it is likely
that the hand-cuffs would have remained in close proximity to
where the grievor was when K ran away. There was no reason
for the inmate to take the hand-cuffs'with him and drop them
outside t~e door. However, if the grie¥or had the cuffs
loosely on and not dead-locked, it is entirely plausible that
it took K a couple of seconds while 'he was running away to
slip out of the cuffs. The General Duty Corporal on the day
in question, Mr. David Marsh, and a shift supervisor, Mr.
William Gordon, reported in their occurrence reports, and
confirmed in their testimony, that shortly after the incident
the grievor in describing the escape told them that he had re-
applied the hand-cuffs loosely. The inmate, K, was not called
to testify. In his statement, K had stated that he did not
have the cuffs on at the time. However, we prefer the more
reliable euidence indicating that the grievor had re-applied
the hand-cuffs but did so loosely and that he had failed to
"dead-lock". the hand-cuffs.
10
The grievor is an experienced correctional officer. He
has had hospital escorts on numerous occasions in the past.
He knew that the institution's standing orders required that
an inmate must be restrained by both hand-cuffs and leg-irons
during a hospital escort. If the medical procedures required
it, he was allowed to remove the restraints, but not both at
the same ~time. The Employer filed in evidence the ·
institution's standing orders and other directives issued to
correctional officers. We do not intend to set those out here
because the Union does not dispute that the grievor knew that
he was reciuired to have the hand-cuffs properly on and dead-
locked, before he proceeded to remove the leg-irons. Besides,
at the time, the grievor was assigned to escort K, an
"acceptance of medical temporary absence conditions" issued
clearly stated "security equipment at'all times". The grievor
failed to comply with the standing orders or the specific
condition of K's temporary absence, by failing to properly
secure the hand-cuffs before removing the leg-irons. In
addition, he rendered himself vulnerable to an attack by the
inmate, when he knelt down at the inmate's feet to remove the
leg-irons. He admitted,under cross-examination that he had
less risky alternative ways o.f removing th~ leg-irons. The
method he used was even more troublesome given the fact that
he had also not properly secured the grievor's hand-cuffs.
There can be no doubt on the basis of the evidence that the
combined effect of the grievor's conduct, namely his failure
11
to properly secure the hand-cuffs and the manner in which he
removed the leg-irons, directly contributed to the inmate's
escape.
It is trite to state that the escape of an inmate from
the custody of a maximum security institution such as the
MTWDC is a serious matter. The grievor's'conduct therefore
warrants a form of discipline that is commensurate with that
conduct.
While~the seriousness of an inmate's escape is not to be
disputed, the Board must necessarily assess the degree of
culpability on the part of the grievor. The grievor is being
disciplined not for the escape itself, but for his conduct
which facilitated or contributed to, that escape. The
Employer counsel relied on Re Lee, 764/83 (Samuels); Re Lusis,
579/82 (Verity); and Re Czerniak, 688/85 (Delisle), in support
of his submission that the Board ought to uphold the 15 day
suspension. In ~each of the first two cases the Employer had
discharged the correctional officer as a result of an escape
of an inmate. The Board held in each case that discharge was
an excessive penalty and substituted a 3 month suspension.
In Re Czerniak, the Board upheld a 20 day suspension of a
correctional officer for his conduct that resulted in an
escape.
We have reviewed those awards. In Lee, the Board found
that the officer was at fault in the following ways; He failed
to frisk search the inmate; He failed to maintain visual
contact while the inmate was using the washroom; He seated the
inmate closest to the exit; and he failed to replace the hand-
cuffs on the inmate after he was apprehended, thereby allowing
-him to escgpe again. In Lusis, the officer allowed an ex-
inmate to visit the inmate at the hospital on successive days
and for extended periods, contrary to the .standing orders; He
failed to inform the supervisor of the ex-inmate's visit; he
removed al~ the physical restraints from the inmate; and he
allowed the inmate to go into the washroom without maintaining ·
visual contact. Ih Czerniak the 'officer had identified a
potential escape route during yard duty. He was specifically
advised to pay particular attention to that area. Yet the
officer allowed an inmate to divert his attention for a
considerable period of time, allowing another inmate to
escape.
In our view the degree of culpability attributable to the
grievors in those cases is far greater than the conduct in
question here. Besides, the evidence suggests that the
Employer's concerns about the grievor's conduct could not have
been that significant, if the Employer had serious concerns,
it is reasonable to expect that the investigator would have
been instructed to give this matter a higher priority.
13
Instead the investigation was allowed to drag on for over 5
months. Even after the investigator's report was released,
the Employer took a further six weeks before acting on it.
Most significantly, throughout this period, the grievor's
duties were left unrestricted and included hospital escorts.
Given that evidence, the Employer can hardly contend now that
it had very serious concerns about the grievor's conduct as
a correctional officer.
The grievor has a discipline free record over some. 12
years as a. correctional officer at MTWDC. While there were
differences in' the account .provided by the grievor to
different people, as to how he applied the hand-cuffs, we are
satisfied that he was not being deliberately untruthful. It
is, on the other hand, more likely a result of the grievor's ·
inability to recollect exactly what he did with the hand-
cuffs. During his testimony he stated in retrospect that
since the inmate was able to slip-off the hand-cuffs he "must
'have" put the cuffs on loosely and not dead-locked it. In our
view a 15 day suspension is excessive in all of the
circumstances. We have full confidence that this incident is
an aberration in the record of an otherwise conscientious and
responsible employee. With the lesson he learned from this
experience, together with a shorter period of suspension, he
will be able to resume his career providing good service as
he had done during the 12 years past.
In the result, the. Board substitutes a 5 day suspension
without pay in place of the penalty imposed by the Employer.
Subject to that 5 day suspension, the grievor shall be
compensated for all lost wages and benefits. The Board
remains seized in the event the parties have difficulty
agreeing on the quantum of compensation.
Dated this 16_t4T;. day of Uanua~y , 1991' at Hamilton, Ontario