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HomeMy WebLinkAbout1990-1900.Jones.92-09-10,-'~ ONTARIO EMPLOYES DE LA COURONNE , CROWN EMPL 0 YEES O E L 'ON TA RtO GRIEVANCE COMMISSION DE SETTLEMENT R GLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST, SUITE 2~O0, TORONTO, ONTARIO. M5G IZ~ TELEPHONE/TELEPhOnE: 180, RUE DUNDAS OUE~T, BUREAU 2100, TORONTO (ONTARIO). M5G IZ8 FAC$11'.'IILE/TE[..~COP[E ; (41GJ 32~-1396 1900/90 ZN THE MATTER OF AN ARBITRATTON Under THE CROWN EHPLOYEES COLLECTTVE BARGAINING Before THE GRIEVANCE SETTLEMENT BOARD B~TWBEN OPSEU (Jones) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: R. Verity Vice-Chairperson J. C. Laniel Member M. O'Toole Member FOR THE M. Bevan GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE J. Ravenscroft EMPLOYER Grievance Officer Ministry of Correctional Services HEARING June 17, 1991 March 27, 1992 July 13, 1992 2 DECISION Darren Jones is a Correctional Officer 2 at Metropolitan Toronto West Detention Centre with approximately six years seniority. On September 6, 1990, superintendent R. -D. Phillipson imposed a five day suspension upon the grievor for his involvement in an incident at "Metro West" on June 28, 1990. In that letter, the Superintendent alleged that on 'the day in question Mr. Jones had "used excessive force on an inmate" in circumstances where the "use of force ... was unreasonable and excessive". In a grievance filed, Darren Jones alleges discipline without just cause. The grievor is alleged 'to have viglated so7(1) of Regulation 649 under the Miqistr¥ of Correctional Services A~to The relevant provision of the Regulation reads: 7.-(1) No employee shall use force against an inmate unless force is required in order to, (a) enforce discipline and maintain order within the institution; (b) defend the employee or another employee or inmate from assault; (c) control a rebellious or disturbed inmate; or (d) conduct a search, but where force is used against an inmate, the amount of force used shall be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all other circumstances of the case. 3 The facts in this case are relatively straightforward although 'there are differing versions Qf the incident. On June 28, 1990, the grievor worked the 1:00 p.m. to 11:00 p.m. shift in the male Admitting and Discharge Unit at Metro West. At approximately 1:00 p.m., unit manager Murray Laird called the grievor into his office to.advise that there had been a problem with two inmates that morning. Contrary to normal procedure, the inmates had n6t been changed into street clothes the evening prior to court appearances. The grievor recalled that on the previous evening, neither inmate wished to change into street clothes. ' According to Mr. Laird's evidence, the grievor was "disappointed" and "reacted as though he had been had by the inmates"% Subsequently at approximately 1:10 p.m., the grievor removed inmate "B" from a unit holding tank (Cell #1) and escorted him to a corridor near the property room for a private conversation. The corridor is a narrow passageway four feet in width. Thereafter, many of the facts are in dispute. Inmate "B" testified that he was told by the grievor that he had been given the opportunity to change into street clothes the previous evening. In the inmate's words the grievor stated "you're trying to be a smart ass". The inmate testified that he called the grievor "a liar" on his return to the holding cell. According to the inmate, he was again returned to the corridor where he was accused by the grievor of swearing at him. In his written statement (Exhibit 4), the inmate stated that while standing "face to face ... about 1-1/2 4 feet apart", the grievor hit him in the 'right ear and knocked him to. the ground. However, at the heari, ng, the inmate testified that he was in front of the officer when he was ]lit and that it was "a sucker punch". The inmate denied th. reatening the officer physically and denied that he had used abusive language. Following the incident, the inmate was taken to the strip search area by the grievor,~ searched by another officer .and then placed in segregation. The grievor alleges that he took the imuate into the corridor area adjacent to the property room "to talk'' to him. According to the grievor, he wanted to ensure that.the inmate was aware of the dress procedure for court so that 'the problem would not reoccur. The grievor testified that on the return to the holding cell inmate "B" called the officer "a real fucking asshole" The grievor returned the inmate to the corridor and asked, him to repeat what he had said. After the inmate denied using .~busive language, the grievor recalls that he informed him that he was being placed on "on misconduct". The inmate is alleged 'to have "stepped" or "lunged" towards the grievor saying "you are a real fucking asshole" while raising his right arm in a clenched fist at chin level. The grievor admits hitting the inmate with the fist of his right hand and that it was a direct hit. Initially, in his statement to Investigator McMaster, the grievor stated: "I probably hit him on the left side of the head". At the hearing, the grievor testified he hit the inmate "on the side of the head". In light of the threat posed, the grievor maintains that there was no time to take any alternate action, and that his natural reaction was to gain immediate control of the inmate. Supervisor Murray Laird testified that the grievor immediately reported the incident and state that he wanted the inmate placed in segregation. When asked why, the grievor is alleged to have replied that the inmate Called him "a goof" and "a fucking liar~. In Mr. Laird's words, the grievor appeared "somewhat agitated and "made no mention of the fact that the inmate had been struck". On the way to the segregation unit, inmate "B"-complained to Mr. Laird of blood coming from his right ear. Mr. Laird contacted the health care unit ~_~ereupon the inmate was given appropriate medical attention. The accident/injury report indicates that inmate "B" sustained a "small superficial laceration" (1/2 cm in length) to the right inner ear. Upon his return from segregation, Supervisor Laird called the grievor into his office to enquire if he (the grievor) had hit inmate "B". Mr. Laird recalled that the grievor readily admitted doing so and provided an explanation that Mr. Laird was unable to recall. However, Mr. Laird testified that senior management expressed immediate concern as to the grievor's actions. ' At the hearing, Mr. Laird testified that initially he was unconcerned that the grievor failed to promptly report the use of 6 force against the inmate. He attributed that omission to the grievor's agitated state. However, upon reflection, Mr. Laird concluded that the grievor had d~liberately attempted to mislead him. On July 5, 1990, Clair McMaster was assigned to conduct a Ministry investigation. He subsequently prepared an Investigation Report (Exhibit 4) after taking statements from five persons and reviewing the occurrence reports of .the th~ee officers and the inmate's health care record. In sum, he testified that the grievor used poor judgment in applying unnecessary force and concluded that there were other "methods" the grievor could have used rather than st~king the inmate in the head. The Investigation Report casts doubt on the grievor's version of events. ~owever, in cross- examination, Mr. McMaster acknowledged that it was possible for the inmate to have been hit on the right side of the head. Superintendent Phillipson testified that after meeting with the grievor and his union representative on August 28, 1990, he "seriously questioned whether the use of force was necessary at all or that it occurred the way the g~ievor said it did". The Superintendent was critical of the grievo~'s judgment. In particular, he felt that there was no need to discuss the clothing issue with the inmate, %hat the inmate should not have been removed from the holding cell to a private area without telling another officer, that the grievor hit the inmate in the head when there 7 were other courses of action available, and that he admitted the use Of force only after having been confronted by his supervisor. The Superintendent maintains that he cautioned the grievor personally in October or November 1989 about "the frequency of his use of force" and testified that he shared that concern with the grievor's brother, also a correctional officer at the institution. Mr. Phillipson testified that even on the grievor's version of events, "it doesn't justify striking the inmate and knocking him to the floor". The Superintendent had.serious concerns about the grievor's credibility in this case. In his words: ,,in the circumstances of this incident, I don't believe it was necessary to hit the inmate in the head". At the hearing, the grievor testified that there was no doubt in his mind that the inmate ,'was going to strike me". He acknowledged that he used force against the inmate and agreed that it was a direct hit. When asked in cross-examination whether the proper response should have been to block the punch, the grievor replied that "put in the same predicament again I would do what I did". According to the grievor, he had no time to back away or call for help and that his initial reaction wa~ to gain immediate control of the inmate. The grievor was unable to recall his first conversation with Supervisor Laird and acknowledgedat the hearing that "my adrenalin was flowing" He maintains that he didn't report the use of force earlier because of his concern to get the inmate out of the o Admitting and Discharge area. CQrrectional officer Del Godin was seated at a de~k in the property room at the time of the incident.. His attention was attracted when he heard someone utter the words "you're a fucking liar". According to his evidence, he leaned back in his chair and observed the grievor and inmate "B" some 10 to 15 feet away in the corridor. Mr. Godin observed the inmate raise his right hand "in what appeared to be a fist". He then observed the grievor punch the inmate in the head with his right fist..~As the-~,mate fell to the ground Correctional Officer Godin ran into the hallway to assist the grievor. -By the time he arrived on the scene, the grievor had picked up the inmate and had him in an arm bar. According to Mr. Godin's evidence the altercation happened "instantaneously". The Employer contends that given the grievor's experience as a Correctional Officer that he acted in a totally inappropriate manner. After reviewing the evidence, Ms. Ravenscroft contends that the incident did not occur in the manner described by the grievor. In the alternative, Counsel submits that in the absence of any real threat, the grievor used excessive force in all the circumstances. In support, the Employer cited the following authorities: Farvna v. ~horn¥ [1952] 2 D.L.R. 354 (B.C. C of A); 0PSEU (Fred Cull¥} and Ministry of Health 357/83 (Draper); Russell 9 ThomDson et al and Ministry of Correctional Services 128/78 (Swan); OPSEU (Karl Van't Hullenaar) and Ministry of Correctional Services 555/81 (Jolliffe); and W. G. Gillies and Ministry of Correctional Services 129/77 (Pritchard). The Union maintains that, unlike the inmate's version of events, the grievor's testimony is credible. In particular, the argument was advanced that one punch cannot be characterized as excessive force. Mr. Bevan was critical of the lack of involvement of Superintendent Phillipson in failing to speak with Correctional Officer Godin and, in effect, ignoring his evidence. Mr. Bevan asked the panel to discount the evidence of Superintendent Phillipson as to counselling about.the use of force in the absence of any record of that counselling. ''The thrust of the' Union's evidence was that the grievor had a split second to make a decision and that he used the proper force necessary to defend himself. The Union cited the following authorities: OPSEU (Kulmatyck¥) and Ministry of Correctional Services 418/84 (Verity); OPSEU (Fraser) and Ministry of Correctional Services 1674/89, 1675/89, 1684/89 (Dissanayake); OPSEU (Faler) and Ministry of Correctional Services 218/89 (Fisher); OPSEU (Hyland) and Ministry of Correct~onaI Services 106'2/89 (Ratushny); and T. Jones and Ministry of Correctional Services P/0012/89 (Willes). The incident, quite properly we think, was the subject of a Ministry investigation. Inspector Clair McMaster cast doubt as to the grievor's version of 'events in his Investigation Report (Exhibit 4) where he states under "Findings'" at paragraph 7: It was established~that Mr. Jones and the inmate had been facing each other approximately two to three feet apart. The fact that Mr. Jones struck "B" on the right side of his head with his (Jones') right fist suggests the inmate was turning away, perhaps trying to avoid the blow. Had he been stepping forward at such close range, it seems natural that the blow would have landed on the left side of "B's" head or face. In any event, this obvious fact casts doubt on the version of events with respect to the punch, as put forward by Mr. Jones and the witness Del Godin .... However, in cross-examination Inspector McMaster agreed that on the grievor's version of the incident it was possible for the inmate to have been hit on the right side of the head. Based on the Investigation Report, it is L quite understandable that Superintendent Phillipson would "seriously question" whether the incident occurred as described by the grievous. On the totality of the evidence adduced, we are satisfied that the grievor's account of the incident, corrc,borated as it was in material respects by Correctional Officer Godin, is the more probably account of what transpired. We did not find inmate "B" to be a credible witness. In our view, Mr. Godin who testified in a straightforward manner was a credible witness. ~e accept the grievor's evidence that the inmate used abusive language as alleged. We also accept his evidence that the inmate posed a threat of physical attack. 11 However, despite our finding, in the particular circumstances 'of this case, it is our view that the grievor used poor judgment in a number of respects. The confrontation would appear to have been initiated by the grievor following a discussion some ten minutes earlier between the .grievor and Supervisor Laird. The evidence satisfies us that the grievor was upset about the inmate's request to be changed into street clothes the morning of his Court apPearance when, as the grievor claims, he had rejected that opportunity the previous night. In our view, the timing and location of the subsequent discussion between the grievor and the inmate in a narrow four foot corridor was ill-advised. If indeed he felt compelled to speak to the inmate, the grievor should have discussed any concern at a later date in the presence of a second officer~ In the'particular circumstances of this case, we cannot agree that the use of force was either necessary or reasonable. In our view, in light of the threat posed, the grievor used poor judgment in striking the inmate in the head. The force of the punch was sufficient to knock the inmate to the ground. There were, of course, a number of'alternate actions that the grievor could have taken such as blocking the punch. In the close confinement of a four foot corridor, it is unrealistic to suggest that the grievor could have stepped backwards. However, in addition to blocking the punch, the grievor could have stepped to the side and issued a command. In our view, the grievor's use of force in these 12 circumstances was totally inappropriate and unwarranted. We do not mean to suggest, however, that there may not be circumstances where striking an inmate is a justifiable action by way of self-defence. In our view, this is not such a case° In the result, we find that the grievor used unreasonable and excessive force in the incident with inmate "B" on June 28, 1990 contrary to s.7(1) of Regulation 649 under the Ministry of Correctional Services Act. Is this the appropriate case to modify the penalty imposed under s.19(3) of the Crown EmDlgYees CollectSv9 Barqainin~ Act? The grievor has no previous disciplinary record. Superintendent Phillipson testified that in October or November of 1989 he counselled the grievor on the frequency of his use of force on inmates. The grievor recalls no such conversation. In the absence of any record of previous counselling, we place no weight on any such evidence. It is, however, a matter of some concern to this panel that the grievor persists in his failure to recognize that his actions on the day in question .were in any way inappropriate. Similarly, we are concerned that the grievor failed to make prompt disclosure of the use of force until confronted with that fact by Supervisor Laird. Obviously,'he should have made full disclosure at the earliest possible opportunity. We are not satisfied that there are sufficient reasons to modify the penalty imposed. In our view, the five day suspension imposed by the Employer falls within the range of a reasonable disciplinary 13 response. In the result, this grievance is dismissed. DATED at Brantford, Ontario, this lO=h day of September,. -1992. R. '~.. VE~ZTY, Q-C- - VIC~"C~AZRP~RSON J~ LANiEL - NRNBRR M. 0 ' TOOLE - ME~IBEi~