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HomeMy WebLinkAbout1989-0776.Bisson.90-06-08;.~ ~ ,% ' ~ ONTARIO EMPLOY~'S DE LA COURONNE , : · .,~ !; ,, , , .-. CROWN EMPLOYEES DEL'ONTARIO " ' GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G TZ8 TELEPHONE/Tf~L~PHONE: (416)326-7388 780, RuE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), MSG 1Z8 FACSIMILE/T~L~COPIE : (,116) 326-1396 776/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Bisson) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer - and - BEFORE: B.B. Fisher Vice-Chairperson D. Wintermute Member G. Milley Member FOR THE M. Bevan GRIEVOR: Grievance Officer Ontario Public Service Employees Union FOR THE J. Benedict EMPLOYER: Manager Ministry of Correctional Services BEARINGS: December 15, 1989 April 9, 1990 April 10, 1990 This is a discharge case. The Union admits liability but pleads that the penalty of discharge was too severe. The grievor worked as a Correctional Officer ii at the Ottawa Carleton Detention Centre. On the night in question, August 27, 1989, he was on the shift commencing at 18:45. Part of his job was to perform a shift changeover at 22:45. In order to properly perform this shift changeover, the grievor was supposed to enter the 3A Wing and do a physical count of the inmates and record the count in a log book. Before he could enter the cellblock however, he required a back-up officer to stand by the door. On the night in question the grievor said that he was told by C.O. Lachance to do a physical count in 3 Wing. The grievor asked C.O. Lachance for back-up but was told none was available. Therefore, rather than speaking to the Shift Supervisor, Bill McQueen about obtaining a proper back-up, the grievor simply went up to the window of 3 Wing and counted the inmates. He counted a total of 21 inmates in both wings, which nurhber corresponded with the log book. The grievor admitted that his count through the window could well have been wrong as the inmates were moving around alot. In fact his count was probably wrong, as the evidence shows that at that time an inmate named Michael Sienkiewich was probably lying in the 3 Wing washroom, beaten to a pulp by his fellow inmates. The grievor could not see the washroom from the window of 3 Wing and had he conducted a proper search, he undoubtedly would have found Mr. Sienkiewich. The ex4dence shows that it is impossible to tel1 whether or not Mr. Sienkiewich was dead at the time the grievor failed to perform a proper head count, or if he was alive, whether medical intervention at that time would have saved his life. It is clear from the evidence however that the beating of Mr. Sienkiewich commenced a few hours prior to the grievor's negligent head count. In any event, it is not strictly relevant to determine whether or not the grievor's negligent performance of his duty directly resulted in the inmate's death. There is -2- no doubt that the performance of a proper head count was a key part of the C.O.'s duty and one whose purpose it was to prevent exactly the sort of thing that happened in this case. The Superintendent, Mr. Palmer, indicated that if the grievor had had a clear discipline record at the time, he would have imposed a lesser penalty than discharge. However, the grievor had previously been disciplined on two separate occasions as follows: a) On May 16, 1988, he was disciplined by way of a written reprimand for reading while on yard duty on April 16, 1988, rather than observing the inmates as he was supposed to. This discipline was not grieved. b) On August 25, 1988, he was disciplined by way of a 2 days' suspension for reading while on duty orr July 25, 1988. This discipline was not grieved. In seeking to lessen the penalty, the Union asked this Board to consider the following factors: a) the grievor's seniority is approximately ten years; b) up until the incident of May 16, 1988, the grievor's work record was satisfactory; c) the grievor is 59 years of age and has not been able to ~'. obtain re-employment since his discharge; d) his wife was forced to go out and get a job since his dismissal, however, her general health is quite poor; e) there is no sufficient evidence that the grievor's actions in any way contributed to the inmate's death; f) other people who also failed to perform their duties properly were not disciplined. -3- The last item causes this Board the most concern. There were a number of other people on duty that night who did not properly perform their duties and if they had, the inmate may not have died. First of all, C.O. Lachance was in charge of the 3 Wing prior to the grievor coming on duty. C.O. Lachance failed to do a proper count during his shift, thereby not noticing that Mr. Sienldewich was injured. Mr. Lachance, however, resigned fight after this incident. Mr. Palmer said that had Mr. Lachance not quit, he would have been fired. C.O. Harrison was supposed to conduct a lock-up at 23:00, just after the grievor's negligent count. However, C.O. Harrison was intentionally distracted by one of the inmates who claimed that his hand had been injured by the locking mechanism. In fact the inmate's hand was probably injured while beating Mr. Sienkiewich to death. C.O. Harrison, · with the approval of Shift Supervisor McQueen, took the injured inmate to the clinic rather than complete the lock-up count at that time. If the lock-up had been completed properly then C.O. Harrison would definitely have noticed that Mr. Sienkiewich was missing. When C.O. Harrison returned to 3 Wing about 20 minutes later after having completed the paperwork on the inmate's injury, he should have completed the lock-up count but didn't bother as a regular count was due to be done in about ten to fifteen minutes. In fact, Mr. Sienkiewich was found about ten to fifteen minutes later. C.O. Harrison had a clean discipline record and an exemplary work record. Mr. Harrison was or/ginally given a written repr/mand but this was later reduced to a counselling letter. Nurse Parker attended on the 3 Wing on the night in question prior to the grievor performing his count in order to hand out medications to the inmates. The Standing Orders for the nursing staff indicated that if a patient refuses his medication, he is to tell the nurse directly, and not through a third person. On the night in question, Nurse Parker was coming to give Mr. Sienkiewich his medication when C.O. Lachance told her that Mr. -4- Sienkiewich didn't want his medication. Rather than insisting on seeing the inmate, she accepted C.O. Lachance's word and left the 3 Wing. She claimed that she was unaware of the Standing Order and said that a practice had crept in whereby if the medication was not important, the strict rule was not enforced. Nurse Parker had a commendable record to that date. She was originally given a written reprimand which was later reduced to a counselling letter. Shift Supervisor McQueen failed to properly supervise his staff and make the appropriate log entries in that he knew C.O. Harrison had not properly completed the lock-up, however, he failed to insure that the lock-up was .thru. completed. He received only a letter of counsel. There's no doubt .that the offence committed by the grievor is a serious one, in fact the duty to do a proper count lies at the heart of a C.O. duties. It is not a mere administrative matter as it directly affects the health and wellbeing of the inmates, the staff and, in the case of an undiscovered escape, the public. Furthermore, the past discipline record of the grievor and the culminating event show a serious attitude problem of the gtievor's in that he now seems to have a cavalier attitude towards his work. It strikes this Board that he seems to have forgotten how important these matters of accurate counts and attentiveness are to a C.O. job. On the other hand, the act of the grievor was not intended to do harm, he was simply careless2 We know he is capable of doing better, as his previous nine year record shows. Although in the past he received a two day suspension for an offence, he was allowed to put in extra overtime to make up his loss. This was done with the Superintendent's knowledge. This act of generosity unfortunately takes away whatever value the suspension was supposed to have. The offending employee is supposed to suffer an economic loss for his- -5- misdeeds. In Mr. Bisson's case he simply got two days off and earned back his loss at a later time. This is hardly the sort of thing that would impress upon Mr. Bisson the error of his ways. Mr. Bisson obviously needs something more than a short suspension to bring home to him the serious and quite possible life-threatening consequences of his actions, however, having considered all the relevant factors, a discharge is too severe. This Board is confident and hopeful that Mr. Bisson is capable of bringing his performance back to his old satisfactory level. The grievance is therefore allowed and the following order is to be issued: 1. The gfievor is to be immediately reinstated to his former position. 2. The discharge is to be substituted by a 30 day suspension. 3. The grievor is to be compensated for his loss, however, without the payment of interest. 4. This Board will remain seized of all matters arising from the implementation of this award. DATED at Toronto this 8t:h day of Jrxnb'el990. ~.~- her - Vice Chairperson D. Wintermute - Member George Milley - Member