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HomeMy WebLinkAbout2001-0670.Horan.02-10-23 Decision ~M~ om~o EA1PLOYES DE L4 COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0670/01 UNION#0IA743 01A744 01A745 01A746 01A747 01A748 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Horan) Grievor -and- The Crown In RIght of Ontano (Mimstry of PublIc Safety and Secunty) Employer BEFORE Bram HerlIch Vice-Chair FOR THE UNION John BrewIn Counsel Ryder Wnght Blair & Doyle FOR THE EMPLOYER AJ amu BoardI Staff RelatIOns Officer Mimstry of PublIc Safety and Secunty HEARING June 14 July 16 & 17 August 13 & 26 2002 2 DECISION Kathleen Horan commenced her employment wIth the Mimstry as an unclassIfied CorrectIOnal Officer ("CO") on January 18 1999 at the MetropolItan Toronto West DetentIOn Centre She maIntaIned that status untIl she was dIscharged on June 25 2001 as a result of an IncIdent whIch took place on Apnl 8 2001 FolloWIng her dIscharge, SIX separate gnevances were filed on her behalf They each anse, dIrectly or IndIrectly from the events whIch gave nse to that dIscharge The employer relIes on three related grounds to JustIfy the dIscharge It IS claimed that the gnevor assaulted an Inmate, submItted a false occurrence report, and provIded false InformatIOn to the InVestIgator Although the SIX gnevances filed do raise some other Issues, the partIes agreed to proceed, at least ImtIally solely on the questIOn of whether there was Just cause for dIscIplIne and, If so whether the penalty of dIscharge was Just and reasonable In the CIrcumstances The central event whIch gave nse the dIscharge was the alleged assault. There IS no dIspute that an IncIdent transpIred InvolvIng the gnevor and an Inmate The IncIdent took no more than 60 seconds to unfold. There were three wItnesses/partIcIpants the gnevor the Inmate and Marlene Wickham-Johnson, another CO Both the gnevor and Wickham-Johnson completed reports, were questIOned by the Mimstry InVestIgator and testIfied In the proceedIngs before me TheIr verSIOns of events dIffer markedly The Inmate dId not testIfy However neIther party attnbuted any sIgmficance to that absence of eVIdence For whIle the partIes dIsagreed about many thIngs, It would appear that there was an ImplIcIt agreement between them that the Inmate's eVIdence would lIkely have added lIttle to establIshIng the facts of the case The Inmate was described by both COs as a "specIal needs Inmate" perhaps exhIbItIng behavIOurs 3 consIstent WIth mental health dIfficultIes And whIle Ms Horan and Ms Wickham- Johnson presented dIfferent accounts of theIr personal expenences wIth thIS Inmate (Ms Wickham-Johnson apparently havIng personally encountered fewer dIfficultIes wIth her than the gnevor may have) they both presented a pIcture of an Inmate who could be and frequently was, uncooperatIve, non-commumcatIve or overly commumcatIve, verbally abusIve and, at least potentIally vIOlent. In those CIrcumstances It IS not surpnSIng that neIther party vIewed the faIlure of the Inmate to testIfy as sIgmficant. The undIsputed pIcture paInted of the Inmate IS consIstent WIth the conclusIOn that her eVIdence would, In all lIkelIhood, have been Inherently unrelIable Thus, the factual determInatIOn regardIng what precIsely transpIred dunng the IncIdent In questIOn IS left to be determIned on the basIs of the two conflIctIng versIOns offered by the gnevor and Ms Wickham-Johnson. Consequently as the partIes IndIcated at the very outset and largely repeated dunng theIr final submIssIOns, findIngs of credIbIlIty wIll be cntIcal to the outcome of the case Put somewhat dIfferently as the umon dId, my assessment of the veracIty ofMs Wickham-Johnson's versIOn of events wIll be cntIcal to any determInatIOn as to whether the employer has met ItS burden of establIshIng Just cause Before proceedIng to outlIne my findIngs In respect of the IncIdent, I wIll provIde some background and context. FIrst, I note that whIle the central event In thIS case unfolded In a mInute or less, the partIes felt It necessary to canvass a much broader scope of eVIdence The heanng took some five days to complete In addItIOn to dIrect eVIdence pertaInIng to the central events, eVIdence was presented to outlIne In fairly elaborate detaIl, all of the reports vanous IndIVIduals were reqUIred to complete as well as the contents of InVestIgatIOn meetIngs held wIth the gnevor Ms Wickham-Johnson and others The breadth of the eVIdence thus canvassed permItted the wItnesses to be cross- examIned, not only In relatIOn to theIr dIrect verSIOns of the events In questIOn, but also In 4 respect of the vanous denvatIve reports they prepared and statements they made to the InVestIgator subsequent to those events And whIle that process undoubtedly served to protract the proceedIngs, It also offered enhanced opportumtIes to test the credIbIlIty of the chIef wItnesses I also note that there IS a broad range of dIscrepancIes between the eVIdence of the gnevor and that ofMs Wickham-Johnson. They Include dIfferent verSIOns, not only of the central event, but also In relatIOn to events whIch preceded and followed It. There IS, not surpnsIngly a broad range of levels of sIgmficance whIch attaches to these dI screpanCI es Some In partIcular In relatIOn to relatIvely mInor detaIls, are most lIkely sImply the product of faulty or Incomplete recollectIOn In relatIOn to relatIvely InsIgmficant matters The dIffenng verSIOns of the cntIcal 60 seconds are, of course, central to the outcome of the case and to my findIngs of credIbIlIty Further I am satIsfied that those cntIcal 60 seconds (regardless of whose verSIOn of those events IS accepted) would have been perceIved and understood as they were unfoldIng as sIgmficant and unusual Thus, It IS less lIkely In my VIew that dIscrepancIes In the wItnesses' accounts of these events are to be explaIned by faulty or Incomplete recollectIOn. There are further dIscrepancIes In the eVIdence whIch, whIle not dIrectly related to the cntIcal 60 seconds, cannot be descnbed as beIng In relatIOn to tnflIng or InsIgmficant matters In arrIvIng at my ultImate findIngs of fact and In performIng the assessment of credIbIlIty reqUIred for those findIngs, I have, although I have not catalogued them all In Intncate detaIl, consIdered all of these dIscrepancIes I have also made every effort to consIder the nature and extent of IndIVIdual dIscrepancIes and, In partIcular the lIkelIhood of Innocent or bemgn explanatIOns for those dIscrepancIes In assessIng the eVIdence of the wItnesses who testIfied, I have consIdered all of the usual factors the demeanour of the wItnesses when gIVIng theIr eVIdence theIr apparent desIre to tell the truth and to resIst the tug of self-Interest, the abIlIty of theIr testImony to wIthstand the test of cross-eXamInatIOn and, of course, sImply what seems most probable or lIkely In the CIrcumstances 5 I begIn by fOCUSIng on and bnefly outlImng the dIfferent verSIOns of what transpIred dunng the cntIcal 60 seconds On the day In questIOn the gnevor was assIgned to general dutIes Ms Wickham- Johnson was workIng a four-hour ShIft In the women's segregatIOn area of the facIlIty As the general dutIes officer the gnevor performed a number of tasks and, among them, was responsIble for provIdIng relIef to the officer on duty In the segregatIOn area. There IS no questIOn that the gnevor provIded Ms Wickham-Johnson wIth relIef on the day In questIOn. There IS a dIspute, however about precIsely how and In what CIrcumstances the gnevor came to provIde that relIef The precIse manner In whIch that transpIred IS, In the general scheme of thIngs, largely Irrelevant to my determInatIOn. I pause, however to reJect the suggestIOn made by the employer that the gnevor delIberately encouraged a reluctant Ms Wickham-Johnson to take her break so as to specIfically provIde the gnevor wIth the opportumty to enter the Inmate's cell and to assault her In that regard, I note that the event I am about to descnbe, whIch the employer charactenzed as an assault, only took place after the gnevor called for backup pnor to entenng the Inmate's cell And It was Ms Wickham-Johnson who returned from her break to provIde that backup If the gnevor had acted In a calculated and premedItated fashIOn, I find It hIghly unlIkely that she would have gone to the trouble to procure a wItness to her Inappropnate actIvIty It IS pnmanly for that reason that I reJect the employer's suggestIOn of a cold and calculated assault. I note further however that whIle I have reJected thIS suggested verSIOn of the events, the employer's case and ItS JustIficatIOn for the dIscharge dId not rest exclusIvely or even pnmanly on that contentIOn. The altercatIOn wIth the Inmate began when the gnevor and Ms Wickham- Johnson approached the cell Ms Wickham-Johnson was provIdIng backup and was In posseSSIOn of the keys She opened the cell door to permIt the gnevor to enter and wItnessed the subsequent events from her vantage pOInt standIng at the opened cell door 6 Ms Wickham-Johnson's descnptIOn of the events whIch followed was relatIvely consIstent throughout - from the occurrence report she prepared shortly thereafter to the accounts she provIded to the InVestIgator and culmInatIng In the VIva voce eVIdence she provIded before me She watched the gnevor enter the cell the Inmate was standIng. The gnevor said to the Inmate "I told you to stop yellIng" The gnevor moved her hand, the Inmate stepped backward, the gnevor moved her hand and the Inmate fell to the floor From her lImIted vantage pOInt, Ms Wickham-Johnson was unable to observe any physIcal contact between the gnevor's hand and the Inmate She had no dIfficulty however observIng what transpIred next. The gnevor kicked the Inmate tWIce between her legs When the Inmate closed her legs, began to yell and rolled over the gnevor agaIn kicked her thIS tIme on her lower back above the buttocks The gnevor then eXIted the cell and Ms Wickham-Johnson secured the cell door The gnevor's verSIOn of events IS dIfferent. The Inmate was relatIvely qUIet at the tIme that the gnevor relIeved Ms Wickham-Johnson. But, from the moment the Inmate saw the gnevor performIng her rounds In the segregatIOn area, she began a course of Incessant yellIng. WhIle thIS conduct was not necessanly atYPIcal of the Inmate, the gnevor testIfied that thIS Incessant yellIng was creatIng a sIgmficant dIsturbance and annoYIng the other Inmates (I have no doubt that It was annoYIng the gnevor) It was In response to thIS that the gnevor determIned to enter the Inmate's cell In an effort to manage her behavIOur And It was for that reason that she sought backup (in accordance wIth acknowledged polIcy regardIng cell entry) But the competIng verSIOns of the cntIcal events begIn to dIverge vIrtually at the very moment when Ms Wickham-Johnson unlocked the cell door to permIt the gnevor's entry The gnevor testIfied that when she entered the cell the Inmate, who had been crouchIng on the mattress on the floor Jumped up suddenly The gnevor told her to SIt down. The Inmate dId not respond but was mOVIng and agItated. The gnevor placed her left hand on the Inmate's nght shoulder and "gUIded" her down to the mattress She then placed her nght foot on the Inmate's left thIgh In an effort to keep her stIll The Inmate, however contInued to move and was tryIng to roll away The gnevor watched her 7 movIng and, realIzIng that her effort was futIle consequently took her foot off the Inmate, told her she had to stop screamIng, looked at Ms Wickham-Johnson and said "thIS IS ndIculous, let's go" and left the cell In her eVIdence and In the other accounts she provIded (her occurrence report and the IntervIew WIth the InVestIgator as well as at the "allegatIOn meetIng") the gnevor provIded some explanatIOn and context for her conduct on the day In questIOn. FIrst, and as already alluded to the gnevor IndIcated that she belIeved the Inmate's Incessant yellIng warranted some InterventIOn. She explaIned how pnor to entenng the Inmate's cell or to even seekIng the necessary backup to do so she made efforts to commumcate wIth the Inmate wIth a VIew to managIng her loud and dIsruptIve vocal performance These efforts were, however largely Ignored by the Inmate who moved around In her cell to aVOld the lImIted lIne of sIght avaIlable to the gnevor through the small WIndow surface on the door of the cell Although the gnevor was reluctant to open the hatch on the cell door - because the Inmate was not averse to throwIng thIngs out the hatch - she dId so In order to facIlItate commumcatIOn wIth the Inmate But the Inmate contInued to Ignore her and sImply Increased her volume (There are perhaps some unresolved questIOns about how much of a dIsturbance the Inmate mIght actually have been creatIng by yellIng through the closed cell door If the gnevor had to open the hatch to commumcate wIth the Inmate But I note that, In cross-eXamInatIOn, the gnevor InsIsted that her efforts at commumcatIOn had been made through the closed metal door of the cell and that she had not opened the hatch - a pOInt to whIch I shall return.) It was In response to thIS that the gnevor determIned to enter the cell In order to be able to commumcate more dIrectly and effectIvely wIth the Inmate I wIll have more to say later about the gnevor's motIvatIOn In determInIng to enter the cell As already set out, the gnevor (at least In her eVIdence In chIef - agaIn a pOInt to whIch I shall return) acknowledged that she had "gUIded" the Inmate down to the 8 mattress on the cell floor by puttIng her left hand on the Inmate's nght shoulder to do the "gUIdIng" - clearly an applIcatIOn of force though, on the gnevor's verSIOn In VIva voce eVIdence, certaInly a relatIvely margInal one But the gnevor categoncally demed havIng kicked the Inmate She dId, however agaIn In her examInatIOn-In-chIef, provIde some further context for her unusual techmque InvolvIng, as she put It, the applIcatIOn of her nght foot to the Inmate's left thIgh, In an effort to keep the Inmate stIll so that she could be spoken to She explaIned that she had been Involved In an IncIdent some ten months earlIer In whIch an Inmate had bItten a fellow CO drawIng blood and caUSIng a relatIvely senous InJury The gnevor explaIned that thIS was qUIte a fnghtemng IncIdent. Inmates can be placed In the segregatIOn area because they have refused to see a doctor or to be tested for InfectIOus dIseases The gnevor was therefore concerned about puttIng herself at nsk of death or dIsease Just because, as she put It, an Inmate has lIttle or no grasp of realIty Thus, as the Inmate had resIsted her efforts to get her to SIt down, the gnevor next used her foot so as not to leave her arm exposed In her efforts to control the Inmate and to have her SIt stIll I turn now to bnefly examIne some of the events whIch followed upon the altercatIOn In the Inmate's cell FIrst, I note that the events Just descnbed were followed very shortly thereafter by a return VISIt InsIde the Inmate's cell And whIle there are dIscrepancIes In the respectIve descnptIOns of the gnevor and Ms Wickham-Johnson about thIS second VISIt, I do not find It necessary to fully resolve those competIng verSIOns EssentIally almost ImmedIately after the gnevor had eXIted the cell and the door had been secured by Ms Wickham-Johnson, the Inmate began to shout, claimIng that she was bleedIng. The gnevor then re-entered the cell wIth Ms Wickham-Johnson agaIn provIdIng backup At the behest of the gnevor the Inmate removed her pants The gnevor observed that the Inmate (who accordIng to documents filed was born In 1947) appeared to be menstruatIng and Ms Wickham-Johnson observed a lIttle blood on her underwear Whatever the source of thIS lImIted bleedIng may have been, It was not suggested that there was any 9 specIfic Impropnety assocIated wIth the second entry to the cell Further It was not suggested that the Inmate suffered any senous InJury as a result of the earlIer altercatIOn. A subsequent accIdent/inJury report completed, In part, by the facIlIty's nurse after examInIng the Inmate on the day In questIOn concluded that no InJunes were found. Shortly after the second cell entry Ms Wickham-Johnson left the umt. AgaIn, there are competIng verSIOns as to precIsely how or why that transpIred. Ms Wickham- Johnson testIfied that her dIsapproval of the manner In whIch the gnevor had handled the sItuatIOn, whIch, she said, she commumcated to the gnevor led to her departure from the umt. The gnevor ascnbed less lofty motIves to the departure, suggestIng Ms Wickham- Johnson preferred gOSSIpIng at the lobby desk to performIng her dutIes In the segregatIOn area. In cross-eXamInatIOn, the gnevor's explanatIOn ofMs Wickham-Johnson's departure was perhaps slIghtly more chantable For at that pOInt she merely claimed to be sImply unable to provIde any reason for Ms Wickham-Johnson's departure She dId, however take the opportumty as part of that InabIlIty to explaIn the absence, to assert that Ms Wickham-Johnson was on a four hour ShIft and took a one hour break. It IS clear however that neIther the gnevor nor Ms Wickham-Johnson was In any hurry to record or report any of the events Just descnbed. And whIle they both, ultImately prepared wntten occurrence reports detaIlIng the events, neIther of them ImtIated the transmISSIOn of InformatIOn about the events to the employer The log book, whIch COs are reqUIred to maIntaIn, contaInS no mentIOn whatever of the altercatIOn or cell entnes It would appear that the first log book entry made by the gnevor was at 1640 hrs, shortly after she first relIeved Ms Wickham-Johnson. The gnevor's last log book entry on that day was made approxImately one hour later It was dunng thIS one-hour penod that the gnevor first relIeved Ms Wickham-Johnson, then had her return to the segregatIOn area and secured her assIstance as backup for the cell entry whIch precIpItated the altercatIOn whIch took place at approxImately 1700 hrs 10 With one exceptIOn, all of the gnevor's log book entnes from 1640 hrs to 1720 hrs make note of the Inmate's screamIng. At 1710 hrs the gnevor made an entry (in both the log book and In the Inmate InformatIOn Sheet) IndIcatIng that the she had turned off the Inmate's water after what appeared to be unne was seen leakIng out from under her cell door ThIS entry was made shortly after the altercatIOn and after Ms Wickham- Johnson had left the segregatIOn area for the second tIme At about the same tIme, the gnevor called the General Duty OperatIOnal Manager Capt. Partndge, to advIse that she had turned off the water In the Inmate's cell The gnevor made no mentIOn of the altercatIOn In eIther the log book or In the Inmate InformatIOn Sheet or In the telephone call to Capt. Partndge As a result of the call, Capt. Partndge vIsIted the segregatIOn area shortly thereafter - her entry In the log book IS marked at 1738 hrs - by thIS tIme Ms Wickham- Johnson had also returned to the segregatIOn area. NeIther the gnevor nor Ms Wickham-Johnson took the opportumty to report any detaIls of the altercatIOn to Capt. Partndge at that tIme And, sImIlarly whIle Capt. Partndge dId have occaSIOn to have a dIscussIOn wIth the Inmate at that tIme there IS nothIng In the CaptaIn's log book entry or subsequent report or In the eVIdence of the gnevor or Ms Wickham-Johnson (to the lImIted extent they were able to hear the conversatIOn between the Capt. Partndge and the Inmate) to suggest that the Inmate made any ImmedIate complaInt about her treatment by the gnevor It was, however clear from both the CaptaIn's report and from Ms Wickham-Johnson's eVIdence that the Inmate was, perhaps unusually upset about somethIng. Capt. Partndge advIsed the Inmate that they could talk further later when the Inmate had settled down. Less than an hour later at 1830 hrs, Deputy Supenntendent Close dId an on-call tour of the segregatIOn area. Her entry In the log book and her subsequent wntten report both IndIcate that the Inmate complaIned, at that tIme, that she had been assaulted. By thIS 11 tIme the gnevor had left the segregatIOn area although Ms Wickham-Johnson was stIll on duty In the area. Deputy Supenntendent Close reported thIS allegatIOn to Capt. Partndge who In turn, summoned the gnevor to her office, advIsed her of the allegatIOn and dIrected her to complete an occurrence report. In the Intenm Deputy Supenntendent Close had arranged for the Umt Manager Ms Dvorak to take the Inmate to the health care umt to be examIned. (As IndIcated earlIer no InJunes were found.) On her return to the segregatIOn area, Ms Dvorak checked the log book to see who had been on duty In the area and determIned that to be Ms Wickham-Johnson. Ms Dvorak found Ms Wickham-Johnson, who by thIS tIme had left the segregatIOn area on completIOn of her ShIft but was stIll In the InstItutIOn. The two dIscussed the Inmate's allegatIOns Ms Wickham-Johnson confirmed that the altercatIOn had taken place dunng her ShIft and that the gnevor had kicked the Inmate Ms Wickham-Johnson was Instructed to complete an occurrence report. The precIse cIrcumstances and sequence of events whIch next followed IS dIfficult to accurately reconstruct, gIven the vanatIOns of the eVIdence of the gnevor and Ms Wickham-Johnson. There IS no questIOn, however that these two COs dIscussed the contents of the occurrence reports they were prepanng pnor to completIng and filIng those reports It IS equally clear that the gnevor had the benefit of readIng Ms Wickham- Johnson's completed occurrence report before finalIzIng her own. From that pOInt forward, the employer's InVestIgatIOn of the events In questIOn proceeded. Among the vanous documents put before me by the partIes were the two occurrence reports Just referred to Ms Dvorak's AccIdent/InJury report referred to earlIer Capt. Partndge's report dated Apnl 9 2001 a further report from Ms Dvorak dated Apnlll 2001 and a report by Ms Close dated Apnl19 2001 Also filed were the InVestIgator's notes of IntervIews held wIth the gnevor (on Apnlll 2001) wIth Ms Wickham-Johnson (on Apnl 9 and 21 2001) and wIth Ms Dvorak (on Apnl 9 2001) On 12 June 8 2001 an "allegatIOn meetIng" was held wIth the gnevor and a umon representatIve Two separate sets of notes of that meetIng were entered as exhIbIts FolloWIng that meetIng, the gnevor's employment was termInated by letter dated June 25 2001 HavIng carefully revIewed all of the eVIdence I am satIsfied that Ms Wickham- Johnson's verSIOn of events IS to be preferred to that offered by the gnevor and, consequently where those verSIOns conflIct I have accepted the eVIdence ofMs Wickham-Johnson and reJected that of the gnevor I have not come to that conclusIOn lIghtly SInce, as counsel both acknowledged, the result of thIS case hInges pnncIpally If not exclusIvely on my findIngs of credIbIlIty The reasons whIch have led me to reJect the gnevor's eVIdence Include the folloWIng. FIrst, I dId not find the gnevor' s general demeanour to InSpIre confidence In her sIncenty She presented her eVIdence In what can be descnbed as a cautIOus and calculatIng fashIOn, frequently ImpreSSIng WIth the very economy of InformatIOn dIvulged. For example, In relatIOn to the preparatIOn of the occurrence reports Just adverted to she presented a verSIOn of events In chIef whIch would lIkely have led even the most careful lIstener to erroneously conclude (even though she had not explIcItly made the claim) that she had completed her occurrence report before seeIng the one prepared by Ms Wickham-Johnson And whIle thIS manner of presentatIOn, bordered, at tImes, on coy she was also capable, perhaps at the moments when her capacIty for restraInt was tested, to respond In cross-eXamInatIOn wIth a VIgOur marked by ItS venom For example, when asked why If she was concerned about beIng bItten, she had put her hand on the Inmate's shoulder to "push" or "gUIde" her down to the floor the gnevor responded wIth a cymcal flounsh "well I wouldn't be able to put my foot on her shoulder would I?" A sImIlar contemptuous response emerged when, confronted wIth some of the peculIantIes of her eVIdence relatIng to her response to Ms Wickham- Johnson's report (a pOInt to whIch I shall return), the gnevor finally responded "I was 13 confused by other thIngs - basIcally everythIng - and what specIfically would you lIke to ask me about, SIr?" But these are merely examples related to the gnevor's demeanour whIle testIfYIng whIch lead me to be somewhat cIrcumspect In acceptIng her eVIdence There are more sIgmficant dIfficultIes wIth the substance of the gnevor's eVIdence whIch have caused me concern. Of partIcular concern was the gnevor's abIlIty demonstrated on more than one occaSIOn, to be flexIble In the account of events she choose to advance at dIfferent pOInts - both In events leadIng up to the heanng and In her eVIdence before me Perhaps the most startlIng such example related to the evolutIOn of her account of pushIng or gUIdIng the Inmate to the floor Just pnor to the physIcal contact between the gnevor's foot and the Inmate on the mattress on the floor In her occurrence report, prepared wIthIn hours of the IncIdent, the gnevor wrote "[the Inmate] appeared very unstable and would not comply wIth my orders to lIe down on her mattress After ordenng [the Inmate] several tImes, I pushed her down onto the mattress and attempted to hold her In place wIth my nght foot" Two days later she told the InVestIgator that she had dIrected the Inmate to SIt but "She dIsregarded my thIrd or fourth order I then placed my left hand on her nght shoulder she was resIstIng but I managed to SIt her down on the mattress and held her I then placed my nght foot on her left outer thIgh to prevent her from JumpIng up " At the allegatIOn meetIng, the gnevor stated "I dIdn't push her to the mattress, I gUIded her to the mattress" In her eVIdence In chIef she repeated her contentIOn that she had "gUIded" the Inmate down to the mattress ThIS evolvIng account of one of the key moments In the event IS sIgmficant for two reasons FIrst, and I accept the employer's submIssIOns on thIS pOInt, It represents a contInuIng effort to paInt the events In as Innocent a lIght as possIble whIle stIll attemptIng to maIntaIn some consIstency WIth Ms Wickham-Johnson's verSIOn. Perhaps more IntnguIng, however IS the gnevor's ImtIal use of the word "push" and her 14 subsequent reVISIOmst effort to repudIate that word. I wIll return to the more general questIOn of the gnevor's contntIOn, or lack thereof It was clear to me, however that perhaps the most heartfelt regret she expressed dunng the proceedIngs was In relatIOn to havIng used the word "pushed" In her occurrence report. In an utterly unconvIncIng effort to explaIn why she had used the word, she suggested that she was so confused by the contents ofMs Wickham-Johnson's report (whIch, It wIll be recalled, she revIewed pnor to completIng her own) that she wrote the word "pushed" wIthout thInkIng about Its connotatIOns and added that she now feels that what she dId was not "pushIng" It IS perhaps the Irony assocIated wIth the gnevor's effort to recast events whIch fuels the sIngular sIncenty of her regret at havIng used the word pushed. Ms Wickham- Johnson's report makes no mentIOn of any pushIng or other physIcal contact pnor to the Inmate beIng on the mattress SImIlarly whIle, In her VIva voce eVIdence, Ms Wickham- Johnson testIfied to seeIng the gnevor move her hand In the Inmate's dIrectIOn and the Inmate subsequently on the mattress, she readIly and candIdly acknowledged to not havIng seen any actual dIrect contact between the gnevor and the Inmate at that tIme WhIle one mIght readIly Infer such contact from her eVIdence Ms Wickham-Johnson was not the source of any dIrect and specIfic eVIdence of that contact. From that perspectIve, the gnevor's claim that the contents ofMs Wickham-Johnson's report confused her and led her to use the word pushed IS devOld of any ratIOnal explanatory value One mIght, however understand the gnevor's regret at USIng the word "pushed" and thereby havIng perhaps been the sole source of any dIrect and specIfic eVIdence of that physIcal contact between her and the Inmate But thIS was not the only occaSIOn upon whIch the gnevor demonstrated flexIbIlIty In her abIlIty to recast events The gnevor descnbed the events whIch led up to her decIsIOn to enter the Inmate's cell The heavy metal door of the cell was eqUIpped wIth a small WIndow area permIttIng a lImIted VIew WIthIn the cell and wIth a small hatch whIch could be opened to facIlItate commumcatIOn. As I have already detaIled, the gnevor was qUIte clear In 15 chIef, that SInce she couldn't hear the Inmate very well wIth the hatch closed, she had opened It In an effort to commumcate wIth her And yet, at the allegatIOn meetIng, held some two months after the IncIdent, In one of the very few Instances where the gnevor even remotely acknowledged In any fashIOn that her conduct had been problematIc, she conceded that, In retrospect, she used bad Judgment In entenng the cell - she should have attempted to talk to the Inmate through the hatch and perhaps wntten a report and called for a supervIsor rather than entenng the cell I should note, however that lImIted conceSSIOn on her part was never coupled wIth any acknowledgment of Impropnety wIth respect to her actIOns InsIde the cell When asked In cross-eXamInatIOn to explaIn the Import of the statement at the allegatIOn meetIng, the gnevor IndIcated that she meant that she should have attempted to talk to the Inmate by opemng the hatch rather than through the closed metal door When remInded, on cross-eXamInatIOn, that she had earlIer testIfied that she had, In fact, opened the hatch and spoken to the Inmate through It, the gnevor made ImtIal efforts to deny that she had gIven that eVIdence but then promptly and sImply dIsavowed her earlIer testImony WhIle thIS partIcular demonstratIOn of flexIbIlIty was In relatIOn to aspects of the eVIdence much less sIgmficant than the "pushIng" I was Impressed by how qUIckly and apparently convemently the gnevor was able to repudIate her earlIer clear and specIfic testImony There were further aspects of the gnevor's eVIdence whIch caused me concern, or sImply dId not nng true I was Impressed by the ease, Indeed the eagerness, wIth whIch the gnevor was prepared to ascnbe nefanous motIves, blame or fault to others - for example to Ms Wickham-Johnson for In the gnevor's VIew shIrkIng her dutIes SImIlarly whIle I have no doubt that the Inmate In questIOn IS a dIfficult one to manage, the gnevor's descnptIOn struck me as undoubtedly hyperbolIc The gnevor frankly presented herself as someone who was generous In ascnbIng blame to others but mIserly when It came to acceptIng any personal responsIbIlIty 16 I was also troubled by the competIng explanatIOns as to why after the altercatIOn wIth the Inmate, It was Ms Wickham-Johnson, who unlIke the gnevor was assIgned exclusIvely to the area, was the one who left the segregatIOn area. Ms Wickham-Johnson testIfied that, after the first cell entry she expressed her dIsapproval of the gnevor's conduct. The two however as already outlIned, returned to the cell almost ImmedIately Ms Wickham-Johnson testIfied that, after that second entry she was In shock and asked the gnevor to leave the area. The gnevor refused. Ms Wickham-Johnson said she would not remaIn wIth the gnevor and so Ms Wickham-Johnson left. Apart from castIng unfounded asperSIOns on Ms Wickham-Johnson's work ethIc, the gnevor offered no credIble explanatIOn as to why Ms Wickham-Johnson, who was the on-duty CO In the segregatIOn area, would sImply have left her post. I am thus much more attracted to the verSIOn offered by Ms Wickham-Johnson that she left, essentIally because of her dIscomfort and dIspleasure wIth the gnevor's conduct. There IS also an aspect of the gnevor's response to the InVestIgator whIch I find IllumInatIng. For whIle she ultImately acknowledged that she ought to have wntten an occurrence report on her own ImtIatIve before beIng dIrected to do so by her employer the gnevor wIth one possIble exceptIOn, offered no explanatIOn for not havIng done so The exceptIOn IS to be found In one of her responses to the InVestIgator She descnbed Capt. Partndge's VISIt to the segregatIOn area shortly after the altercatIOn "Ms Partndge dId her tour and spoke to [the Inmate] for a few mInutes, sIgned the book and left wIthout saYIng or mentIOmng anythIng to me I was prepared to wnte a report If It was requested of me, however It wasn't. ThIS furthered my belIef that It was a non-Issue" In other words, whIle the gnevor perhaps now acknowledges that an occurrence report was warranted, her VIew at the tIme was, qUIte sImply so long as no one else raised the matter It was a "non-Issue" FInally wIth respect to the portIOns of the gnevor's eVIdence whIch have caused concern, I turn to her descnptIOn of the events Ms Wickham-Johnson descnbed as "kickIng" whIch the gnevor has demed. 17 The gnevor's verSIOn of events sImply lacks the nng of truth. One need not go much further than the gnevor's own words In her occurrence report. She wrote [the Inmate] appeared very unstable and would not comply wIth my orders to lIe down on her mattress After ordenng [the Inmate] several tImes, I pushed her down onto the mattress and attempted to hold her In place wIth my nght foot. COl Wickham-Johnson was outsIde the cell and my back was to her [The Inmate] contInued her movements and yellIng, and my foot slIpped several tImes I exerted some pressure to hold her stIll After tellIng [the Inmate] that her screamIng was dISruptIng others, and to stop It, I eXIted the cell ThIS entry warrants at least two comments FIrst, the specIfic reference to the relatIve posItIOns of the gnevor and Ms Wickham-Johnson and, In partIcular the assertIOn that the gnevor's back was to Ms Wickham-Johnson, IS so entIrely superfluous to the narratIve chaIn of events, that It seems to have been Included for the sole purpose of undermInIng any claim Ms Wickham-Johnson mIght have made to have seen what transpIred (agaIn, It wIll be recalled that the gnevor revIewed Ms Wickham-Johnson's report before filIng her own) But perhaps of greater sIgmficance, apart from the dubIOus techmque of a CO tryIng to secure an Inmate by means of a foot, the descnptIOn " my foot slIpped several tImes I exerted some pressure to hold her stIll" IS clearly crafted to establIsh a verSIOn devOld of any culpabIlIty whIch, all the same, exhIbIts some kInd of compatIbIlIty wIth that ofMs Wickham-Johnson. And whIle that may have been a delIberate tactIc adopted by the gnevor neIther can It be Ignored that the words chosen can easIly and sImply be seen as nothIng more than a delIcate euphemIsm for "kickIng" In VIew of all of the above, I have been unable to repose great confidence In the gnevor's eVIdence or her verSIOn of events By contrast, I found Ms Wickham-Johnson to be truthful and consIstent In her recItatIOn of events She had no reason to lIe about the events she descnbed and no such reason was posIted In the umon' s argument. I found her 18 restraInt compellIng - she felt no need to eIther say she had wItnessed the gnevor pushIng the Inmate or to even conclude that had happened based upon what she had seen. Her testImony rang true and furnIshed a pIcture of the events whIch IS much more lIkely or probable than that paInted by the gnevor It IS for these reasons that, at least In the plentIful occaSIOns of theIr conflIct, I have reJected the gnevor's eVIdence and accepted that ofMs Wickham-Johnson. In VIew of that eVIdence I am satIsfied, on the basIs of clear and cogent eVIdence that, on a balance of probabIlItIes, the gnevor dId (in however mInor a fashIOn and wIth no resultIng InJunes) assault the Inmate and was subsequently less than truthful about what had taken place In all lIkelIhood and theIr very sImplest, the events can be descnbed as follows The Inmate In questIOn IS dIfficult to manage and (for reasons I neIther know nor need not speculate about) has a partIcular dIstaste for the gnevor That IS why the gnevor IndIcated that she lIked to stay as far away from thIS Inmate as possIble - for whenever the Inmate saw her the former would Invanably begIn to scream and hurl verbal abuse On the day In questIOn, the gnevor had no nefanous premedItated plan In place to "get" the Inmate However when the Inmate saw the gnevor (after the latter had relIeved Ms Wickham- Johnson) the Inmate dId begIn a course of Incessant yellIng. ThIS conduct annoyed and agItated the gnevor who determIned (exhIbItIng, as she later acknowledged, poor Judgement) to enter the Inmate's cell It IS unlIkely that, pnor to entenng the cell, she had formed any clear IntentIOn to assault the Inmate However once InsIde, the Inmate's ongOIng screamIng, physIcal evaSIOn, lack of attentIOn or submIssIOn to the gnevor's authonty produced the peak of the gnevor's frustratIOn and resulted In a loss of control whIch culmInated In a push and a few SWIft kicks admInIstered to the Inmate Of course, the fact that I have found that the gnevor has Indeed commItted the InfractIOns for whIch the employer chose to termInate her employment, IS not necessanly entIrely dISposItIve of the case In these cIrcumstances, however the employer argued 19 and the umon acknowledged that there are sIgmficant statutory lImItatIOns upon my remedIal authonty SectIOn 7(4) of the Crown Employees Collective Bargaining Act provIdes In substItutIng a penalty under subsectIOn 48(17) of the Labour Relations Act, 1995 the Gnevance Settlement Board shall not provIde for the employment of an employee In a posItIOn that Involves dIrect responsIbIlIty for or that provIdes an opportumty for contact wIth resIdents In a facIlIty or wIth a clIent If the Board has found that the employee, (a) has applIed force to a resIdent In a facIlIty or a clIent, except the mImmum force necessary for self-defence or the defence of another person or necessary to restraIn the resIdent or clIent There was no dIspute between the partIes that, If I were to make the factual findIngs I have now made thIS sectIOn would apply to these proceedIngs But whIle I am thus precluded from eXerCISIng dIscretIOn In a fashIOn whIch would offend the statutory lImItatIOn Just set out, It IS stIll open, If I am persuaded that It IS Just and reasonable to do so for me to SubstItute some other penalty for the dIscharge It IS precIsely that whIch the umon urges me to do There IS, of course, no want of authonty for the unsurpnsIng proposItIOn that physIcal abuse of a resIdent or Inmate can warrant dIscharge (see for example Hunt 1683/87 (Spnngate) Re Government of Province of British Columbia and British Columbia Government Employees Union (Correctional Services Component) (1987) 27 L.AC (3d) 311 (Hope) and Bedeau et a152/83 (JollIffe) Indeed, even the authontIes relIed on by the umon hIghlIght the senous nature of such conduct. In Sindall Talbot, 164/96 et al (Gray) thIS Board observed as follows (at page 25) 20 Any IncIdent In whIch an employee uses unJustIfied force on someone IS a matter of grave concern. Such conduct IS Illegal It exposes the employer to potentIal lIabIlIty And It hardly advances the correctIOnal purpose of a correctIOnal InstItutIOn to have correctIOnal officers engagIng In Illegal conduct toward Inmates who are Incarcerated because they are alleged or have been found to have engaged In Illegal conduct. However despIte the gravIty of thIS type of offence, mItIgatIng factors have been consIdered and, In some cases, have resulted In a SubstItutIOn of some other penalty for dIscharge In the Sindall case the two gnevors were Involved In escortIng a handcuffed Inmate to the segregatIOn area after the Inmate had been Involved In an altercatIOn wIth a fellow Inmate The Inmate was abusIve and physIcally resIsted hIS escorts Indeed, the Inmate's aggressIve kick brought the three to the floor Vice-Chair Gray concluded, however that each of the gnevors had, to some extent, engaged In an Improper use of force In determInIng whether dIscharge was the appropnate penalty Vice-Chair Gray consIdered two pnor cases In Hunt cIted earlIer the gnevor a resIdentIal counsellor at a facIlIty for developmentally handIcapped adults, was (in addItIOn to subsequently beIng dIscharged for other IncIdents) Issued a wntten repnmand for hIS conduct. He had tWIce rapped a resIdent on the head wIth hIS knuckles three tImes In response to the resIdent havIng pulled hIS hair No InJury resulted from what was clearly an Improper use of force The sIgmficance of the case for Vice-Chair Gray was that It Illustrated an IncIdent of unJustIfied use of force that the employer dId not consIder warranted dIscharge Also referred to was McPhee 2050/92 (Barrett) In respect of whIch Vice-Chair Gray apparently also heard some eVIdence SInce the Deputy Supenntendent of the InstItutIOn Involved In the Sindall Talbot case had also been Involved In and was 21 questIOned about hIS Involvement In the McPhee case AgaIn, for Vice-Chair Gray the sIgmficance of the McPhee case lay not so much In ItS outcome, but In the fact that the employer had Imposed a penalty short of dIscharge The employer had Imposed a 15 day suspenSIOn on the gnevor based on ItS VIew that the gnevor "lost It" when the Inmate called hIm a "dIddler" and struck the Inmate several tImes The penalty was Imposed on the mIstaken VIew that the gnevor had confessed ImmedIately after the IncIdent that the blows he had admInIstered to the Inmate had resulted from hIS havIng lost control Vice-Chair Gray consIdered those penaltIes and revIewed the CIrcumstances and conduct of the gnevors In hIS case, whIch he determIned was not as egregIOus as the employer had asserted, and concluded that the gnevor's conduct warranted no greater penalty than that Imposed by the employer In the cases under reVIew A penalty of a 15- day suspenSIOn was thus substItuted for the dIscharge The hIstoncal concept of "dISCnmInatIOn" In labour relatIOns IS one whIch has a very partIcular meamng and whIch predates the Charter modern notIOns of eqUIty many statutonly prohIbIted forms of dISCnmInatIOn and most human nghts tnbunals In ItS classIcal applIcatIOn the concept oflabour relatIOns dISCnmInatIOn was (and contInues to be) applIed so as to Insure that sImIlarly sItuated employees are treated In the same or sImIlar fashIOn as to dIscIplIne In ItS sImplest form, It would preclude dIfferentIal levels of dIscIplIne beIng applIed to dIfferent employees who were equally Involved In the same workplace offence At the nsk of over-sImplIficatIOn, however I do not accept that thIS pnncIple dIctates that because the Crown In RIght of Ontano qua employer some 15 years ago faIled to dIscharge an employee who had engaged In an Improper use of force and commItted an (albeIt relatIvely margInal type of) assault on a resIdent or Inmate, that the employer IS thereby forever precluded from ImpOSIng such a penalty for that kInd of offence 22 The pnncIple of dISCnmInatIOn IS eaSIest to apply not only In relatIOn to the very same offence but also In relatIOn to the very same management In the very same InstItutIOn. Its utIlIty perhaps declInes when one attempts to apply It across dIsparate mImstnes throughout the publIc servIce or even across dIsparate InstItutIOns WIthIn the same mImstry In any event, the pnncIple of dISCnmInatIOn and the exerCIse of dIscretIOn to modIfy a penalty must both be applIed and assessed In the partIcular cIrcumstances of each gIven case In the present case, I see no basIs to Intervene to modIfy the penalty Imposed. The result mIght have been dIfferent had the gnevor had a sIgmficant level of years of servIce lIke the gnevors In SIndall/Talbot or had she acknowledged her wrongdoIng and demonstrated some remorse as the employer belIeved the gnevor In McPhee had done I note as well that the entIre IncIdent was precIpItated by the gnevor's poor Judgement In determInIng to enter the cell ThIS was not a case where the resIdent/inmate had provIded any ImtIaI physIcal provocatIOn. The gnevor was gUIlty of poor Judgement In entenng the cell and of loss of control once InsIde It. She was not forthcomIng about her conduct In the cell at any tIme up to and IncludIng the eVIdence she gave In these proceedIngs WhIle she dId acknowledge some Impropnety on her part - bad Judgement on entenng the cell and faIlIng to record any of the events untIl so dIrected - she demonstrated no acknowledgement of wrongdoIng or contntIOn In respect of anythIng she had done whIle In the Inmate's cell and, Instead, chose to contInuously prevancate about what transpIred. In those cIrcumstances, I am unable to IdentIfy a sIngle sIgmficant mItIgatIng factor favounng the gnevor and I see no reason to modIfy the penalty Imposed. 23 Thus, to the extent the gnevances before me allege unJust dIscharge or seek to modIfy that penalty they are hereby dIsmIssed. I leave It to the partIes to advIse the Board If there remaIn any further outstandIng Issues Dated at Toronto thIS 23rd day of October 2002 ~ ~).L~~~~l: _. , ... .. r~ . :.. I .. :" Bram HerlIch, Vice-Chair