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HomeMy WebLinkAbout2014-2613.Langford et al.17-04-26 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2014-2613, 2014-2614, 2014-2615, 2015-2616, 2014-2617, 2014-2637, 2014-2638 UNION#2014-0108-0046, 2014-0108-0047, 2014-0108-0048, 2014-0108-0049, 2014-0108-0050, 2014-0108-0053, 2014-0108-0054 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Langford et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Barry Stephens Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel HEARING November 21, December 23, 2014; July 9, 10, 16, 17, October 29, December 2, 9, 16, 17, 2015; February 1, 22, March 7, 21, 24, April 5, 14, 19, 21, May 25, June 20, 2016. - 2 - Decision Introduction and Facts [1] This grievance involves a tragic incident at the Elgin-Middlesex Detention Centre (EMDC). On agreement of the parties, the inmates involved shall be identified by initial only. [2] On the morning of November 1, 2013 an inmate, who shall be referred to in this decision as K, was found dead in the shower area of Unit 6 Left (6L) at the jail. A subsequent review of surveillance video of the unit indicated that K had been beaten to death by his cellmate, G, during the night. [3] The grievors are all Correctional Officers (CO's) who were on duty around the time of the event. They have all been disciplined for various failures in the performance of their duties on and around the night in question. Five of the CO’s have been terminated, while two have received written reprimands. They have all filed grievances against the discipline imposed, and it is my role to review the employer’s decisions with respect to each employee and determine whether, in each case, there was just cause for discipline. [4] Most of the facts are not in dispute, indeed much of what took place was captured on security video, and may be stated briefly here. It should be noted that the video in question is an automated system that captures video only (no audio) at various locations throughout the institution. The - 3 - video is not monitored live, but is intended to assist, after the fact, with the investigation of incidents in the institution, and for other uses, such as oversight of the quality of security tours. What follows is a summary of events. I have set out the details of the evidence with respect to the allegations in the sections of the decision dealing with each individual grievor. [5] K was an inmate who was housed in Unit 6L. He shared a cell with G. The two were involved in an incident on the unit during the day, when G placed K in a chokehold. No action was taken against G with respect to the chokehold. Later that day, when the inmates were back in their cells, the nurse was doing her rounds dispensing medications. She paused at Cell 3, where G and K were held, and advised the CO accompanying her that she would not dispense any medication at Cell 3. Her decision was motivated by the fact that she had concluded there was a smell of alcohol coming from the cell. The video evidence shows Inmate G apparently drinking and smoking at various points during the evening, and at least one CO was aware of a “wick”, (a slow burning fuse usually made up of twisted paper), in the cell. [6] At approximately 19:56, on the video taken of Unit 6L, one can see the first evidence of the assault on K. Although the view is somewhat obscured, in that the assault is seen through the cell door window, there is no dispute between the parties about this disturbing aspect of the - 4 - evidence. The video evidence of the assault continues for some time, with the last evidence occurring at around 20:53. [7] Between the last evidence of the assault, and approximately 09:50 on November 1, the video shows CO's conducting regular security rounds. During some rounds, G is standing at the window of Cell 3. At other times, the nighttime lighting in Cell 3 appears to have been dimmed. At approximately 07:13, a CO went through the unit opening the cell tray slots, so that two inmates could serve breakfast to those housed in Unit 6L. Shortly thereafter, a CO went through and opened the cell doors on the unit to let the inmates out, and the morning cleanup commenced. At 08:16, G can be seen on the video dragging K’s body wrapped in sheets from Cell 3, across the unit, and into the shower area, which is outside the view of the video camera. G, as well as other inmates, then engaged in various activities that appear to be attempts to clean up and dispose of evidence related to the assault and beating of K. Nothing of a notable nature happened on the unit for some time thereafter, until approximately 09:50 when a CO, conducting a regular security round, discovered K’s body in the shower area. Employer General Submissions [8] The employer began its submissions by laying out several general principles and facts that it argued applied to all grievors, and it is best to - 5 - set these out before considering the specific allegations against each of the employees. [9] The employer submitted that the terminations should all be upheld given that the grievors failed to perform many fundamental and core requirements of their jobs. In addition, the employer asserted that the grievors refused to take meaningful responsibility or accountability for their actions even though K was beaten to death while in custody and his body was not discovered until many hours after he was first assaulted. [10] The employer argued that the grievors were peace officers, and were public servants paid to perform the fundamental responsibilities of Correctional Officers, which is to exercise care, custody and control of offenders. CO's are responsible to take care of inmates, like K, who are dependant on the province for everything, including their well-being and survival. The employer submitted that the grievors did not take care of the inmates they were responsible for and that, at a fundamental and basic level, they failed to carry out key tasks. The employer also submitted that it was “extraordinary” that, when faced with the knowledge of the terrible way in which K was killed, the grievors did not accept responsibility, but in effect asserted that they were not to blame because they were simply performing their jobs in the manner to which they had become accustomed. This amounted to an argument that the employer was to blame because the employer had failed to catch and punish them in the - 6 - past for failing to perform their duties appropriately. Such a response, the employer argued, was offensive to basic notions of workplace accountability and expectations placed on public servants. [11] The employer alleged that not only did the grievors fail to carry out their fundamental responsibilities, they behaved in a manner that any rational person, let alone a trained Correctional Officer, would have known was dangerous and likely to place their lives and the lives of inmates at risk. Their failures were so obvious, it would be reasonable to conclude that they would have known that what they did was wrong and unacceptable. In addition, the employer argued that the failure to accept responsibility and the “complete lack of remorse” on the part of the grievors renders each of them unfit for a return to the workplace. The grievors decided to blame others, including the employer, rather than accepting their own responsibility, thus depriving themselves of the chance to be reinstated and reintegrated into the workplace. [12] The employer also asserted that the outcome arising from the misconduct is an exacerbating factor in considering appropriate discipline, and where the consequences are so terrible, the effect is to wholly erode any basis for interfering with the terminations. In addition, the employer submitted that deterrence was an important factor, and that where employees engage in unsafe behaviour that results in the worst possible outcome, - 7 - there is a compelling and overwhelming necessity for discipline to serve as a deterrence. [13] The employer argued that all the grievors violated specific employer policies on the night in question that they are supposed to follow. The policies are intended to remove ambiguity and the ability of the individual employees to claim he or she was not aware of expectations in specific circumstances. The employer has a right to expect that these policies will be followed, particularly where the issue is safety. All grievors confirmed they were aware of the policies, as they were required to be. Even if they were not aware, the grievors were personally responsible for any failure on their part to fully familiarize themselves with those policies. It was not acceptable for the grievors to allege that the employer was at fault for allowing them to breach the policies, essentially blaming the employer for allowing them to be bad employees. [14] The employer characterized the union’s defence against the breach of policies as an argument of “condonation” or “differential discipline”. The employer submitted that these concepts do not assist the grievors in circumstances where the employer cannot be said to have been aware of all the material facts. In addition, the employees must demonstrate that they believed their actions were not problematic. In other words, the fact that an employee may be able to escape detection and the consequences of misconduct cannot be the foundation of condonation. - 8 - [15] The employer argued that the consequence of misconduct is a significant factor, particularly where health and safety is concerned. Thus, no case for condonation could be made out unless the union could show that the employer led the grievors to believe that they would not be disciplined if they failed to do their jobs in such a way as to lead to a fatality. Obviously, the employer was unaware of the full extent of the misconduct in question and there is no basis to believe that the grievors thought they could so fundamentally fail in the performance of their duties as to escape any discipline, particularly where the consequences were so serious. [16] In this regard, the employer gave as a specific example the failure of Langford and Lonsbary, who both had knowledge of the possibility of “brew”, or alcohol, in the Cell 3. The union did not provide any evidence that other employees with similar knowledge of a dangerous contraband such as brew would have engaged in the similar behaviour such as failing to investigate and failing to conduct proper and timely tours of the unit. No case of condonation or differential discipline could be made out on these facts, the employer submitted. [17] Ultimately, the employer argued that the written policies did not matter given the grievors’ failure to perform their jobs at a basic and fundamental level, but rather carrying out their duties in a manner that was dangerous and contrary to common sense. It did not matter that the employees - 9 - performed their jobs in the way they “always had.” Quite apart from their obligation to follow the policies, their fundamental role was to protect the health and safety of inmates under their care. [18] This was particularly the case with respect to the concept of viewing a “live body” while conducting rounds. The employer argued that it was required that CO's make this determination on all tours, but it is particularly important where there are “markers” that indicate possible trouble. In this case, there were three different markers, i.e. the chokehold incident, the presence of a wick and contraband smoking substances on the unit, as well as evidence of alcohol in Cell 3. These circumstances did not require any policy, because common sense would indicate that extra care should be taken to ensure all was in order on the unit given the associated risks arising from each of the three markers. Instead, the employer argued, CO's closed themselves off in the office while making lengthy phone calls, and failed to properly supervise inmates during morning cleanup. The employer asserted that the facts demonstrate that the grievors understood their actions were incompatible with their responsibilities and that termination was warranted in all cases. [19] The employer relied on the following authorities: R. v. Sammy, [2004] O.J. 1850 (Ont. Ct. J.); R. v. Rosa, [2011] O.J. 3147 (Ont. Ct. J.); Central North Correctional Centre, [2006] O.L.A.A. 146 (Knopf); Correctional Service of Canada, [2012] C.P.S.L.R.B. 5 (Katkin); Treasury Board,[1982] C.P.S.S.R.B. 119 (Falardeau-Ramsay); Treasury Board, [1979] C.P.S.S.R.B. 26 - 10 - (Garant); MCSCS (Beltrano et al.), [2008] O.G.S.B.A. 143 (Petryshen); MCSCS (Bellamy/Brown), (Unreported, 2011, Petryshen, GSB 2009-2053 et al.); Purolator Courier (2007), 166 L.A.C. (4th) 54, 91 C.L.A.S. 290 (Randall); City of Calgary, [2014] CarswellAlta 583 (Casey); OPG (RF), [2014] O.L.A.A. 292 (Albertyn); Sandvik Materials Technology (Jocque), [2010] O.L.A.A. 603 (McLaren); Johnson Controls, [2008] O.L.A.A. 653 (Haefling); OC Transpo and ATU (Burt) (2006), 165 L.A.C. (4th )255,91 C.L.A.S. 154 (Starkman); ATU v. OC Transpo and David Starkman, [2007] O.J. 3780 (Ont. Div. Ct.); Great Atlantic & Pacific Co. of Canada, [1992] O.L.A.A. 83 (Craven); Liquor Control Board of Ontario, (Unreported, 2003, Abramsky, GSB 2003-0710); MCSCS (Caron), [2016], O.G.S.B.A. 20 (Watters); City of Windsor (L’Esperence), [2013] O.L.A.A. 236 (Goodfellow); CN Railway (Day), [2013] C.L.A.D 251 (Monteith); Garda (Sekhon),[2013] C.L.A.D. 28 (Keller); Province of BC (Grierson/McMartin), [2010] B.C.C.A.A.A. 54 (Steeves); MCSCS (Collin), [2007], O.G.S.B.A. 96 (Harris); MCSCS, (Unreported, 2012, Briggs, GSB 2010-0606); Liquor Control Board of Ontario, (Unreported, 2000, Abramsky, GSB 2033/97 et al.); MCSCS (Gillis et al.), (Unreported, 2008, Abramsky, GSB 2003- 1520 et al.); Nova Scotia Public Service Commission, [2005] CarswellNS 717 (Veniot); Sheridan College (Rowe), [2010] O.L.A.A. 632 (Bendel); Toronto Harbour Commissioners, [1992] O.L.A.A. 127 (McLaren); CBC, [1979] C.L.A.D. 19 (Shime); Ontario Jockey Club (Follett), [1997] O.L.A.A. 4 (Ray); Du Pont Canada Inc., [1983] CarswellOnt 2409 (Swan); Canstar Sports Group Inc., [1994] Carswell Ont 6599 (Bendel); Ontario Engineered Suspensions Ltd., [2005] O.L.A.A. 543 (Kennedy); Transwestern Express Ltd., (Michaud et al.), [1994] CarswellNat 3971 (MacDowell); Canada Post (Clisby), [1994] C.L.A.D. 1247 (Bass); BC Government Personnel Services Division (Labinsky), [1990] CarswellBC 2483 (Ladner); MCSCS (Gronski), (Unreported, 2015, O’Neill, PSGB#P- 2012-4661); Ministry of Natural Resources (Wickett et al.), [2005] O.G.S.B.A. 93 (Petryshen); City of Hamilton, [2015] O.L.A.A. 153 (Slotnick); MCSCS (Bijowski), [2012] O.G.S.B.A. 167 (Dissanayake); MCSCS (Unreported, 2002, Herlich, GSB 0670/01); Corner Brook Pulp and Paper Ltd., (Stokes), [2013] N.L.L.A.A. 13 (Oakley); MCSCS (Zolnierczyk) (Unreported, 2011, GSB 2005-0823). Union General Submissions [20] The union’s primary submission was that there should be no terminations imposed on any of the grievors and that, given the unique facts of this case, there should be no discipline imposed. In the alternative, the union - 11 - argued that I should exercise my discretion to reduce the penalties and substitute periods of suspension for the terminations. The union also submitted that this was not a case that warranted the “exceptional and rarely used” remedy of the pay-in-lieu of reinstatement. [21] The union argued that the core of the employer’s case was that the Ministry has promulgated written policies, and the grievors did not follow those policies, so they should be terminated. The problem with the employer’s reasoning is that the evidence demonstrated conclusively that the policies at issue had been universally ignored for decades at EMDC, with the awareness of managers at all levels, during the tenure of several superintendents. The only witness to testify otherwise was the current Superintendent, Dave Wilson, who by his own evidence had no direct knowledge of the practices at EMDC prior to October 31, 2013. He also stated in his evidence that he did not conduct any independent investigation into the union’s information with respect to practices at the institution. The grievors and the union attempted to explain these past practices throughout the investigation and the grievance process, but the employer’s reaction was to characterize such information as evidence that the grievors do not accept responsibility and were seeking to shift the blame to the employer. The grievors and the union were not trying to shift blame, the union argued, but simply trying to explain the facts and context relevant to the events of October 31, 2013. The union asserted that, had the employer considered these practices properly, it would have been - 12 - clear that what the grievors and the union were saying was true, and that practices at EMDC had deviated from Ministry policies for some time. [22] Given this background, the union asserted it would be the height of injustice and unfairness to uphold the terminations. It would amount to singling out these employees for the ultimate labour relations sanction for actions that had been openly performed in the same way by employees for decades with full knowledge of all managers. Thus, with respect to most, if not all, of the reasons for terminations listed by the employer, the grievors’ actions have been shown to be consistent with practices in the institution rather than being in contravention of some proper practice or policy. This was confirmed by the evidence. When witnesses were asked about whether they were surprised by the findings of the Ministry’s internal investigation with respect to the how practice at EMDC deviated from written policy, they overwhelming replied that they were not. They were oriented to the workplace in accordance with those practices, and they continued to work that way throughout their time at EMDC. [23] The video and electronic evidence produced by the employer also confirmed these findings. Given that detailed automated reports of rounds are recorded and reviewed by the Security Manager, it was clear that management was aware of the deviations from the policies. Yet, prior to the events on October 31, 2013, the employer had not disciplined any employee for failure to adhere to the policies. - 13 - [24] The union pointed out, for example, that the shift changeover policy was not followed, and that shift change certificates were routinely not submitted at EMDC. The union’s review of the institutional records for the period from October 25 to 31, 2013, including the employer’s investigation report, indicated that few certificates were submitted. Thus, the manner in which the grievors carried out their duties was typical of the practices across the institution. And even in those circumstances where certificates were submitted, they were typically not properly completed, because it was also the practice at EMDC for the outgoing and incoming shifts to meet at the elevators, meaning no shift change tours were conducted. Again, there was no evidence of any other employees being disciplined for failing to submit shift change certificates or failing to conduct shift change tours during the many years when this was the prevailing practice at EMDC. [25] Similarly, log book practices at EMDC have not adhered to policy, and this was the case whether the entries were made by CO's or by managerial OM16’s. It was also the common practice that security tours were conducted without a back-up always positioned in the “cage” (as detailed below), another “breach” for which the grievors were disciplined. [26] The union submitted, as a general principle, that there were practices for which the grievors were disciplined that were not instances of specific - 14 - misconduct by them but symptomatic of systemic practices that were well known in the institution. There was no discipline issued to other employees with respect to these practices, which was evidence that the employer condoned, encouraged or was indifferent about adherence to policy in many areas. The union argued that the rule in Re KVP (cited below) requires that employer policies be clearly mandated and equally enforced. The employer’s failure to consistently and equally enforce policies leads to a form of condonation, which bars discipline against individual employees. It would not be fair, the union argued, for the employer to fail to enforce its policies, and then to single out the grievors for discipline for doing what they, and all other employees, have done for years. The union submitted that it would be logical and reasonable to conclude that the employer had for many years failed to enforce its policies at EMDC with respect to logbooks, the way security tours are conducted, and shift changeovers, to cite three major examples. Thus, the union argued, the practice in the workplace is an appropriate and complete answer to many of the key allegations listed in the termination letters. [27] The union also took issue with the employer’s repeated assertion that the grievors were dishonest, expressed no remorse, or attempted to shift blame in their testimony. The union asserted that the grievors gave their evidence about how the institution has been run over a period many years, and their evidence was consistent with other witnesses, including - 15 - the employer witnesses. It is not deflection of responsibility to rely on these facts, and the grievors have a right to explain the full context of the workplace to ensure it is given due weight in this process. [28] The union relied on the following authorities: Wm Scott & Company, [1976] CarswellBC 518 (Weiler); Steel Equipment Co. Ltd. (1964), L.A.C. 14 (Reville); Ministry of Natural Resources (Wickett et al.), [2005] O.G.S.B.A. 93 (Petryshen); City of Kingston (Teeple), [2015] CarswellOnt 11530 (Starkman); KVP Co. Ltd., [1965] CarswellOnt 618 (Wren et al.); Dominion Stores, [1961] Carswell Ont 307 (Reville et al.); Federated Co-operatives Association Ltd., (Pawluk), [2004] CarswellSask 471 (Priel); Galco Food Products Ltd., [1974] CarswellOnt 1456 (Beatty et al.); Canada Malting Co. Ltd., [2015] CarswellAlta 1382 (Sims); 7:4414 - Discrimination (Brown and Beatty); General Tire Canada Ltd., [1990] CarswellOnt 4135 (Marcotte); Goodyear Canada Inc. (Magulewski), [1977] CarswellOnt 683 (Burkett); Purolator Inc. (Smith), [2015] CarswellNat 5537 (McEwen); Cooney Haulage, [1987] CarswellNat 1644 (Barclay et al.); Smithrite Disposal Ltd., [1978] CarswellBC 765 (Bird); Tentant Hotline (Peters/ Gittens), [1983] CarswellOnt 2389 (MacDowell); MCSCS, [2005] CarswellOnt 3504 (Herlich); Ministry of Finance, [2013] CarswellOnt 17437 (Herlich); MCSCS (Maude), (Unreported, 2016, Petryshen, GSB 2014- 3306 et al). GENERAL FINDINGS [29] There were a number of issues that were common to more than one individual grievor in this case. Rather than refer to these issues repeatedly throughout this decision, I have detailed my findings with respect to each issue below, and then I reference the specific General Findings as they relate to the allegations against each grievor. Most of - 16 - these finding relate to allegations and employer policies, although one deals with remedial issues and the other a prior grievance settlement. [30] As outlined above, much of the employer’s case and evidence was founded on allegations that each of the grievors had breached various written policies. The employer argued that the employees were attempting to avoid responsibility for their actions by stating that they had performed their jobs in the same manner as they had in the past. The employer alleged that managers were not aware of the all the essential facts, and that the employees were attempting to rely on the fact that they had never been caught and punished for their past breaches of the written rules. [31] As will be seen below, I have concluded that the facts do not support the employer’s submission. The employer’s argument would be persuasive if the employees had hidden their past ‘breaches’ of written policy. That is not what happened. I have concluded that most of the relevant practices at the institution have gone on for years, if not decades, and they were open and obvious. This is not a case where employees were skirting the rules when no one was looking. As will be seen, for a number of reasons there can be no question that managers were aware of the practices at EMDC that deviated from written policy, yet no disciplinary action was taken. In such circumstances, employees had a right to expect that they would not be subject to discipline for performing their work in accordance - 17 - with accepted practices. Put another way, it would be unfair for the employer to run the institution in a certain way, and then to suddenly discipline employees for following the accepted and condoned methods of operation. The details of this element of the case are set out below. [32] It appears to be the case that the policies were followed more closely at other institutions. However, the enforcement of a policy in Toronto or Ottawa does not mean the same policy can be enforced in London without consideration of the context in London. This is so even where the policy is in writing and employees are given standardized training about the policy. The CO’s at EMDC report to and works under the direction of the managers at that location. The managers at EMDC have the ostensible authority to vary compliance with Ministry policies, and the employees have a right to rely on any such deviations from policy at EMDC to the extent that managers have approved or condoned such behaviour, and where that the behaviour in question is not prima facie dangerous or illegal. [33] The general findings cover the following issues: 1) Timing of Tours 2) Tours during Day 3) Presence of Officer in Sally Port/Cage 4) Shift Changeover 5) Use of the Diester Recording System - 18 - 6) Inspection of Equipment 7) Covered Lights in Cells 8) Use of Flashlights 9) Logbooks 10) Leaving before End of Shift 11) Quality of Security Tours 12) Payment-in-Lieu of Reinstatement 13) May 2006 Agreement 1. Timing of Tours [34] There was considerable evidence adduced at the hearing with respect to both the tour policy and the practice at EMDC. The policy stipulates there should security tours conducted “…at least twice each hour at staggered intervals no longer than 30 minutes apart.” Some of the grievors were disciplined for a failure to conform to this policy. Lonsbary, for example, was disciplined, in part, for tours that were between 32 and 35 minutes apart. [35] Discipline would be reasonable if the employer had enforced the policy as written. However, that is not how tours were conducted at EMDC. Staff conducted tours, in general, under the understanding that there were to be two tours each hour at staggered times of approximately 30 minutes. This is not consistent with the policy, but the practice was widespread and longstanding. In addition, the evidence shows that when tours were - 19 - performed, they were typically identified in the logbook as having occurred on the hour and the half-hour, e.g. the “8 p.m. tour” or the “8:30 p.m. tour”, although they were conducted, as I have indicated, at staggered times. Such entries were not, of course, chronologically accurate, but they reflected the practice and understanding of CO’s at EMDC about when tours were to be conducted and how they were to be documented. [36] In addition, there was considerable evidence, both by witnesses and in the form of documentation such as logbooks and Diester records, to demonstrate that the practice at the institution included that there would be no tours performed at certain times. For example, it was rare that security rounds were completed between 8 and 9 p.m., or during the morning wakeup and cleanup periods. The logic behind this practice appears to have been that during such periods the CO’s were busy in the units performing routine tasks, and it would be disruptive and redundant to conduct formal tours at such times. I am not in a position to assess whether this ‘logic’ represents best or even good practice in a jail, but there is no question as to how EMDC was managed. [37] The varied practices with respect to tours have been in place for years, if not decades. During that time, managers have reviewed and approved logbooks and automatically generated reports, and would have personally observed the behaviour of CO's during tours. I was not provided any evidence that employees were counselled or disciplined with respect to - 20 - the timing of tours, or for failing to conduct tours with the frequency stipulated in the policy, or any of the other practices that departed from the written policies. [38] The employer has the right to establish written workplace policies, so long as such policies do not conflict with the collective agreement. However, before an employer can discipline an employee for a violation of a policy, it must be clear that the policy is consistently enforced. This is obvious and trite labour relations law, and it is also common sense. It simply would not be fair for an employer to knowingly accept or ignore behaviour by some employees in breach of a written policy, and then to single out and discipline other employees for breaching the policy. If implementation of a written policy has lapsed, the employer is required to give a warning to all employees that the policy will once again be enforced and that breaches may lead to discipline. These principles are set out in the frequently cited decision in Re KVP (1965), 16 LAC 73 (Robinson, C.C.J.). One of the guidelines set out in that decision is that it would not be appropriate to uphold discipline against an employee for a failure to adhere to a policy that has not been “consistently enforced” by the employer. [39] Thus, any such discipline for timing of tours is rescinded, unless I have found otherwise with respect to specific circumstances involving individual grievors. - 21 - 2. Tours during Day [40] The evidence of the union witnesses is that tours were not routinely performed during the day shifts, particularly around meal periods, which included also the morning breakfast period. Smith, for example, testified that tours were not conducted during the breakfast/cleanup period in the morning because of the activity in the unit at the time and the fact that the CO's are in the area and engaged in different duties. Guylee testified that tours were typically not noted in the logbooks during the day, but only inmate movements, such as for court appearances or medical appointments. The evidence from the union witnesses was that this had been the practice at EMDC for years. Employer witnesses testified as to the meaning of the written polices, practices at other institutions and the practices of some at EMDC, but I have concluded that the employer evidence did not undermine the union’s main assertion with respect to security tours during the day shift. Any discipline for failing to conduct tours during such periods is hereby rescinded, unless otherwise indicated with respect to an individual grievor. 3. Presence of Officer in Sally Port/Cage [41] Grievors were disciplined for failing to ensure that there was an outside officer present in the sally port or cage throughout each security tour. [42] There was evidence from Smith and other witnesses that the practice at EMDC regarding the sally port was that the support person would be in - 22 - the sally port as soon as possible on most occasions, but that this did not happen all the time nor was it always immediate. The layout of the units made it difficult to let the touring officer or officers into the unit and then make it to the sally port without being out of sight for a brief period. In addition, it was not unusual for the backup officer to be nearby and available in the Common Room or unit office, rather than standing in the cage. [43] Guylee gave evidence about a fight that broke out on a unit in 2012 when he was doing a tour of the unit and no one was at the cage. He testified that neither he nor his fellow officer were disciplined or counselled for failing to have a backup officer at the cage. There is, in addition, video evidence of supervisors conducting tours in a like manner, and the evidence of the Deputy Superintendent Glenn confirmed that the layout of the units renders it difficult to keep eyes on the inside officer at all times during security tours. [44] I have concluded that the evidence confirms that the employer condoned a practice at EMDC permitting employees to conduct rounds without a backup at the cage at all times, so long as the backup officer was close enough to both monitor the situation and respond if necessary. I also accept the evidence of Smith, and others, that although this practice did not adhere strictly to Ministry guidelines, it was considered safe and acceptable by those conducting the tours. - 23 - [45] I conclude on the evidence that the employer was aware that CO's were not always in the cages during tours of units, and that strict adherence appears to not have been enforced for practical reasons. Again, I am not finding that the practice that has developed is the best practice, I am finding that it had been in place and accepted by the employer. I also accept that CO’s genuinely concluded that the condoned practice was safe, so I do not find that the practice was inherently unreasonable, defiant or mischievous. Given the circumstances, I do not conclude that the grievors intended to deliberately violate a policy or perform an act they knew to be unsafe. The employer is, of course, free to implement a stricter policy, but I find management did not do so with respect to the presence of CO's in the cage during tours. Thus, any discipline for failing to conduct tours with an officer present in the cage at all times is rescinded, unless otherwise indicated with respect to an individual grievor. 4. Shift Changeover [46] Several grievors were charged with various breaches related to the non- performance of the shift changeover process, as set out in the Shift Change-over Certificate policy. The allegations included failure to perform a shift changeover tour and count, and the failure to complete a shift changeover certificate. - 24 - [47] The Ministry policy calls for the employees of incoming and outgoing shifts to conduct a security tour and count together before handing over responsibility for a unit at the jail. The two shifts are required to sign a certificate detailing the results of the shift changeover tour. The certificate is then to be collected by managers and, ultimately, given to the Security Manager for review and filing. [48] I am satisfied on the evidence that the shift changeover process was not carried out with any regularity at EMDC. Although estimates varied as to how often a certificate was generated at shift changeover, the union witnesses testified that they had never or seldom completed or seen another CO complete such a form. Moreover, even in those cases where a certificate was completed, it was done, at least sometimes, without a proper tour having been conducted. The employees at EMDC had a practice of meeting the incoming shift at the elevator, handing off the keys to those coming in, exchanging some information, and then the outgoing shift would exit the building while the incoming CO’s took up their posts. Given this practice, the change-of-shift tours described in the policy could not take place. [49] It is not reasonable to expect that a shift changeover process could have taken place in accordance with Ministry policy without clear direction from and enforcement by the employer. There was nothing clandestine or underhanded about the practice that had developed. Indeed, it appears to - 25 - have been in place so long that it is not clear how it developed. All the grievors testified that this was the practice when they started at EMDC, and the practice was part of what they learned when they were oriented to the workplace. To make the written policy work, employees would have to be directed to arrive early and/or stay beyond their shift time. That is not an order that can or should be given by one CO to another CO, it would have to come from management. [50] I note that other employees working on other units during the same shifts as those worked by the grievors did not perform end-of-shift tours with incoming shifts, nor did they file valid shift change-over certificates, and yet they were not disciplined for such failure. It is not surprising that the change-over process was not conducted on this, or other shifts, and the employer’s investigation of this matter concluded that shift change-over was typically only performed on a minority of units. It was telling that the CO’s who testified stated that they were more surprised that the investigation found shift change-over certificates were performed on any unit. [51] The employer is not in a position to argue that the failure to follow the shift change policy was restricted to a few employees who hid their actions. Rather, the majority of employees did not follow the policy on most shifts, and this has been the state of affairs for some time, indeed for many years according to the evidence. The employer was aware of this practice, if for - 26 - no other reason than that managers failed to receive the certificates that should have confirmed the process was being followed. Moreover, it stretches imagination, and the employer did not in fact argue, that managers were not aware that the employees have been changing shift at the elevator, a practice that was open and ongoing for many years prior. [52] I state again that the employer has the right to establish workplace policies. However, the ability to discipline employees for breach of such policies is subject to the common-sense limits outlined above. One such condition is that the employer must be able to demonstrate that a policy is consistently enforced. It is simply not acceptable for an employer to write a policy, ignore violations of the policy in the workplace and then, without further notice, discipline an employee for failing to follow the policy. Moreover, as I have already stated, employer intervention was required to properly implement the changeover procedure at EMDC. [53] It is my view that these employees have been singled out for the breach of a policy that has not been consistently enforced. As a result, any discipline for failing to complete the shift change-over process is rescinded. 5. Use of the Diester Recording System [54] This allegation is related to General Findings Timing of Tours and Tours during Day. EMDC, like other institutions, uses an electronic system to - 27 - record security tours, variously referred to as the Diester, Silverguard or BCS system. The CO’s carry a small wand during the tours and touch the wand to disks fixed to the walls at various points in the units. The system records the precise time when a wand touches a disk, thus recording the exact time and duration of security tours in each unit. The records of such tours are the responsibility of the Security Manager. [55] The recorded evidence from the period from October 25 to 31, 2013 indicated that no such tours were conducted at 20:00 or 20:30, except on October 25. Furthermore, during the period from May to October 2013, Diester records indicated that the first recorded tour was typically at 21:00 or later. Given that the employer received reports of tours, and given that the grievors all testified this practice had been in place for some time, it is my conclusion that the employer must have been or should have been aware that the written policy was not being followed. Once again, it would not be fair to employees for the employer to impose discipline based on a policy that has not been consistently enforced. It is my conclusion that all the allegations regarding the breach of the Diester tour policies should be dismissed against all grievors. 6. Inspection of Equipment [56] Some of the grievors were disciplined for failing to properly inspect the security of the locks, windows, doors and “other equipment” during the tours. The employer argued that the videos show that employees - 28 - conducted tours at a very rapid pace, and did not appear to pause long enough or look closely enough to ensure that the security apparatus was in order, i.e. that the cell doors were locked, that the meal tray portals were secure and that the windows were undamaged. [57] The CO’s who testified indicated that it was easy to determine the security of the equipment at a glance, given the size and positioning of the locks for example, and they have become adept at quickly scanning for any anomalies due to repetition of the task. While I have other concerns about the quality of the tours conducted, I do not find that the employer has produced sufficient evidence for me to conclude that the tours violated the policy regarding the inspection of equipment. Although the tours I reviewed on the videos were generally conducted at a rapid pace, I cannot discount the assertion of the witnesses that a quick glance at the door of each cell is sufficient to determine if there are any security issues with respect to the equipment. It is my conclusion that all the allegations regarding the failure to conduct proper security equipment checks during tours should be dismissed against all grievors. 7. Covered Lights in Cells [58] The employer imposed discipline for the failure of employees to address the covered light in Cell 3, in that the video appears to indicate that the night lighting in the cell was at times dimmed during the night of October 31. - 29 - [59] The evidence of multiple witnesses was to the effect that it is not unusual for inmates to cover the lights in their cells at night. Tyler testified, for example, that on the night in question most of the lights were covered in some fashion, and that this was “not a remarkable thing.” Tyler further testified that, although he was aware that he should be instructing inmates to remove any such covering, it was an “uphill battle” in that the coverings are often removed only for a moment and then put back up after the tour. He also testified that it was his view that if CO’s insisted that the coverings be removed it would lead to an adverse reaction on the part of the inmates. Lonsbary testified in a different vein, stating that he was not made aware that the covered lights were a “big concern”, adding that even if the cell lights were covered by a t-shirt or similar object, the light was only dimmed and the cells were not dark. He testified in cross- examination that if the covering on the light was such that it interfered with his ability to do his job, i.e. to inspect the inside of the cell, he would ask that it be taken down, but that otherwise he would not take any action. Pinkney stated she would also ask that the light coverings be removed if they interfered with her view of the cell, but that this was almost never the case because the coverings only “dulled” the light. She testified about addressing window coverings in cells on Unit 5 that night because they hindered her view inside the cell. - 30 - [60] The important point in the evidence of the CO’s is that the use of light coverings does not obscure the view inside the cells at night. I have no evidence upon which I can contradict this assertion. The video evidence appears to suggest a variation in the darkness inside the cells, including in Cell 3, but the quality of the video is not such that I could conclude the grievors were not telling the truth. I also accept the evidence that covered lights are not an unusual occurrence in the institution and that CO’s exercise some judgement in deciding whether to insist upon the removal of such coverings. Again, it is difficult to conclude that managers were not aware of this practice. The employer would have the right to issue specific instructions to CO’s on how to address cell light covers, but the evidence is that the way CO’s dealt with it was acceptable to the employer. I have concluded that all the allegations regarding the failure to insist that the inmates remove cell light coverings should be dismissed against all grievors. 8. Use of Flashlights [61] The employer imposed discipline for the failure of CO’s to use flashlights during their tours. The employer did not make flashlights readily available for CO’s at the time of the events in question, nor was there any direction that CO's were required to use flashlights. Flashlights have been made more readily available since. The allegations regarding the failure to use flashlights during security tours are dismissed against all grievors. - 31 - 9. Logbooks [62] The employer alleged various violations regarding the logbooks kept on the units for communication among employees. I did not find merit in these allegations. It is clear that the practices with respect to logbooks - such as collapsing the logs on night shift, using the top of the hour and bottom of the hour as shorthand for tours, etc - were all well established, open, and known to the employer. Indeed, the managers sign the logbooks regularly, and there was no evidence that the impugned practices were ever addressed as disciplinary incidents or treated as problematic in any way. As explained above, the employer will always have difficulty imposing discipline for practices that ‘violate’ policies that are not consistently enforced. Thus, any allegations regarding logbooks not specifically addressed in relation to an individual grievor are hereby dismissed. 10. Leaving Before End of Shift [63] Several grievors were disciplined for leaving before the end of their shifts. The evidence discloses that the end of shift practice at EMDC included employees leaving the floor after their “duties were completed”, sometimes as much as 10 to 15 minutes before the actual end of shift depending on when the shift ended. Employer counsel argued that if a CO left the floor and proceeded to the foyer to prepare to leave the building, he or she would be unable to respond effectively to an emergency. The employer’s perspective, which is not unreasonable, it - 32 - that a CO’s duties associated with a particular shift were not completed until someone had actually arrived to replace them. [64] Even though that may be the best practice, the evidence established that the managers were aware that employees were “leaving early”. These were not clandestine departures. Employees collected their things and put on coats. When Langford left on the night of October 31, he appeared in the manager’s office, which was on his way from his work station to the building exit, and spoke to two managers before proceeding to the exit. Nothing was said to him at the time about leaving the unit early. In most cases the outgoing and incoming shifts met at the elevator, so the timing was clear and obvious to managers. Employees had been led to believe that it was an acceptable practice to prepare to leave the building prior to the end of a shift. [65] I have considered whether the “leaving early” aspect of the shift change practice is different from other issues, such as failing to fill out a certificate, in that such a practice is inherently problematic. However, I have concluded that it was part of the end-of-shift practice that had been in place at EMDC for some time. While it seems reasonable that best practice would be to require employees to remain at their posts until the end of the designated shift, that was not how it was done at EMDC. It would not be appropriate to condone the practices that had developed at EMDC for years, and then to subject employees to discipline for following - 33 - the practice. Thus, any allegations regarding leaving early not specifically addressed in relation to an individual grievor are hereby dismissed. 11. Quality of Security Tours [66] The employer imposed discipline on some of the grievors for failure to conduct adequate security tours. There were two aspects to this issue. The first is the inspection of the “security equipment”, which I have addressed above. The second aspect is determining that all inmates are in their cells and they are safe. [67] The Ministry’s Institutional Services Policy and Procedures Manual sets out the expectation with respect to security tours in the policy regarding Inmate Counts as follows: “A live body must be seen by direct observation; that is to say, an employee must be certain of seeing flesh rather than counting on the basis of a piece of clothing, hair or a ‘body- like shape’. When taking a count with the aid of a flashlight, care will be taken not to shine the light directly on the inmate’s face, unless necessary to see the inmate’s flesh.” [68] There is a difference between checking the security equipment versus checking on the safety and security of individual inmates. The cell door lock is large and has an obvious binary setting, and it is easy to tell if it is in a locked or unlocked state even from a distance. I have accepted above that it is plausible that the CO's can scan the door elements quickly and assess rapidly whether anything appears out of the ordinary. - 34 - [69] The question is whether employees may be subject to discipline for failing to follow the Ministry policy regarding the need to view “human flesh” as part of their rounds. [70] Based on the video evidence, as well as the snapshot of Diester records provided at the hearing, a typical tour of a unit took approximately 40 to 60 seconds, and only unusually more than a minute. The videos show the CO's conducting the tours a medium or brisk walking pace, and they normally do not pause or break their pace in front of the cells. There is something of a spectrum in the ‘quality’ of the tours, although it is relatively narrow. Some CO’s sometimes appear to walk briskly through the unit and pass by at least some of the cell doors without turning their heads and looking in. The best of the tours, in my opinion, do not take significantly more time, but an objective observer can at least note that the CO appears to be looking directly into each cell. [71] The evidence does not support the conclusion that the tours conducted on the night of October 31/November 1, 2013 were different in quality from tours performed on other shifts. Moreover, the employer policy Security and Controls: Occupied and Unoccupied Areas stipulates that, in those institutions with computerized recording systems, such as EMDC, a manager is tasked with reviewing the recorded security patrols. Whether this was done or not, I have concluded that the employer must have been aware of the quality of typical tours at EMDC. - 35 - [72] Of all the issues related to past practice, the issue of viewing a “live body” is the most difficult to assess. The grievors all testified that the way they conducted the tours captured on the video was typical of how they have conducted tours during their time at EMDC, and that appears to be the case. Penny Rock, a Shift In-Charge Manager, testified that she would have corrected any CO's she witnessed conducting tours in the manner attested to by the grievors. Ms. Rock struck me as an intelligent and competent manager, but she conceded that she could not say for certain how other managers dealt with tours, and she had only been in the position at EMDC for a short time prior to the events in question. I have concluded that tours at EMDC were generally conducted in the manner described by the union witnesses, as depicted in the video evidence. [73] Any reasonable observer reviewing the video record of security tours at EMDC would conclude that it is not likely that many, if any, of the CO’s could have been following the Ministry policy of identifying a “live body”, i.e. observing human flesh. Leaving aside the issue of lighting, which appears to be variable throughout the institution and from cell to cell, the tours were simply too quick. Often CO's passed cell windows at a walking speed that I would describe as brisk, and without looking directly into the cells. Guylee testified that CO's relied heavily on “peripheral vision” when in the units, and any manager would have known this to be the case simply by watching tours being conducted. Lonsbary testified that a - 36 - normal tour would take him approximately 35 to 40 seconds for the entire unit, and the video and Diester statistical reports confirm that as a reasonable estimate. I take the evidence produced to me in the hearing to be representative of what I can assume to be normal tours in the period prior to October 31, 2013. From my review of the video evidence I could not bring myself to conclude that there was much doubt about the nature and quality of the tours. At most, for those tours conducted on the ‘good’ end of the tour quality spectrum, it would be difficult to believe that the CO's could have done more than count the number of “body-like shapes” in the cell. At the same time, given the manner other tours were conducted, no reasonable observer would be able to assert that even that much information was being gathered with respect to each cell and, in some cases, with respect to any cell. [74] I cannot help but conclude then that managers at EMDC were aware of the quality of the tours. Given that the managers must have been aware of the speed and way tours were being conducted, the employer must have also been aware that it was unlikely CO’s could check for “live bodies” in accordance with Ministry policy. Thus, I have concluded that the quality of security tours was such that the employer must have been aware that managers were not enforcing the policy requirement for checking for a “live body”. - 37 - [75] However, I do not see this in the same way as the allegations with respect to the violations of some of the other unenforced employer policies. Employees should not be disciplined for breach of unenforced policies, except where the violation of the policy entails an obvious and unreasonable risk to safety. At the heart of the role of the Correctional Officer, indeed the entirety of that role, is maintaining the security and safety of individuals committed to Ontario’s jails. During the night, that role is largely focussed on security rounds through the units. It cannot be that a security tour is merely an opportunity for a CO to show up in the unit and do a quick, pro-forma “walkthrough” to accomplish a series of Diester taps. The purpose is for the CO to do a circuit of the unit and engage in a meaningful investigation of the area, including each cell, to determine to the extent possible that the people in the unit are secure and safe. A CO does not need a policy to establish or explain this purpose – it is self- evident. [76] As with any task performed by an employee, there is a range of thoroughness and attention that the employee can apply in carrying out the task. When it comes to the task of ensuring the safety of other human beings held in state institutions, it is my view that the people of Ontario have the right to expect a high degree of attention from Correctional Officers. The individuals under their care are almost entirely dependant upon the CO's for their safety, and the duties of a CO must be performed with this central fact in mind. As the tragedy of the current case - 38 - demonstrates, the risks to individuals in the institution can be sudden, violent and life-threatening. In addition, and to the same extent, preserving the security of the institution is important for the health and safety of the people who work there. [77] When I review the video evidence I reach the conclusion that many of the security tours conducted at EMDC were generally inadequate to the purpose of observing the conditions of safety and security of the individuals in each cell. While it could be imagined that the tours conducted might have enabled the individual CO’s to count the number of inmates in a cell, I am not persuaded that it would have generally been possible for the CO’s to do anything more significant than that. [78] The nature and quality of the security tour was really a matter of individual determination and decision. This is the flip side of the point I made above that it would have required employer intervention for the shift changeover process to work. When it comes to security tours, the individual CO tours inside the unit alone (when not conducting a tour with a manager), while the outside officer acts as an observer or backup. There does not seem to be anything that prevents a CO from setting his or her pace in order to make reasonable efforts to take in such visual and other information that might be relevant to matters of safety and security. It does not strike me as onerous that he or she could pause at each cell door for a few seconds in order to assess the conditions inside the cell. I note that pausing at - 39 - each cell window even for a few seconds would not have extended tours by more than half a minute. There are certainly no constraints of which I was made aware that would prevent a CO from doing so. Of course, conducting a more methodical tour would not guarantee that all problems would be identified, and it might not have made any difference with respect to the safety and security of K on the night of October 31. However, there is no doubt that the some of the tours conducted prior to and on that date would have limited the amount of information a CO might gather during a tour, and individual CO’s must accept responsibility for the way in which they carried out this task. [79] Given the safety issues at play, it is difficult to understand why greater care was not taken in conducting some tours, and I believe any reasonable person reviewing the videos would reach the same conclusion. CO's performing tours often moved too quickly to be able to say that they made a reasonable attempt to collect the information that might be available to their senses in order to evaluate whether there was anything amiss inside a cell. [80] That being the case, it follows that any CO should have also been aware when his or her tours were inadequate to the core responsibility of making reasonable efforts to guard the safety and security of incarcerated individuals under their care. No policy is required to direct the employee to this end or to serve as a measure to assess the effort made – it is a - 40 - matter of basic common sense. Since the objective of inmate safety is the reason why every CO has a job, I cannot view the failure to conduct proper tours as a mere breach of an unenforced policy. In other words, even though the employer did not enforce the “live body” aspect of the policy, CO's had a responsibility to make reasonable efforts to conduct tours consistent with protecting the safety and security of inmates. [81] I am persuaded that the grievors before me performed security tours in the same manner for most if not all their time at EMDC, and that the managers at EMDC must or should have been aware of these facts. No employees appear to have been disciplined for the quality of these security tours until the events that are the focus of this decision. These as important factors to be weighed. However, the bad practices at EMDC do not wholly absolve the grievors on this point, in my view. Rather, the performance of poor security tours is such an obvious failure of the core responsibility of a CO that it is my conclusion those engaging in such tours should be held accountable and are liable to discipline. [82] The employer’s position at the hearing appeared to be that the necessity of determining whether each inmate counted was alive, i.e. a “live body” as described in the policy, might require that the CO’s make some noise in order to wake the inmates and cause them to move. The CO’s and managers who testified indicated this would likely have caused conflict, even serious conflict, with the inmates whose sleep would be interrupted, - 41 - which seemed to me a reasonable concern. Thus, I do not agree that the grievors were subject to discipline for failing to deliberately make noise to wake inmates. [83] I have concluded that the employees may be subject to discipline for failure to conduct adequate security tours. That being said, any discipline related to such a failure must be weighed against the employer’s failure to uphold higher and clearer performance standards in this area, given the open and well-known manner of conducting tours, the fact that the employer must have been aware that the tours were not generally adequate, and the lack of prior disciplinary action in this area. 12. Payment-in-Lieu of Reinstatement [84] The employer argued that in the event I were to find that there was not just cause for the termination of an employee, I should order that the employee should receive the remedy of payment-in-lieu of reinstatement. This submission was based on several factors, most particularly the employer’s allegation that the grievors had not accepted responsibility or expressed remorse, but rather had attempted to transfer blame to management at EMDC. [85] As is set out below, three of the five grievors are to be reinstated. I am not persuaded that payment-in-lieu is the appropriate remedy for those who are to be reinstated, for three reasons. - 42 - [86] First, it is not my conclusion that the grievors all failed to express remorse. While the grievors all described how the terminations had impacted them and their families financially, they also spoke about the difficulties dealing with the fact that an inmate had been killed while they were on duty. Some spoke most clearly and, in my view, sincerely about how K’s death had impacted them personally, and almost all of them expressed remorse for the event and described the psychological pain they had experienced. [87] In addition, I do not find it improper that the grievors relied on the history of the practice in the workplace to explain why they did what they did, in response to allegations such as the failure to complete a shift change certificate, or the way they made use of the logbook. As set out above, I have agreed with the grievors and the union on many of these points. I did not perceive such evidence as an attempt to blame management, but as part of a reasonable attempt to provide context around the discipline imposed on them. [88] Finally, a payment-in-lieu remedy is typically utilized when the employer has not demonstrated just cause for termination but where the trust essential to the employment relationship has been so severely damaged by events that one cannot expect that the employee will successfully reintegrate to the workplace. However, all the grievors continued to work for significant periods of time after the incident. Langford and Lonsbary - 43 - continued to work until March 2014. The other three terminated employees, Guylee, Tyler and Pinkney, continued to work until June 2014. This continued service for months after the events argues strongly that the employer, even in the immediate aftermath, had sufficient confidence to allow all the grievors to continue to perform their duties for some time during the investigation. Moreover, I have not been made aware of any fresh problems that arose during these time periods, and most of the grievors testified about the ways they changed their job performance after November 1, 2013. I have concluded that the payment-in-lieu is not an appropriate remedy for the reinstated grievors. 13. Agreement of May 2006 [89] The union provided evidence about a grievance settlement signed by the parties in May 2006. The dispute related to the fact that some employees had been disciplined for failing to adhere to written policies. The parties agreed to resolve the dispute by stipulating, among other things, that they would return to the practices in existence prior to May 2006 and that the employer would not discipline employees for following those practices. I did not find it necessary to rely on this document in my consideration of the discipline in this case. I have agreed with the union in almost every case that an employee could not be disciplined for following workplace practices that are contrary to employer policies when such policies were not consistently enforced. I note the grievance settlement did not address any specific practice, let alone describe the practices that were in dispute. - 44 - Given the specific nature of the allegations before me, it is more appropriate and meaningful to rule on the specific facts, rather than to allude to a general principle. Whatever the limits of the 2006 agreement, it would not shield employees who performed their duties in a manner that was inconsistent with the health and safety of inmates or other employees. It is worthwhile to note, however, that the 2006 agreement supports the union’s evidence that practices at EMDC appear to have differed from written policy for some time. Submissions and Decisions re Individual Grievors Grievor #1 - Greg Langford Introduction [90] Greg Langford had 15 years of seniority at the time of his termination. The employer alleges that Langford’s evidence demonstrated a “complete lack of remorse” and a failure to acknowledge wrongdoing. In addition, the employer argued that there were contradictions in Langford’s testimony that indicated he was not being honest, and this failure to be forthcoming at the hearing is sufficient, in and of itself, to support the conclusion that he is not deserving of reinstatement. The Chokehold Incident Employer Submissions [91] The employer pointed first to the incident earlier in the day on October 31, when G placed K in a chokehold. This incident took place in front of - 45 - Langford. The employer asserted that this was a serious incident that could be characterized, at very least, as an act of bullying. A stronger inmate engaged in a one-sided physical exchange, putting a smaller inmate in a chokehold in front of staff. The employer described the incident as an act of defiance on the part of G, and a challenge to the ability of the CO’s to enforce discipline on the unit. The employer argued that any person with experience in corrections would have understood that this challenge needed to be answered, not just to protect K, but also to communicate to other inmates that the CO can maintain discipline, and that G was subject to the same discipline as any other inmate. Langford was aware that G was known as an enforcer on the unit, yet he took no steps in response to the chokehold. His evidence was that he thought the incident was horseplay, and that K was fine because K told him there was no problem, but this assessment in no way addressed the significant act of aggression that had taken place. At very least, the employer asserted, Langford should have issued a misconduct against G. [92] Langford questioned K after the fact, but K’s response that he was fine was more likely a way of saying, ‘stay out of this’ or ‘mind your own business.’ It was quite possible that K did not have said anything out of fear of G, one who was known as an enforcer capable of violence. Langford, as an experienced CO, should have been aware of that, and it is likely that he was. The employer also argued it was significant that Langford characterized the incident as “horseplay”, yet he testified that he - 46 - spoke to K at least three times to determine K’s reaction to the incident. If the grievor sincerely believed the incident was horseplay, there was no reason for him to question K multiple times about the situation. Regardless, the employer’s policies do not recognize an exception for horseplay, and it was Langford’s job to respond to keep K safe and enforce acceptable behaviour on the unit. The employer submitted that Langford failed to react properly at a key point where appropriate intervention might have prevented a tragedy. [93] The employer asserted that Langford’s statements about the chokehold incident were not consistent and, therefore, not credible. He stated, for example that he was prepared to act if G had not released K when told to do so for the third time. This contradicted his subsequent report, in which he stated that he had warned G “four or five times”. His evidence and his report also differed on whether K had turned ‘pink’ during the chokehold, indicating a lack of oxygen, while the video clearly showed this was the case. [94] The employer also dismissed as irrelevant any discussion that had taken place between G and Zavitz, who was also present. Whatever was said between those two, it would not justify the assault that is evident on the video, or reduce Langford’s responsibility for taking disciplinary action against G. - 47 - [95] The employer asserted that the evidence demonstrated that, had Langford issued a misconduct against G for the chokehold, the two inmates would have been separated, which may have prevented the tragedy that followed. The employer acknowledged that neither Langford, nor any of the other grievors, wanted the outcome that followed this incident. However, the grievor failed in his duty and the consequences were extreme. This was a factor, the employer argued, that removed any possibility of reinstating Langford to employment. This was especially true, in the employer’s submission, because Langford continued to maintain that he had done nothing wrong in the way he handled the chokehold incident. Union Submissions [96] The union submitted that the context for the chokehold incident was important. It was Halloween, and G was wearing a Halloween-themed t- shirt. The evidence disclosed that Zavitz made a comment to G about the shirt, and G replied he could show her a “trick”, since he had no “treat.” It was at that point that G walked over to K and grabbed him from behind. Langford took this as “horseplay”, which was not unreasonable or illogical in the circumstances. Once he reached the conclusion it was horseplay, no formal misconduct was required and informal counselling was appropriate. If Langford committed any error, it was in failing to note this incident in the unit log. Langford’s evidence was no different from that of the employer witnesses Glenn and Rock, who both testified that CO's had - 48 - the discretion to determine whether conduct warrants a formal or informal response. Langford applied his 15 years of experience and exercised that discretion in the circumstances of that moment. It is only with the benefit hindsight that the employer suggested he should have done something different. [97] EMDC practices permit CO's to exercise discretion with respect to misconducts, in that it is recognized that in some cases counselling is the appropriate response. Langford reached the conclusion that the incident did not rise above the level of horseplay, and he exercised his discretion to provide counselling rather than impose formal discipline on G. The union acknowledged that Langford failed to make a notation in the logbook about the incident. However, in light of the evidence that the logbook practices were generally inadequate at EMDC, the level of discipline must be assessed in that context. Conclusions – Chokehold Incident [98] Langford was disciplined for failing to file an Occurrence Report and for failing to impose a misconduct on the inmate G arising out of the chokehold incident. Langford’s reaction to the chokehold is important because, had he assessed a misconduct against G for the incident, the two inmates would have been separated, and the subsequent assault on K would likely not have occurred. - 49 - [99] I am not persuaded that the grievor’s explanation for his decisions with respect to the chokehold were consistent with his obligations as a correctional officer. [100] I accept that CO's have the discretion to decide when to issue misconducts, or even to decide to treat a physical interchange between inmates as horseplay. However, such discretion is not absolute, and a CO must exercise judgment in these areas in a manner consistent with the core responsibility of maintaining the safety of all inmates. Such an exercise of discretion is, of course, subject to review and, if appropriate, may attract discipline if found to be wanting. [101] After reviewing all the evidence, I cannot conclude it was reasonable to treat the incident as ‘horseplay’. First, there was a marked difference in the size of the two inmates, with G, the stronger inmate, physically dominating the smaller inmate, K. In addition, a chokehold is not a form of physical interaction that is readily considered to be light-hearted or playful. The hold in this case, true to the label, was one in which G had K at his mercy and that, with the application of pressure, could deprive K of oxygen. Indeed, the video suggests this is what happened. I am not persuaded that the fact that K was moving with G and had control of his feet, which the grievor referred to several times in his evidence, was factual or even relevant in assessing the incident. Given that K was in a chokehold, his only option, apart from a brawl, was to follow G’s - 50 - movement in the hope it the hold end without any serious harm. K made motions with his right hand almost immediately that appeared to indicate he wanted G to break the hold. K backed away from Langford, appearing to want to prevent Langford from intervening. I did not find Langford’s description of the event consistent with the video evidence, and I do not believe a reasonable observer would conclude that K was simply playing along or engaging in some form of mutual horseplay with G. [102] Moreover, I am not persuaded that Langford considered the incident to be horseplay at the time. Langford testified in chief that he told G to “quit fucking around” three times. Moreover, in the Occurrence Report, written the day after the incident, he stated he had asked G “four or five times” to break the hold, and in cross-examination he stated that “it could have been three, it could have been six” times. Whether he directed G three times or six times to break the hold, the fact that he asked once is an indication that Langford was concerned enough to intervene, which one would not expect if the incident had been mere horseplay. The fact that he was required to speak to G multiple times is also an indication that G was engaged in something other than horseplay, given that, in addition to having K in a stranglehold, he was defying the clear and direct orders of a CO. The incident took place in front of the other inmates on the unit. I do not find it convincing that Langford concluded that such an open challenge to his authority was horseplay. I note that Langford testified he had known - 51 - G for some time, including during the time when he worked at Sarnia Jail prior to 2006. [103] Similarly, Langford testified that he asked K at least three times afterwards if he was “okay”. When employer counsel put to him that he would not have asked K’s reaction three times if the incident had been mere horseplay, Langford responded he asked inmates how they were doing “all the time.” This response did not strike me as pertinent. Langford had related the fact that he spoke to K at least three times after the chokehold, presumably to demonstrate that he checked with the inmate to make sure that he was not feeling any concern (or physical discomfort) after the incident. It seems to me that employer counsel’s question and submission on this point is well founded, i.e. that there would have been no need to check several times on K’s wellbeing if Langford had considered the chokehold to have been nothing more than horseplay. [104] Finally, with respect to the chokehold incident itself, I was concerned about Langford’s response to another question. He was asked by Mr. Shahab in cross-examination whether it was possible that K did not voice concern about G afterwards because he was afraid of G. Langford’s response was, “He had ample occasion to say he feared for his safety – if he did not say he was in fear, how was I supposed to know.” In my view, this is precisely the type of thing a CO is supposed to know, or at least be able to deduce, without being told. I have not worked a day as a CO but it - 52 - strikes me as common sense that if a CO waits for an inmate to signal that another inmate is a problem, one is likely to wait in vain. Inmates who ‘rat out’ other inmates can expect retribution. Any reasonable observer, and especially one trained as a correctional officer, should be able to conclude there is reason to be pro-active in these circumstances. Langford asked K at least three times if he was okay. That indicates to me that Langford understood that there were grounds for concern. However, if K was indeed intimidated by G, which is likely, it would have been reasonable to assume that K would not want to say anything for fear it would cause more problems with G that would lead to further assaults. There was, in other words, a reasonable basis for Langford to conclude that there could be a risk of further incidents, regardless of what K said, if the two remained housed together. Langford’s response to the question from employer counsel did not address this concern, and for this reason I found his response troubling. [105] With respect to the employer’s allegation regarding the logbook and lack of an Occurrence Report recording the incident, Langford testified that it was Zavitz’s responsibility as the Outside Officer to note such incidents. However, he also testified that she left the workplace before he could talk to her about the incident and that he did not later check to see if she had made a note about it in the logbook. - 53 - [106] The core duty of correctional officers, the duty around which all other tasks are focussed, is to protect the health and safety of inmates. Good communication, whether in the form of the daily logbook or Occurrence Reports, is a key tool in fulfilling that duty. Such communication is intended to ensure that every CO is made aware of ongoing issues or concerns, which in turn helps CO's to be alert to areas of special or unusual risk. Although Langford acknowledged that he could have made an entry in the logbook about the chokehold incident, he failed to do so, and he failed to check if Zavitz had done so. Not only did he fail to take due care with respect to this communication, his evidence left the impression that he did not accept responsibility for this failure, in that he placed emphasis on the assertion that Zavitz should have performed the task before she left the workplace. I have concluded this demonstrates a lack of care and attention to communication that amounts to just cause for discipline. [107] I note that Langford testified that the chokehold had been triggered by a verbal exchange between G and Zavitz about G’s Halloween-themed t- shirt, and had that not been the case he would have “dealt with it differently.” Zavitz apparently made a comment about the t-shirt but, in my view, this evidence was not particularly relevant to Langford’s handling of the incident. I do not see how the exchange with Zavitz could be seen as something likely to provoke, let alone condone, G placing K in a chokehold, nor did it explain or justify Langford’s reaction and failure to act - 54 - with respect to the chokehold. His repeated references to Zavitz’s role appeared to be an unwarranted attempt to deflect some of the responsibility for this incident. [108] After considering all the evidence and the submissions of the parties, it is my conclusion that Langford failed to respond properly to the chokehold incident on the afternoon of October 31. I am not persuaded that Langford exercised reasonable judgment even if he, in fact, had concluded that the incident amounted to horseplay. More importantly, I am not persuaded that, given all the factors outlined above, Langford considered the incident to be horseplay at the time, and that this characterization is more likely a later assessment intended to explain his failure to act more meaningfully with respect to a serious incident. In addition, I have concluded that Langford failed to take minimal steps to communicate this incident to other staff, and that his evidence confirmed that he was lacking commitment to or understanding of the importance of such internal communication. Further, he attempted to improperly shift blame for this incident on to another employee. As a result, it is my view that discipline was appropriate for his failure to fulfill his duties with respect to the chokehold incident. - 55 - Smoking on the Unit Employer Submissions [109] Langford’s mishandling of the chokehold incident was enough to sustain the termination, the employer submitted. However, there were further grounds upon which the employer relied. The first was that the grievor failed to respond appropriately when he detected that the inmates were smoking on the unit. The employer relied on video evidence that appears to show inmates smoking on the unit prior to Langford’s arrival on the unit on October 31, 2013 around 16:25 and again at 18:28. In the latter incident, the inmates are clearly smoking on the video, the employer submitted, and Langford is seen making a waving motion in front of his face when he stands in front of one cell, in an apparent acknowledgement of the smell of the smoke. His testimony, that he was reacting to an inmate’s flatulence, was simply not credible when viewed in the context of the video evidence. The grievor conceded in evidence that he discovered that the inmates had a wick, but he said that he told them to flush it down the toilet. If that was the case, the employer argued, there is no indication that he confirmed that they had done so. [110] The employer argued that, based on a review of the evidence, I should conclude that the grievor was aware of smoking on the unit and that he failed to take appropriate action in that he failed to advise his supervisor, and he failed to take any steps to investigate, such as enlisting the assistance of other CO’s to conduct a search. As a result, the employer - 56 - argued, Langford’s handling of the smoking incident was another example of serious misconduct. Union Submissions [111] The union argued that the employer took the position that the wick discovered in Cell 3 represented an instance of a serious contraband infraction that should have been reported to management. This assertion was contradicted by the employer’s witness, Rock, who testified that it was common at EMDC to tell inmates to flush wicks, and such incidents would not be reported. She also testified that managers were aware of that practice. Thus, the employer’s evidence contradicts the legal position they are advancing. Conclusions – Smoking on the Unit [112] This is what can be learned from the video evidence. G appears to be at the window of Cell 3 smoking something for a period of several minutes around 16:25 on October 31. Although the grievor asserted G could be eating a piece of cake, and although the video is not clear given that the view is through the window of the cell, G’s movements appear to me to be more consistent with smoking than eating. At 16:28 it appears from the video that G hands something through the tray portal of Cell 3 to the inmate distributing meals. The other inmate then makes unmistakeable smoking motions, even appearing to blow the smoke into the cell through the portal. At 16:32 the grievor passes by the cell opposite from Cell 3. - 57 - There are no inmates around him in the area outside of the cell, and he makes a waving motion with his hand in front of his face. At 16:33 he lets two inmates into Cell 3, and waves his hand in front of his face after he closes and locks the door, appearing to look at an inmate in the next cell as he does so. [113] Later, at around 18:28, two inmates can be seen smoking in the area opposite Cell 3, close to the sally port cage, just prior to Langford’s entry into the unit. As Langford arrives in the unit, one of the inmates makes a motion consistent with throwing the contraband under a door. At 18:29 Langford goes to the door of Cell 3 and again makes a waving motion in front of his face, while appearing to speak to G through the door. Again, there are no other inmates in the area outside the cell to account for the flatulence explanation. [114] Suffice it to say, I did not find the grievor’s evidence about the hand- waving being a reaction to inmate flatulence to be credible. Nor do I accept that the only issue the grievor was aware of was that there was a wick in Cell 3, and that the grievor instructed the inmates to destroy the wick. Rather, it is my conclusion that the video evidence is more consistent with the employer’s allegation that there was smoking of contraband on the unit around 16:28, and again around 18:28, and that the grievor was aware of this fact but took no action. Thus, it is my view - 58 - that discipline was appropriate for his failure to fulfill his duties with respect to the smoking of contraband on the unit on the evening of October 31. Alcohol in Cell 3 [115] Inmates are known to concoct a mixture referred to as “brew”, which is a fermented drink. The employer witness Rock testified that such brew can have a dangerous impact on inmates, causing mood swings, depression, aggression and suicidal thoughts. Moreover, disputes over the ownership of the contraband can lead to conflict between inmates. The grievor acknowledged in his evidence that alcohol poisoning was more of a risk in the jail than a drug overdose. Employer Submissions [116] The employer argued that on the night K was murdered, Langford became aware that G had consumed some form of brew. The grievor acknowledged this possibility in his evidence, and the employer argued that the video shows G offering Langford a drink of the brew through the door portal of Cell 3 at approximately 19:27. The employer alleges that the grievor’s response, or lack thereof, was significant. He made no effort to look inside the cell and inspect it for the contraband. Nor did he enlist the assistance of other CO’s to conduct a proper inspection. He testified that he spoke to two OM16’s on duty, and advised them that there was possible brew in the cell. He also testified that he told his supervisor’s that G appeared “happy and animated”, and that he told them, “who knows - 59 - what could happen.” Neither of these statements were contained in the grievor’s subsequent Occurrence Report. The employer submitted these statements were a later embellishment. More significantly, the employer submitted, the grievor did not tell his supervisors about the important detail that G had put K in a chokehold earlier in the day, nor did he mention smoking of contraband or a wick on the unit. [117] The grievor also claimed that he made a notation on the office whiteboard of a possible brew in the cell. The employer submitted this was a “self- serving fiction” since there was no independent confirmation of this evidence and, if he had done so, he would have certainly made mention of this fact in his OR. None of the other union witnesses confirmed the whiteboard story, and they conceded that if such a notation had been on the whiteboard it is likely they would have noticed and remembered. Union Submissions [118] The union took exception to the employer’s allegation against Langford with respect to reporting the suspected brew in Cell 3. The employer asserted that the grievor had an obligation to investigate or to file an OR. However, the employer’s witness, Glenn and Rock, contradicted that assertion, and confirmed that a CO fulfilled his or her responsibility once a suspected brew was reported to an OM16 or the In Charge (IC). In this instance Langford told both his direct supervisor and the IC about the suspected brew. At that point the managers assumed responsibility for - 60 - how to respond. They could have directed Langford to take further action, but they did not. [119] With respect to the whiteboard notation, the union acknowledged that a photograph in evidence indicated there was no such notation on the whiteboard. However, Langford’s evidence was that he made the notation and he cannot now explain how it was removed, given that he left the building shortly after. There was no obligation in policy for him to make such a notation, but he testified that he did. The union argued that the grievor’s evidence was credible on this point since there was no question that he had advised his supervisors, so there was no reason for him to fabricate a story about making the whiteboard notation. Conclusions – Alcohol in Cell 3 [120] The video evidence is again important in assessing this allegation. The video shows that at approximately 19:25 Langford accompanied the nurse on her medication rounds. At 19:26 the nurse stops in front of Cell 3 and appears to have a brief conversation with G. She does not hand any medication through the open portal and moves to the next cell. The grievor testified that the nurse advised him that she would not leave any medication in Cell 3 because G appeared to be drunk. Langford testified in cross-examination there was a smell of alcohol when he opened the door hatch and that G appeared to be “happy” and under the influence of “some - 61 - sort of stimulant.” At 19:27 G is seen drinking something and appears to be toasting or offering some to Langford as he does so. [121] The first video indication of the assault on K occurs at 19:59. [122] The employer alleges that Langford failed to take appropriate steps given his knowledge that there was the possibility of brew in the Cell 3. He testified that he advised shift IC Brydges, as well as OM16 Jurkus prior to leaving at approximately 19:40. He also testified that he wrote a message on the unit office whiteboard of a “possible brew” in Cell 3. However, none of the other witnesses who were in the office after could testify that they had seen such a notation. I have considered whether it is possible that someone erased the note on the whiteboard after the discovery of K’s death. While it is possible that another CO would have erased the note to destroy evidence that should have caused them to be more vigilant about Cell 3 that night, it would have had to have occurred after the discovery of K at 09:50 on the morning of November 1, and after many EMDC staff had been in the office. Moreover, as is obvious from the above findings, I did not find Langford to be a credible witness. For these reasons, I do not accept his evidence with respect to the whiteboard notation. [123] However, there is no dispute that Langford advised both Brydges and Jurkus about the possibility of alcohol in Cell 3 on his way out of the building that evening. There is also no dispute that Jurkus reacted by - 62 - advising Langford that there was no room in segregation and that they would deal with the issue in the morning. In my view, this exchange was sufficient to transfer a significant amount of the responsibility for the alcohol issue (but not the smoking of contraband or the wick, which he did not mention) from Langford to Jurkus and Brydges. [124] Having said that, it is also my conclusion that the grievor bears secondary responsibility with respect to this issue. He should have taken more steps to make sure the problem was communicated to his fellow CO's. He verbally advised Lonsbary. However, he did not make a notation in the logbook, and I am not persuaded that he left a note on the office whiteboard. Although Langford acknowledged the serious risks associated with alcohol in the prison, his actions reflected at most a minimal effort to respond to ensure the risks were properly communicated, monitored and addressed. He stated he could have logged the issue, but said he was “in a hurry to get out of the building” and added that it was usually the outside officer who makes notes in the logbook. In my view, the evidence was stronger than the possibility of alcohol in Cell 3. Langford confirmed that he smelled alcohol, and the video shows G openly drinking, and either toasting or offering the drink to Langford. There seems little question that there was some type of alcohol being consumed in Cell 3 that night, and Langford’s reaction did not indicate sufficient concern that the presence of alcohol could endanger the safety of inmates and staff. Given the above, it is my conclusion that the employer had just - 63 - cause to discipline Langford for failing to respond appropriately to the presence of alcohol in Cell 3. Moreover, it is my conclusion that there was also smoking of contraband on the unit, and that the grievor failed to report or take any action in response. [125] A related allegation is that the grievor failed to log, report or file an Occurrence Report with respect to the fact that the nurse declined to leave medication at Cell 3 due to the presence of alcohol. In my view, this was part of the series of events related to the presence of alcohol in Cell 3 that night, and I agree it is a detail one would have expected to be communicated. Other Allegations [126] Missed Tours – The grievor conceded that he did not conduct any tours between 16:28 and 17:45 on October 31. He agreed that, in accordance with employer policy, there should have been two tours during this period. He stated that he could not do the tours as the institution was short staffed. During his cross-examination, it became clear that he was not certain if other staff might be available to assist him to do the tours, and he did not ask. Security tours are intended to ensure the security and safety of the institution and the inmates. They are important. Given the grievor’s evidence, it is my conclusion that he failed at least to make inquiries to see if he could fulfill this responsibility, and that it would have been appropriate to reprimand him for this failure. - 64 - [127] Entering Day Room Without Outside Officer – For the reasons outlined in the General Finding, Presence of Officer in Sally Port/Cage, this allegation is dismissed. Decision - Langford [128] As indicated above, I did not find Langford to be a credible witness. I have noted above a few aspects of his testimony that gave me concern. Overall, the grievor demonstrated a tendency to explain his own failure to act by attempting to minimize events and to pass the responsibility to others. For example, when asked why he did not make a note in the log about the chokehold incident, or the presence of smoke and a wick on the unit, he stated that was the responsibility of the outside officer, not his. He made a similar statement, noted above, with respect to his failure to note in the logbook the chokehold incident and the presence of alcohol in Cell 3. With respect to the nurse, he made a statement that he assumed she would make a report about smelling alcohol and the condition of the inmates in Cell 3. Langford’s view appeared to be that Zavitz had somehow provoked the chokehold incident, as if she should have known her exchange with G would lead to G doing something like putting K in a chokehold. He admitted he was upset at her after the fact when he learned about the verbal exchange between Zavitz and G. This evidence all appeared to be intended to shift the blame to other employees. - 65 - [129] Langford attempted to justify his failure to take greater initiative regarding the alcohol issue by pointing to the failure of the managers on shift to take any action. The latter two employees were also disciplined. The fact that he advised them of the issue has the effect of transferring responsibility to them for the subsequent lack of response. It does not, in my view, justify the grievor’s decisions or actions. It is not sufficient to point to the failures of others to explain why he did not carry out his duties with greater care. [130] Finally, when asked how he felt about the events that day, he responded that he felt awful because more was not done to change practices at the institution afterward to prevent a similar event, and that he was “dumbfounded” that more action was not taken. (There was evidence presented at the hearing that, in addition to the discipline imposed on CO's and managerial staff, the current Superintendent, David Wilson, implemented numerous changes to procedure at EMDC.) It was significant to me that Langford did not express remorse or misgivings about any of his own decisions. The above responses, and more throughout the grievor’s evidence, tended to confirm the employer’s assertion that Langford failed to accept responsibility for his actions, and there was little indication he would behave differently if faced with the same circumstances in the future. [131] In addition, there were many responses that the grievor gave to questions put to him that were defensive or evasive, such as the response described - 66 - above when he was asked why, if the chokehold was mere horseplay, was it necessary to repeatedly ask K if he was ‘okay’. This exchange, and other similarly evasive answers, led me to the conclusion that the grievor would not or could not acknowledge or explain problematic aspects of his version of events. [132] It is of concern to me that the grievor had knowledge of three forms of contraband on Unit 6L and in Cell 3 on the night in question: alcohol, a wick and some other substance that was being smoked. I accept the employer’s submission that any contraband is an important issue. It seems self-evident that the presence of contraband items on the unit can lead to many potentially serious problems. As Vice-chair Petryshen found in Bellamy/Brown, at page 4 “[C]ontraband is detrimental to the safety and welfare of inmates and employees and to the overall security of the institution. … [E]ven food items and tobacco can lead to disputes among inmates which can develop into physical confrontations that in turn create a risk for correctional officers. The Judge in R. v. March, cited below, noted that, ‘The presence of contraband in an institution often leads to violence and extortion.’” [133] I have found above that the grievor failed to respond appropriately to the chokehold incident, to smoking on the unit, and to the presence of alcohol in Cell 3. The first two are more serious than the third, given the fact that Langford transferred a significant part of responsibility for the alcohol problem to Brydges and Jurkus before he left at the end of his shift. - 67 - [134] Langford was 56 at the time of the hearing, and had approximately 15 years of service at the time of his termination. He had no discipline on his file at the time and was never previously disciplined for any of the allegations that formed the basis for his termination. He is married and has two children, one of whom is attending university. As a result of his termination, he lost his savings and has required medication to deal with stress. The termination has been difficult for him, his spouse and his children. [135] The grievor’s failures to respond appropriately included failing to control the behaviour of inmate G at three key moments in the events that unfolded on October 31 and November 1, and failure to communicate fully and appropriately with his colleagues about those events. He was the only person, as employer counsel put it, who had knowledge of three “markers” indicating there was an increased risk associated with and around inmate G on that day, i.e. the chokehold, the presence of contraband material being smoked, and the possibility of brew or other alcohol in Cell 3. I have concluded he was not completely forthcoming in his evidence, and has not demonstrated a significant acceptance of responsibility, which also weighs heavily against reinstatement. The grievor’s reaction to events, even months after the fact, suggested that he had no misgivings about his decisions, while he was critical of his employer and of his co-workers. - 68 - Given all the above factors, it is my view that the employer had just cause to terminate Langford, and his grievance is dismissed. Grievor #2 - Dan Tyler [136] Dan Tyler was an eight-year employee at the time of his termination. Allegation 1 – Shift Changeover Procedure [137] This allegation is addressed in General Finding Shift Changeover. Allegation 2 – Improper Security Tours Employer Submissions [138] Tyler was working on the night in question, starting his shift at 19:00. Although he made an entry in the logbook indicating he had toured Unit 6 at 19:30, he later described the entry as a “filler”, and the employer characterized it as a false entry. The employer submitted that the evidence indicates that Tyler did not do his first tour until 21:00, or approximately two hours after he had started work. The employer argued that his failure to do a tour for two hours was serious misconduct. This was particularly the case on the night in question, because the video evidence indicates that the assault on K took place between 19:56 and 20:53. The video also indicates there was no one on the unit from 19:36 until Tyler conducted his tour at 21:01. - 69 - [139] The employer also argued that Tyler’s tour at 21:01 was inadequate, in that the video shows he looked quickly into each cell and did not spend enough time to determine whether there were two “live bodies” in the Cell 3. Tyler was moving too quickly to do a proper inspection of the cell. Even if it was true, as Tyler testified, that he saw two inmates in Cell 3, the employer’s policy requires that the CO confirm there are two “live bodies” in the cell, and it was serious misconduct for Tyler not to have done so. The employer asserted that there are serious and obvious risks associated with the failure to confirm that all inmates are not only accounted for but alive and breathing. There are dangers such as assaults, suicide attempts, or sudden illness. Other inmates often are fearful to become involved if, for example, an assault occurs, and it is up to the CO's to be vigilant. The employer also dismissed Tyler’s view that waking inmates to confirm they are well would not be practical since it would lead to inmate anger and possible riots. [140] The employer also relied on the video evidence which showed G standing at the cell door window and blocking the view into the cell at the time of Tyler’s 21:01 tour. The employer rejected Tyler’s evidence that he could see around G into the cell. He should have asked G to move to get an unobstructed view, and he should also have been alerted to the fact that something was amiss given that G was standing at the window. - 70 - [141] The employer alleged that Tyler failed to properly investigate banging noises he heard around 20:30, which he first thought came from the unit where G and K were housed, but he then assumed had come from elsewhere in the prison. He and Lonsbary noted that it was odd that G was still up and standing at his window during the inspection at 22:39, and he noted this discussion in his later OR. The employer argued that, if it was important enough to warrant a comment among staff, it should have been followed up, especially given the lack of proper tours, and the banging that was heard earlier. [142] Despite these failures, and despite the very serious consequences, Tyler refused to accept responsibility, and simply testified that he had performed his job as he always had, and did not believe he had done anything wrong. Given these facts, there is no basis upon which to conclude that he should be reinstated. Union Submissions [143] The focus of the discipline imposed on Tyler was the allegation that his tours were not frequent enough and were of poor quality. [144] The union asserted that the evidence submitted of the tour records of other employees demonstrates that Tyler’s tours were consistent with the timing of tours performed by CO's and OM16’s at EMDC. The Security Manager had to have been aware that Tyler’s tours were consistent with - 71 - longstanding EMDC practice. Given this evidence, the union submitted it would be “unjust” to single out Tyler for termination based on his actions that night. [145] The union argued that the employer placed considerable emphasis on the fact the G was standing in the window blocking the view. However, the union submitted that the evidence confirmed that it was not uncommon for inmates to be standing at the cell-door window to watch the television in the day room. Regardless, Tyler’s un-contradicted evidence was that he could see beyond G into the cell. [146] The quality of Tyler’s tours, the union argued, was consistent with all the tours performed by other CO's seen on the video and were consistent with the past practice at EMDC as described by all witnesses. The video evidence shows that Tyler’s tours were not much different from those conducted by a manager, Brydges, aside from the fact that Brydges used a flashlight. Brydges appears to merely “flip” the flashlight towards the cell windows, in a manner that would not provide more information that the look taken by Tyler. Moreover, the evidence demonstrated that CO's were not required to use flashlights to conduct tours, and that flashlights were generally not available. [147] The union denied that Tyler had failed to investigate the noise he heard. Tyler’s evidence was that he heard a noise. He thought it was coming - 72 - from Unit 4, but the inmates there said it was not them. He then called Unit 1 and the CO's there advised him that the noise was coming from that unit in response to a flooding problem. Thus, Tyler did investigate and reached a logical conclusion about the source of the noise based on the information provided. Conclusions - Allegation 2 – Tyler – Tours [148] Many of the details of this allegation are addressed by the General Findings: Logbooks, Timing of Tours, Use of the Diester Recording System, Inspection of Equipment During Tours, Covered Lights in Cells, Use of Flashlights, Presence of Officer in Sally Port/Cage, and Quality of Security Tours. In the case of all but the last of these elements of the allegation, the General Finding is that there is no just cause for discipline. The exception is with respect to the finding on Quality of Security Tours, in which I find that there may be just cause for discipline with respect to the quality of security tours, although the responsibility for the poor quality of tours at EMDC must be shared by the employer. [149] My review of the video evidence of Tyler’s tours indicates to me that they were consistent with the practice at EMDC. In comparison to other CO's, Tyler walks somewhat slower and looks directly into each cell, if only briefly. During the tour at 21:01, G is standing in the window of Cell 3, but there are inmates standing in the window of the adjacent cell as well, as there are from time to time throughout the videos, so there is nothing - 73 - particularly remarkable about this fact. Tyler, and others, testified that they could see into the cells and count inmates, even when someone was standing at the window. In my view, the video evidence is not clear enough to challenge the validity of this assertion. However, I agree with employer counsel’s argument that, even if Tyler could see into the cell, he could not have paused long enough to assess whether there were two “live bodies” in Cell 3. But, as I have noted in the General Finding regarding tours, it is my conclusion that management had not been enforcing the “live body” policy for some time. [150] Since I have no way of knowing the condition of Cell 3, I cannot say with any certainty that a longer inspection would have necessarily produced any clues about the violence that had just transpired. G could have taken steps to clean the cell, and there is some suggestion of that on the video. Tyler appears to conduct his rounds slightly more carefully than other CO's on the videos, and I am satisfied from viewing the video evidence that he looked directly into each cell. This means that, by my count, he looked directly into Cell 3 eight times that night, although the first two times G was standing at the window. In my view Tyler’s tours were within the parameters and expectations at EMDC, even though he was not checking for a “live body” as per Ministry policy. [151] Thus, I have concluded just cause was not demonstrated to support discipline against Tyler for the quality of his tours. - 74 - Investigation of Noise [152] I also accept Tyler’s explanation of his reaction to the noise. He investigated the noise, determined it was not coming from Unit 2, and was then told by staff in Unit 4 that it had been caused by a plumbing problem. His investigation was reasonable, and he did not rely on his own assumptions. He reached his conclusions after receiving a plausible explanation from other staff, and I find his actions to have been understandable and not subject to discipline. Allegation 3 & 4 - Logbooks [153] The employer did not enforce the policies with respect to logbooks and multiple employees testified to such practices as collapsing the logbooks at night, timing tours on the half-hour, reflecting counts at night, etc. Tyler, to his credit, agreed that these practices were wrong, in that they were not consistent with Ministry policy. However, I have found that the allegations with respect to logbooks cannot be sustained, and I have addressed this issue in the General Findings: Logbooks. There was no just cause demonstrated for alleged breaches of the use of logbooks. Allegation 5 – Leaving Early [154] This issue is addressed in General Finding Leaving Before End of Shift, and Shift Changeover. In accordance with the reasons outlined therein, it - 75 - is my conclusion that just cause has not been demonstrated for discipline for Tyler leaving early. Decision – Tyler [155] After reviewing the evidence, I have concluded that just cause for discipline has not been demonstrated with respect to Tyler. I order that he be reinstated, his letter of discipline rescinded, and that he receive full compensation. I remain seized with respect to any issues arising. Grievor #3 - Leslie (Les) Lonsbary Employer Submissions [156] Leslie Lonsbary was an 11-year employee at the time of his dismissal, which the employer said was not sufficient seniority to impact as a mitigating factor. Allegation 1 & 2 – Shift Changeover See General Findings re Shift Changeover. Allegation 3 - Inappropriate Tours Employer Submissions [157] The employer was critical of the nature of Lonsbary’s tours that night. At 22:39 Lonsbary performed a tour as the inside officer. G was again standing at the window to Cell 3 and there was a cover over the cell night- light that reduced the intensity of the light. Although Tyler’s evidence was - 76 - that he and Lonsbary discussed that it was unusual that the inmates in Cell 3 were still awake, Lonsbary took no special steps to ensure that all was well with both inmates. He testified that he could see around G and that he saw K “cocooned” in his blankets. The employer asserted this was untrue, that there was no way he could see into the cell with G standing and blocking the window, and the video shows that Lonsbary did not take the necessary time to look in the cell. The employer also faulted Lonsbary for the fact that no one toured Unit 6 during the time between 19:36 and 21:01. The employer submitted this was particularly egregious behaviour on the part of Lonsbary because he was aware of the possibility of brew in the cell. Given his awareness of this risk factor, it does not make sense that he conducted no tour during the first two hours of his shift, and he took no special precautions nor did he urge his co-workers to investigate the circumstances on the unit. Union Submissions [158] The union took issue with the employer allegation that Lonsbary failed to engage in any tours between 19:36 and 21:01. As mentioned earlier, the union relied on the evidence of the records of selected tours conducted by other employees during the period from May to October 2013 showed that in practice the first night tour was conducted around 21:00, and the employer must have been aware of this practice. Typically, there is a tour done around 20:00 just before the inmates are locked down. In this case, the inmates were already locked down by this point and so the 20:00 tour - 77 - was not done. With respect to the quality of the tours, the union argued that the evidence demonstrated that Lonsbary’s tours were consistent with the quality of tours conducted by employees at EMDC. Conclusion – Lonsbary - Allegation 3 Security Tours [159] Some of the details of the allegations against Lonsbary with respect to security tours are addressed in the General Findings section: Timely Tours; Use of the Diester Wand; Inspection of Equipment; Covered Lights in Cells; Use of Flashlights; and Presence of Officer in Sally Port/Cage. [160] Lonsbary’s tours, as captured on the video, are all relatively similar. He passes through the unit at what I would call a moderate walking pace. He does not break his stride. It is my conclusion that this pace would be sufficient to allow him to check the security of the security equipment for each cell. Although there is no way of knowing whether he was doing so, he testified he was. I accept that it was an easy task to do a visual check of the door, and I accept the grievor’s assertion that he did so. In addition, it appears to me that Lonsbary looked into each cell as he walked by, and I also accept that it is likely that he had enough time to count the inmates in each cell. [161] In my view, the tours conducted by Lonsbary were not better or worse than those performed by other employees, such as Tyler, and were consistent with the standard that was accepted at EMDC for years. As I - 78 - have noted, Lonsbary appears to look directly into each cell, something that other CO's did not always do. Given these considerations, it is my view that the employer has not demonstrated just cause for discipline with respect to the way in which he conducted his tours. Allegation 4 and 5 – Logbooks [162] The employer alleges various infractions of logbooks that raise issues that are addressed in the General Findings as follows: Timing of Tours, Shift Changeover and Logbooks. These allegations are dismissed. Allega tion 6 – Failure to Properly Investigate Noise [163] The employer was critical of Lonsbary’s response to a noise he heard at around 19:55. The video shows him leaving the unit staff office at that time and proceeding part way down the hallway towards Unit 6. He testified that he heard a noise on the unit and went to investigate. He got part-way there and then stopped. His evidence was that he decided the noise was cheering, likely in response to a game that was on the television in the unit. He did not get close enough to the unit to confirm whether this was the case, but returned to the office without looking into the unit. The employer argued that if the noise was loud enough to prompt Lonsbary to leave the office, he should have proceeded to the unit to satisfy himself that everything was in order. The employer asserted his failure to do so was grounds for termination. - 79 - [164] The union characterized this accusation as “categorically false”, arguing that the video shows that the grievor responded to the noise, in that he left the office and moved towards the unit. While it was true that he did not enter the unit, he did investigate. Based on what he heard he determined that the inmates were cheering in response to a sporting event on the television. He testified that the sound was not “overly loud”. There were no other witnesses, and thus his evidence about the extent of the noise cannot be contradicted. Conclusion – Failure to Properly Investigate Noise [165] The video evidence does not include any audio, so there is no evidence about the nature of the noise on the unit at that time, aside from that provided by Lonsbary. He testified the general noise level on the unit can be “fairly loud” but that shortly before 20:00 on October 31 he noticed an “escalation” in the noise. He said he got up to investigate and, on his way to the unit, heard cheering, and concluded that the elevated noise was related to a sporting event on television. He then turned around and returned to the office, satisfied that the inmates were in “good spirits” and there was no need for concern. [166] I have no direct evidence of the level or the nature of the sound that was being generated at the time of this incident. Perhaps some inmates were feigning cheering noises to drown out the sound from Cell 3 and protect G. Perhaps some inmates in 6 Left were unaware of what was going on in - 80 - Cell 3 and they were cheering at a game on television. Perhaps the grievor mistakenly understood the sound he heard. All of these propositions are possibly true, but there is no evidence to contradict the grievor’s version of events. [167] That being the case, the issue is whether the grievor engaged in a disciplinable failure of duty by not walking the rest of the way to the unit to confirm the nature of the noise after he concluded it was caused by a sporting event on television. [168] The grievors reaction to the noise is important. The incident took place at the time that the video show G assaulting K. The grievor’s job was to ensure the safety of persons incarcerated at EMDC. The sound was enough to cause him to get up to check. It is difficult to understand why he stopped short of doing a visual check. I accept that CO's rely on sound as one of the methods of overseeing activity within the units. However, a visual check would have been more reliable evidence than an assessment of noise in the hallway. The grievor was a matter of steps away from the unit, and could have easily walked the rest of the way to check to make sure of the reason for the noise. He did not provide any reason why he failed to do so, other than that he had concluded, without conducting a visual check, that the sound he was hearing was happy cheering associated with a televised sporting event. - 81 - [169] In my view, it was not an appropriate decision to fail to conduct a visual check in these circumstances, given the ease with which such a check could have been conducted, and given that a visual check would have been more reliable than an assumption based on sound in the hallway. The sound was such that it caused the grievor to leave the office. Having made that decision, it does not seem reasonable that Lonsbary would decide to depend on an aural input when a visual check would have been so easy. This does not mean that he would have necessarily discovered anything that would have tipped him off to the assault in progress, but it would have been the most reasonable way to confirm the nature of the noise. I have concluded that the employer had just cause to discipline Lonsbary for his failure to properly investigate the noise in the unit that evening. Allegation 7 - Closing Office Door and Phone Call [170] Lonsbary closed the office door between 20:18 and 20:50. In addition, the evidence indicates that he was on the office phone for approximately 17 minutes during that time, from 20:18 to 20:35. His testimony was that he could not remember who he was talking to. [171] The employer asserted it was not credible that Lonsbary spent almost twenty minutes on the phone during a time when an inmate under his care died, and yet he could not later recall who he was talking to. The only reasonable conclusion was that the call was personal and not work - 82 - related, and that he shut the office door deliberately so that noise on the unit would not disturb his conversation. Regardless of who he was talking to, it was inappropriate to close the door and shut himself off from the inmates under his care. The employer further alleged that it was inappropriate that, when Lonsbary was shown the video clip where he closes the office door, he refused to accept there was anything wrong with his actions, despite what was transpiring in Cell 3 at the very time the door was closed. [172] The union submitted that there was no prohibition against employees making phone calls from the unit office. The grievor could not remember the nature of the call, but testified that making calls is a regular part of his assigned duties, and he is on the phone often. He also testified that he did not place the call himself, and he could have been on the phone with someone else in the institution, but he did not remember. [173] With respect to closing the office door, the union argued there was no policy against closing the office door, and this was confirmed by the employer’s witness Rock. Lonsbary testified about a conversation the Deputy Superintendent had with him in the office when she had closed the door as she left. There being no policy directing the door not be closed, there is no basis upon which the employer can discipline Lonsbary for doing so. - 83 - Conclusions - Closing Office Door and Phone Call [174] There is no dispute that Lonsbary closed the office door for a period of at least 32 minutes on the evening of October 31. He testified that he did so deliberately to “dull the sound” coming from the unit. He said he thought he was using the office computer to sign up for overtime and that he might have been on the phone as well. He testified that the other office door was open and he could still “…hear a lot.” The grievor testified he did know who he was speaking to on the phone. [175] I found the grievor’s evidence about this incident to be troubling in a number of respects. [176] First, the grievor has not satisfactorily explained why he failed to confirm his assumption that the noise was from a sporting event, especially given that it would have been easy for him to do so. He was on his way to the unit. Why did he rely solely on sound when a visual check would have been better? A large part of a Correctional Officer’s job is observation and investigation. To use an analogy, a firefighter does not turn away from smoke by surmising when around the corner that is probably from a barbeque. Lonsbary’s failure to adequately explain this decision was puzzling and difficult to understand. [177] Second, the grievor’s decision to close the office door also raised concerns. The union’s witnesses testified that sound is used as a key tool - 84 - to monitor activity in the units, and that certain sounds are often the first indicators of trouble. It strikes me as problematic in general, and in these specific circumstances, that the grievor would deliberately reduce the amount of sound information he could receive from the unit by closing the door, particularly where no compelling explanation has been provided as to why he did so. [178] Third, the grievor made the decision to close the door even though he had found the noise excessive, which could be a sign of trouble. He had been concerned enough about the noise level that he had left the office to investigate. Given that he had not made a visual check to confirm his theory about the sporting event, one would have thought it would have been at least prudent to leave the door open in case there was further noise inconsistent with his unconfirmed theory. In my view, he accepted the unnecessary risk that he could have been wrong. In addition, he had been made aware by Langford that there was a possibility of brew on the unit, so there was a reason to be extra vigilant about what was happening on the unit. [179] Fourth, the grievor could not provide a reasonable explanation as to why he closed the door, other than to reduce the sound that he should have been monitoring. - 85 - [180] Fifth, it did not strike me as credible that the grievor could not recall who he was speaking to on the phone or what else he was doing during the office door was closed. The grievor found out later that someone had died on his shift, and one would expect that once he was made aware of that fact he would have done a thorough inventory of events that occurred during the shift in order to assess his own actions at the key times. [181] Sixth, the grievor justified his decision to close the door on the basis that there was no written policy against doing so. This struck me as inconsistent, given that a good part of the union’s evidence in this case was devoted to demonstrating that written policies were routinely not followed at EMDC. I have accepted a good deal of such evidence. However, the fact that the employer has condoned practices that are different from written policies in some instances does not absolve CO's from the responsibility to properly execute their duties. The absence of a policy means the CO is required to exercise judgement consistent with maintaining the safety and security of inmates and other staff. In my view, closing the door to the office in the circumstances described was not consistent with those duties. [182] Seventh, the grievor’s answers on this issue in cross-examination did not appear to be forthright or sincere. He did not provide a convincing explanation as to why he was not more forthcoming with investigators about the fact that the door was closed, or why he had been on the phone. - 86 - When employer counsel asked why he did not tell investigators about closing the door he responded that closing the door was “just common”, “a non-issue”, “there was no reason why I was not allowed”, and “they were closed all the time, why would it be different this time?” The difference strikes me as obvious. An inmate was murdered, and the CO responsible for the unit at the time was in an office with the door closed using the phone. This is a relevant set of facts, and I was not persuaded by the grievor’s explanation for his failure to bring it to the attention of investigators. [183] Finally, there were other aspects of the grievor’s evidence that I found difficult to accept. He said he could not recall who he was talking to on the phone, yet at the same time he was certain that it was not a private call. He pointed out that the door was closed for “only” 32 minutes, although the employer’s allegation suggests it was “approximately 40 minutes”, when such a difference is of no apparent significance. At one point he stated it was “a stretch” to suggest the video showed him on the phone, since you can see the phone cord but you cannot see him at the other end. However, the phone was in use and there was no evidence that anyone else was in the unit office during that time. These points of evidence led me to conclude that the grievor had not fully accepted responsibility for his actions and that his evidence was defensive and deflecting, rather than forthright and reliable. - 87 - [184] The grievor provided evidence about a prior incident when the Deputy Superintendent had spoken to him with the office door closed. But the circumstances were not similar. The grievor described the issue being discussed with the Deputy as relating to the issue of the mixing of intermittent and general population inmates. The issue appears to have been of some sensitivity, since the grievor had spoken to lower-level managers, but had not been satisfied and had taken the unusual step of speaking to more senior management. Moreover, the incident occurred during the day, while other staff were around to supervise the inmates. [185] Given the above, I have concluded that the employer had just cause to discipline Lonsbary for failing to properly supervise inmates when he closed the office door for an extended period on October 31, 2013. Allegation 9 – No Report or Logging re Brew on the Unit [186] The employer did not pursue allegation 8. Allegation 9 was that the grievor failed to properly document the possibility of brew on the unit, even though he had been advised by Langford of this issue. [187] A lesson to be learned from this case is that good communication among staff is crucial to maintaining the greatest degree of safety for everyone at the institution. In my view, discipline was warranted for the grievor’s failure to take responsibility for making sure that the information he was given about the possible brew was shared with other staff. Although he was not - 88 - primarily responsible, given he had not made any direct observations himself, it would be appropriate to reprimand the grievor for failing to take such steps. Decision – Lonsbary [188] I have concluded the employer had just cause to discipline Lonsbary for his failure to properly investigate the noise just before 20:00, for closing the office door for a period of approximately 32 minutes, as well as for his failure to communicate with respect to the possibility of brew on the Unit. I was most concerned about the failure to properly investigate the noise on the unit and the subsequent closing of the office door. The grievor could not adequately explain or justify those decisions, nor was I persuaded that he accepted responsibility for his actions, as I have outlined in detail above. The evidence led me to the conclusion that the grievor did not believe he had been wrong about either decision, or, alternatively, that he was aware he was wrong but was not prepared to admit to his error. [189] The grievor had approximately 11 years of service at the time of his termination. At the time of the hearing he was 47. Prior to this incident he had not received a negative performance appraisal. He received a commendation for his reaction to events when an inmate had died in his sleep. He described the financial impact of the termination as “overwhelming”. - 89 - [190] I have considered the mitigating factors relevant to Lonsbary’s case but have concluded they are not sufficient to permit the variation of the employer’s decision to terminate his employment. In the circumstances, there are lingering issues of trust and failure to accept responsibility that outweigh the mitigating factors. I have concluded that the employment relationship cannot be sustained, and the employer’s decision to terminate Lonsbary is upheld. Grievor #4 - Suzanne Pinkney Allegation 1 - Inappropriate Tours Employer Submissions [191] The employer alleges that Suzanne Pinkney failed to observe a live body during her tours as she did not properly look in the cells. The employer also argued that she failed to ensure that she had a support person in place while conducting her tours. The employer asserted that the policy with respect to having a CO observe the tour from the cage outside the unit was a safety issue. While it appears that some employees do not adhere to the policy all the time, the policy is clear. It is either required or not. The employer argued that the fact that many employees follow the policy most of the time indicates that there is an understanding of the reasonableness of the policy. It is not safe enough for another CO to monitor the tour from the Unit office, where they could be distracted. Standing in the “cage” at the unit perimeter prevents any distractions and - 90 - the presence of the second CO serves as a deterrent to any inmate considering an attack or other misconduct. Union Submissions [192] The union emphasized the grievor’s evidence that during her tours she could see the interior of the cells, and that she also conducted checks that the cell doors were properly locked and the windows undamaged. She testified that she could see into Cell 3, in spite of the partially covered light, and gave un-contradicted evidence that she insisted on having light covers removed when she felt they were impeding her ability to perform her job. The employer asserted that she could not see the interior of the cell, but the only evidence presented was that she could see inside, and she described what she saw. Her tour, in all regards, was identical to that conducted by OM16 Brydges, except she did not have a flashlight. [193] The union argued that the policy with respect to having the support person standing in the cage at all times was not followed at EMDC. For this reason, it would be unfair to discipline Pinkney for conducting her tours in the same manner as other CO's in the institution. Conclusions – Pinkney Allegation 1 - Tours [194] The details of the allegations against Pinkey deal with issues already addressed in the General Findings: Timing of Tours, Presence of Officer in - 91 - Cage/Sally Port, Use of Diester Wand, Inspection of Equipment, Covered Lights in Cells, Use of Flashlights. [195] My review of the video evidence confirms that Pinkney’s security tours were at times consistent with the practice at EMDC that is found throughout the videos and that was described by the testimony of witnesses. However, some of her tours were demonstrably inferior and inadequate. During the tour at 01:03 on November 1, she appears to looking into each cell, in the same manner as Tyler and Lonsbary did that evening. However, during her other tours it is not apparent that she looks in all cells during her tours. As I have outlined in the relevant General Finding, the employer had condoned a standard of security tours that did not require an employee to ascertain whether there was a “live body” in the cell. However, even given such an environment, it would not be reasonable for an employee to assume that there is no need to check on the health or safety of inmates. Pinkney was or should have been aware that she had not been let into the unit to walk the perimeter. Thus, it is my conclusion that the video evidence shows Pinkney’s security tours did not always demonstrate a check of Cell 3, or other cells, and that the employer had just cause to discipline her for this failure. - 92 - Allegation 2 & 3 – Logbooks [196] The employer alleged the grievor misused logbooks on the night in question by collapsing the logs, not making entries with respect to a tour at 2100, leaving gaps in the notations and prewriting entries. [197] The union argued that the grievor’s evidence explains the apparent anomaly in the employer’s allegation with respect to the log entries. Pinkney testified that she did not pre-write the entries but, because the logs were collapsed, she sometimes would not get items logged in time and would have to catch up later. OM16 Brydges was on duty and reviewed the logs and if there had been a gap he would have brought it to her attention if it were a matter of concern. Since he did not, her evidence should be accepted that there was no gap, and she simply came in after the fact to fill in her entries after Brydges had made his. Conclusions re Allegation 2 & 3 - Logbooks [198] The employer did not enforce the policies with respect to logbooks and multiple employees testified to such practices as collapsing the logbooks at night, timing tours on the half-hour, reflecting counts at night, etc. I have found that allegations with respect to logbooks cannot be sustained, and I have addressed this issue in the General Findings: Logbooks. I accept the grievor’s explanation with respect to the entries and find that the employer has failed to prove anything improper in her logbook entries on - 93 - the shift in question. I find there was no just cause for discipline demonstrated for alleged breaches of the misuse of logbooks by Pinkney. Allegation 4 – Leaving Early [199] The evidence indicates that Pinkney left the floor at approximately 06:53 on November 1. She asserted this was standard practice at EMDC that she had followed for some 25 years. This issue is addressed in General Finding Leaving Before End of Shift. In accordance with the reasons outlined in that portion of this decision, it is my conclusion that Pinkney was not subject to discipline for leaving before the end of her shift. Decision – Pinkney [200] After reviewing the evidence, I have concluded that Pinkney conducted sub-standard tours on October 31 shift. [201] In assessing the appropriate penalty, I have considered a number of factors. I do not generally agree with the employer’s assertion that the grievors did not express remorse over what happened to K. Indeed, most spoke quite emotionally about the incident and none more eloquently than Pinkney. She described not just how the events impacted her but spoke about how she thought about K’s family, and what they must have experienced. She put those feelings in the context of feeling that she could have done more, that she had failed, and how she wished she had - 94 - paid more attention. Her comments struck me as sincere and appropriate expressions of remorse. [202] Pinkney’s seniority dates to 1989. Her tours were not adequate, but they were not wholly inconsistent with the nature of tours performed at EMDC. Indeed, one of her tours, as I have noted, struck me as consistent with expectations, while others were not. I have concluded that termination is not appropriate in her case, and I substitute a penalty of a two-week suspension. Pinkey is to be reinstated to her position with compensation, and I remain seized with respect to any issues related thereto. Grievor #5 - Guylee Allegations 1 and 2 – Shift Changeover [203] See General Findings: Shift Changeover. Allegations 3, 4 and 5 – Inappropriate Tours, Wakeup & Cleanup [204] The employer disciplined Guylee for failing to conduct security tours on Unit 6L during his shift at a frequency of no more than thirty minutes, resulting in the inmates being left unattended for a period that was dangerous and unacceptable. The first gap was approximately 40 minutes, between 07:29 and 08:09. The second was 1 hour and 22 minutes, from 08:28 to 09:50. According to the investigation report, Guylee was in unit 6L at the following times during that period: 07:29, 08:09, 08:13, 08:18, 08:28, 09:05 and 09:50. - 95 - [205] The union relied on the fact that Guylee’s actions were consistent with the practices of OM16’s and CO's at EMDC. His evidence was that he did not conduct formal tours until later in the shift because he was in and out of the unit for many reasons starting from the time he opened the cells. The evidence indicates this was also the practice of managers and CO's alike. [206] With respect to the first ‘gap’ of 40 minutes, it is my view that this is not outside the norm for the institution, as set out in the General Finding Timing of Tours. [207] The employer also disciplined Guylee for failing to conduct security tours during the time of the morning wakeup/cleanup process, as well as for failing to properly supervise that process. The employer alleged Guylee failed to accept he had done anything wrong during this time on the morning of November 1, 2013. [208] Guylee can be observed in the video unlocking all the cells on 6L on the morning of November 1 at approximately 08:13. He leaves the day room, and the inmates exit their cells, and most begin to engage in activities related to the daily cleanup. G is seen exiting his cell carrying a bundle of what appear to be sheets. He takes them to the common area. He then returns and proceeds to drag K’s body wrapped in sheets from Cell 3 to - 96 - the shower area. This movement was done quickly, and did not take more than two minutes. [209] The employer also argued that Guylee failed to properly supervise the morning cleanup. Guylee left the day area in the unit and the inmates were alone with access to cleaning equipment that could be used as weapons. Although Guylee suggested he was distracted by the inmates while in the common area outside of the unit office, the video does not appear to support this conclusion. At 08:14 Guylee entered the office and closed the door behind him. The employer asserted this was unacceptable, arguing he should have been supervising the inmates engaged in the morning cleanup, something he could not do from inside the office with the door closed. As the video shows, it was during this time that G moved K’s body to the shower area. [210] The employer submitted that the only error to which Guylee “grudgingly” admitted was to not checking the shower area when he entered the unit. There was no indication, the employer asserted, of any remorse in Guylee’s subsequent statements or his testimony. The employer noted that, when asked in cross-examination if he would have acted differently had he been made aware of the possible brew in Cell 3, Guylee stated that he could not answer the question. This response might have been out of misguided loyalty to Langford and Lonsbary, or it might simply reflect that he was unprepared to deal with serious situations in the jail. - 97 - Whatever the reason, he demonstrated that he was not suitable to act as a CO. [211] The union argued that every witness with knowledge of the practices confirmed that the wake-up procedures relied upon by the employer are not followed at EMDC. The union asserted that the evidence demonstrated that it was appropriate and common for CO's to supervise the morning cleanup process from the Common Room between the two units, in this case units 6L and 6R. CO's have duties to perform in both the Common Room and the Day Rooms, and inmates are in and out of both during the cleanup process. In addition, on the day in question, the video evidence indicates that OM16 Prestage was in the unit office around the cleanup time for approximately 30 minutes. Presumably if there was anything untoward about the way Guylee was conducting himself, Prestage would have drawn that to his attention. Conclusions - Allegations 3, 4 & 5 - Wakeup and Cleanup Procedures [212] In a general sense, the union is correct that the evidence confirms that the employer had condoned a practice with respect to the wakeup and cleanup procedures that was not consistent with written policy. However, there are three failures for which Guylee can be held accountable arising from the events of November 1. - 98 - [213] First, it is clear from the video that Guylee failed to engage in an adequate review of the unit when he opened the doors for the cleanup procedure. The rationale for the lack of formal counts during the morning is that CO's are “in and out” of the unit, and that their constant presence, or “contact” as Guylee described it, has the same or similar impact as formal security rounds. While I accept this may very well have been the basis of the logic upon which the EMDC routine varied from Ministry policy, it is appropriate to hold CO's to a standard consistent with the rationale. The union’s argument is that the written procedure was not followed because employees were required to be in the units frequently during these times and there was no need (or time) for security tours, since the necessary security information could be gleaned while engaging in other tasks. Opening the cells for morning cleanup would be one of those ‘other tasks’ that would bring a CO into the unit during the morning. [214] The logic of this rationale means that employees should be able to demonstrate that they made reasonable use of opportunities to observe and gather information related to the security of the unit and the well-being of the people housed there. To do anything less would be to contradict the logic behind the varied practice, as well as to erode and undermine the security role of CO’s. I would not conclude that the varied practice at EMDC meant that CO's should, for example, open the cells for morning cleanup without regard to the status of those in the cells. Although Guylee testified he made use of “peripheral vision” to look into the cells, there is - 99 - little evidence of this in the video and it struck me as inadequate. Given the reasoning behind the varied practice, I would have expected Guylee to take advantage of the cell-opening process, and other visits to Unit 6L, to gather the same kind of security information that could typically be captured during a formal security round. [215] I have concluded that Guylee failed to perform the morning wakeup procedure appropriately in relation to the differential practice at EMDC. It is clear from the video evidence that he unlocked the cells rapidly and showed no obvious sign that he engaged in any attempt to check on the status of the individuals in the cells. This appears to have been the best opportunity Guylee had that morning to gather meaningful information about the status of the inmates on Unit 6L. In my view, he was subject to discipline for this failure. [216] The second issue that is of concern is the manner in which Guylee oversaw the cleanup procedure. Even allowing for the fact that he had duties that required him to be in both the Common Room and the Day Room, and for the fact that a manager was present for approximately 30 minutes, it is my conclusion that Guylee failed to engage in a reasonable supervision of the cleanup process. I do not believe a CO requires a written policy to understand the risks associated with the cleanup procedure. Inmates have access to cleaning tools, such as mops and brooms, that could be readily used as weapons. Regardless of whether - 100 - the employer enforced the written policy, Guylee can be reasonably expected to understand the risk associated with cleanup, and to demonstrate that he made reasonable efforts to supervise the entire process, both in the units and in the Common Room. My review of the video leads me to conclude that Guylee did not make a reasonable effort to oversee the morning cleanup on 6L on the morning of November 1. He spent most of his time in the Common Room while G was moving K’s body and inmates were engaged in apparent efforts to dispose of evidence of the assault. I have concluded that he was properly subject to discipline for this failure. I do not accept that he was delayed significantly by inmates trying to distract him with questions. Even if the inmates conspired to do so, this strikes me as something a CO should be attuned to and it is not something that should have deterred Guylee from the priority of overseeing the cleanup in all areas. [217] Finally, the grievor conceded that he failed to check on the shower areas when he was in the unit, and that he should have done so. I agree that this was another failure on his part that is confirmed by the video evidence, and that he was properly subject to discipline for this failure. Allegation 6 - Lack of Support at Cage [218] This allegation is addressed in the General Finding Presence of Officer in Sally Port/Cage. - 101 - Decision – Guylee [219] After reviewing the evidence and submissions of the parties I have concluded that Guylee was properly subject to discipline for the way he conducted himself during the morning wakeup and cleanup procedures, as outlined above. [220] Guylee’s failures on November 1, 2013 were serious. The grievor is responsible for a failure to take reasonable steps to oversee the persons under his care, and to gather information about the security of the unit for which he was responsible, as I have described above. His failures can be said to have created or contributed to an opportunity for G and other inmates to tamper with a crime scene. [221] In deciding whether to exercise my jurisdiction to vary Guylee’s termination, I have taken into consideration that, looked at broadly, the way Guylee carried out his duties that morning was consistent with his past practice and the practice at EMDC, and that the employer was aware of this fact but did not discipline the grievor or other employees previously. I have also considered the fact that the grievor has a record of 13 years of service. He is married and has four children. He testified at the hearing that the events of November 1, 2013 have impacted his health, and that he was diagnosed with PTSD. He has suffered financially as well due to the termination, and this has had an impact on his family. I have also - 102 - taken into consideration that Guylee’s failures did not take place leading up to or around the time of the assault on K. Finally, I also considered the penalties imposed on others around this tragedy. [222] I have reached the conclusion that termination was too severe a penalty, and that it would be appropriate to reinstate Guylee to employment, and substitute a suspension for one month. The grievor is entitled to compensation for the remaining period, and I remain seized of any issues related to his reinstatement. Smith and Zavitz – Letters of Reprimand [223] The employer argued that both letters of reprimand issued to Chris Smith and Tanya Zavitz were justified and their grievances should be dismissed. [224] The union responded that every allegation against Smith arose from alleged breaches of policies that the evidence showed were not followed at EMDC. It is, of course, the employer’s right to change practices and to enforce policies, but given the long-standing practices, employees should not be subject to discipline with respect to any policy until it is made clear that past practices must cease, i.e. there must be fair warning that the employer would like employees to comply with the precise terms of the written policy rather than condoned practice. - 103 - [225] With respect to Zavitz, the allegation was that she failed to provide an Occurrence Report for the chokehold incident. The union argued that Langford exercised his discretion to treat the incident as horseplay, and there was no formal misconduct issued against G. In such circumstances, a formal report was not required. Thus, the discipline letter against Zavitz should also be removed. Conclusion re Chris Smith - Letter of Discipline [226] The allegation against Smith was that he failed to conduct security tours as required by Ministry procedures and policies, both with respect to the timing of tours and to providing proper backup in the cage or sally port. [227] The details regarding the timing of tours was that on the morning of November 1, there was a gap of approximately 40 minutes between tours from 07:29 and 08:09, and then a longer period of one hour and twenty- two minutes from 08:28 to 09:50. The first tour is covered in my General Findings: Timing of Tours that tours were not typically conducted in strict compliance with policy, and I have concluded there is no basis for discipline for the grievor for the first ‘missed tour’. [228] The second ‘missed tour’ references the time around the morning meal and clean up period. - 104 - [229] To his credit, Smith agreed that he was responsible for communicating with his fellow CO's about tours. He agreed that he could have done more to communicate with his partner and keep better track of time, stating, “As a team, we are suppose to make sure the tours are done.” In my view, the employer has just cause to reprimand Smith for failing to engage in meaningful supervision of Unit 6L during the period in question. Failure to Attend at Sally Port [230] The allegations with respect to being late to the sally port, related to tours conducted by Guylee when Smith acted as backup. All the allegations entailed delays of between fifteen seconds and one minute. This allegation is covered by the General Finding: Presence of Officer in Sally Port/Cage. Thus, I find that there was no just cause for discipline established with respect to arriving late in the sally port during the five tours performed by Guylee on November 1, 2013. Conclusions - Smith [231] Given the above, I direct that the letter of reprimand issued to Chris Smith dated September 3, 2015 is not sustained to the extent set out above, and any references to the first ‘missed’ tour and the sally port late arrivals should be expunged from the letter of reprimand. Having said that, my review of the letter suggests the wording is more general and does not contain specific reference to either the failure to conduct a tour between 07:29 and 8:09 or the delays in arriving at the sally port, but I remain - 105 - seized with the issue in the event there is any disagreement between the parties. Aside from any such issues, I find the employer had just cause to issue a letter of reprimand. Tanya Zavitz - Letter of Discipline [232] The allegation against Zavitz is that she failed to “address, report, submit an occurrence report and/or log the incident relating to” G placing K in a chokehold. I have already reviewed the details of this incident above in my consideration of Langford’s grievance. I have concluded that the chokehold incident was significant, and that Zavitz failed to respond appropriately. Although she was the outside officer during the incident, she was directly involved in a verbal exchange with G, and she witnessed the subsequent chokehold. She should have submitted an OR and/or made a note in the log. As has already been stated, one of the themes that arises from this case is that effective communication among staff is crucial to maintaining the greatest degree of safety for everyone at the institution. In my view, a reprimand was warranted for her failure to communicate the incident and her grievance is dismissed. Closing Comments [233] I would like to end by offering a few personal observations. This was the most difficult case I have had to undertake as an arbitrator, indeed the most difficult case I have been associated with in my 35 years in labour relations. My thoughts throughout the hearing, and as I was writing this - 106 - decision, often came back to the victim as well as his family and friends, although I do not know any of them. It was painful for me, even as someone removed from these events, to learn how K died. I have thought often how painful it must be for those who knew and were close to him, and who are now burdened with the knowledge of the way he lost his life. I do not think anything I have set out above could ease that pain. But the nature of this case causes me to set aside the law for a moment and offer my most sincere condolences and compassion for anyone reading this decision who knew and cared for K. [234] I would also like to thank the parties who appeared before me in this case. The subject matter was very difficult, but Mr. Shahab and Mr. Holmes, as well as their respective advisors, conducted themselves throughout with dignity and professionalism, and for that I was most grateful. Dated at Toronto, Ontario this 26th day of April 2017. Barry Stephens, Vice-Chair