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HomeMy WebLinkAbout1992-0241.Gonzalez.94-01-19 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ' GRIEVANCE C,OMMISSION DE ' * -SETTLEMENT.' REGLEMENT BOARD. _ ~ DES GRIEFS -- 180 DUNDAS STREET WEST. SUITE 2100. TORONTO, ONTARIO, M5G IZ8 ' 'TELEPHONE/TELEPHONE: (4 ;6) 326-13. 180. RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 FACSIA~ILE~T~:LECOPIE .. (4 16I 326- : - 024i/92 'tN THE NATTER OF ~ ARBITRAT'rON "' Under THE cRowN EMPLOYEES COLLECTIVE .BARGAIN'rNG ACT. -. · '" BeEore ' THE GR'rEVANCE SETTLEMENT BOARD' BETWEEN -., - OPSEU. (Gonzalez) ...... .. _____-- : '-' - and ' . .-- -' The Crown in" Right of Ont'ario (Ministry of Correctional services)i. .. - - ., - BEFORE :- B. Fisher. . viCe-Chairperson ..M. Lyons Member D." Cl:ark ' ' ' Member FOR THE. 'N. Coleman -' ' .UNION '.. counsel ", ' GOwling, Str-athy '& Henderson. ..... . ":" ~_ 'Barristers & Solicitors - --" .... FOR THE J. Benedict - . .~:. EMPLOYER ' i -Manager, -Staff Relations & Compensation :; ...... . . . . Ministry Of Correctional Services .... HEARING November 6, 1992 February i2~'1993 May 6, 1993 This is an.individual health and safety complaint regarding the Procedure to be used on hospital escort duty. The.Grievor is a C.O. at the Toront~ East Detention Centre. He became .a C.O. in July 1989. On March 3, 1992 the Grievor's shift commenced at 7:00 a.m. Upon arriving at the institution, the Grievor was told that his assignment that day was to relieve C.O. Holden~who was on escort duty at 'Scarborough General Hospital looking after an inmate. When~the Grievor arrived at the hospital to relieve 'C.O. Holden, he was asked by C.O. Holden if he had been made aware of the situation. The Grievor replied that he had not.. The Griever then reviewed the log for the night before and discovered that the inmate had at 1:30 a.m. complained that his leg irons were hurting him and asked Ghat they be removed. Ofcourse ~C~O. Holden politely declined this request. At 4:3'7 a.m. the inmate awoke, startedaCting irrationally, and tried to move the bed, which of course-he-could not because he was strapped to the bed with leg irons.' At 7:00.the inmate again asked for the security restraints to ~be removed, which request was refused. The inmate was in a ward-room with three other non-inmate patients. The C.O~ 0n duty sat at a desk located at the foot of the inmates bed. " --. The inmate had one'leg strapped~to'the 'bed with leg irons. There were also handcuffs available but not in use at that time. The Grievor, and. C.02 Hoiden decided~'to-conduct a strip search of the inmate and the surrounding area. In the course of this search theyfound that the inmate had hidden a small piece of a pop can, about the size of a loonie, containing sharp edges. C.O. Holden reported this to the i~stitution and wrote up an Occurrence'Report as this piece of metal was considered to be contraband. As C.O. Holden was about ~o leave {he hospital, the Grievor asked him to remain .until he had a chance to ask Management. if C.O. Holden ~could stay on-duty so that there'Would be-two C.O.'s at all .times in the room. At 7':20 a.m. the Griever called Sgto GiswaldO, his supervisor. He explained the inmates bizarre behaviour and requested a second officer to assist him. Sgt. Giswaldo said that no one was available to help the Grievor and that C.O. Holden was to return to the institution. The Grievor expreSsed~his ~concern over this-decisi0n~to~whiCh Sgt. Gis~aldo saidhe would l°ok into it. 'After C.O. 'Holden'l~ft, the inmate was bound to~.the bed by means'of a leg iron attaching one legto-the bed and handcuffs attaching one arm to the 'bed.~ During this time-the Grievor~ continued to~try to free himself from the restraints and verbally threatened both the Grievor and the other patients in the room. 'At 8:15 a.m., 'the Griev°r now the only C~O~. in the-room, again called the institution and requested baCk up from Acting Shift supervisor Buhagiar? ~No back up was provided. ~ .At 10:05 the Grievor again called the institution requesting back up. At 10:35 the doctor cleared the inmate~to be released from .the hospital. At 10:'37 the Grievor called the institution and requested back up to assist in transporting the 'inmate back to the institution. Sgt. Giswaldo said he would'be, sending backup. At 11:30 C.O.'-Hogg- arrived to assist in the transfer. ~The Grievor was .upset because he'thought the institution would Send two C.O~'s, a Sergeant and additional restraints~ but instead they sent only one C.0. with no additional, restraints. C.O~. Hogg and the Grievor'proceededto dress the ~nmate in prison garb, hand,Cuffed ~his arms behind his back and attached leg' irons to'~both his feet. - As there was no institutional van at the hospital (as C.O. Holden had.used it to return to' the institutiOn) they had to'use.a' public taxi. The inmate became difficult"when they tried to get him into the taXi but 'finally,~ with much pushing and pulling, they succeeded in-getting~'him..into the taxi..- - The Cab trip took about 10.minutes. That was the end. of the. incident. The Grievor Claimed as he was so emotionally upset about the incident that subsequently he took about 4.5 sick daYS, for which he now Seeks compensation. The Grievor complained that reasonable precautiohs Were not taken' for his heal-th'and safety in four ways: (~1) The Grievor was not notified ahead of time'of ~he problems which existed.With the inmate~. 'By the time-.the Grievor arrived at 7:00 a.m. the only'activity reported on the log. was that~the inmate had complained that his leg irons were hurting him; .that he.had asked for.them to be removed, that he was behaving irrationally~and that he had tried to move the bed. The'Grievor said that had he known this before going to the hospital he would have taken additionatl restraints.. In fact the inmatealready had one leg strapped tO the bed and there were handcuffs available to attach one arm~to the bed. It strikes~us, that additional restraints (presumably another set of leg irons'and handcuffs) would not have accomplished anything more than-the restraints which were available in the room. The supervisory staff at the institution were aware of the inmates behaviour as C.O. Holden had called the institution at 5:00 a.m. to report on the inmates behaviour. However we do not find that the failure of Management to advise the Grievor ahead of time of the inmates behaviour resulted in any significant additional risk to the Grievor as the bringing of- additional restraints by the Grievor would not have significantly reduced the risk factor the Griever would face. (2) The Grievor alleged that the Employer should have provided a double escort for the whole time he was with the inmate. However at all times in which the inmate was free of his restraints (ie. during the strip search and transportation to the institution ) there were two C.O.'s.- The only time the Grievo~ was alone was from 7:20 a.m. to 11:30 a.m. During this whole time.~the irumate was shackled to the bed by means of one arm hand-cuffed to the bed and one leg'attached to the bed. It is difficult to perceive how the Griever was. at any greater risk because he was alone with the inmate as comparedto if another C.O. was present. Of course the inmate-could become verbally abusive, and threatening but how could that possibly result in physical injury to the Grievor? The inmate could struggle and strain to get out of.his restraints, but no evidence was presented before us which would lead us'to believe that he had any chance of so-freeing.himself. We have no doubt that the Grievor may.have had a deep felt suDjective fear of the situatiOn, but the test under the Collectiue Agreement is an objective One. I-have no doubt that if I were in that situation, I ~would be fearful, but I am not a trained C.O. In fact I could safely say that I would probably have a deep fear of performing almost any of the duties of a C.O. (except perhaps testifying at a G.S.B. Hearing). However 'the job of a C.O. is extremely dangerous, and as such, the health and safety Provisions in the Collective'Agreement must be judged in that'context. We are not satisfied that in the situation on March 3, 1992 that the Employer's refusal to provide a double escort was a breach of the Collective Agreement. (3) The Grievor alleged that the Employer failed to properly investigate and analyze the Security risk. The evidence discloses that'Management was aware of the relevant facts and made a'decision that a backup officer was not needed. W~ find in the circumstances of this case that the decision'was'a reasonable one in terms of health and safetY-issues. (4) The Grievor alleges that theuse of a public~axi instead of an institutional van constituted an undue risk to himself. Standing'OrderN0. 20 on Community Escort procedure States in paragraph 20.5: "The 'institution vehicle(s) will normally-be used in the transportation of inmates to and from community hospitals or other appointments. Public.transportation (taxis) should be avoided wherever~possible." - Thus the Empl°yer~s own pOlicy restricts the use of taxis to those situations where it is not possible to provide an institutional vehicle. Neither party presented anyevidence as .to the availability' Of an institUti°nal~vehicle at 11:30 a.m. on March-3, 1992. -As the onus. is on the .union'to prove a violation of the Collective Agreement, it..was incumbent upon it.t° lead evidence to show that- a van was available at that time 'for the- '.use Of the Grievor. As.lno SUch evidence was called, we~¢annot find that there was a Violation of the Collective Agreement. The grievance is-.theref°re dismissed. DATED at Toronto thisl9thday of January?~994 . c~erson' - -. D. Clark Member Ly -~emb r / ~. OhS, e