Loading...
HomeMy WebLinkAbout2017-0013.Sardinha.18-02-16 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#2017-0013 UNION#2017-5112-0048 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sardinha) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Brian Sheehan Arbitrator FOR THE UNION John Wardell Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Caroline Markiewicz Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING December 14, 2017 -2- Decision [1] The Employer and the Union at the Toronto South Detention Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation-Arbitration process, wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they would respectively rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and it is without prejudice or precedent. Background Facts [2] Bronson Sardinha (the "grievor") is a Correctional Officer 2 (CO2) employed at the Toronto South Detention Centre. [3] On Monday February 27, 2017, the grievor was assigned along with Correctional Officer 1 (CO1) M. Gondosch to Unit B4D. Sergeant Omar Lawrence was in command of B4 Tower on that day. [4] At approximately 2 PM, Sergeant Lawrence was advised that there was an issue with the Graphic User Interface (GUI) for the B4 C/D sub control module. Specifically, the GUI was not displaying any script in the description box when an alarm was activated. [5] Shortly thereafter, Sergeant Lawrence attended Unit B4D and advised Correctional Officers Sardinha and Gondosch of the issue with the GUI. He further advised that the power would be transferred from the B4 C/D sub control module to the B4 A/B sub control module. He directed both Officers to secure the Unit and informed them that he would be retrieving the emergency manual keys for the Unit. [6] After leaving that Unit, Sergeant Lawrence met Correctional Officer V. McGuire who was on her way to provide “break relief” for Unit B4D. He redirected her to handle the emergency keys for that Unit and to stand in the corridor leading into the Unit in case Correctional Officers Sardinha and Gondosch needed assistance. -3- [7] Sergeant Lawrence then called into Unit B4D to provide an update to Correctional Officers Sardinha and Gondosch. He conveyed to Correctional Officer Gondosch that Correctional Officer McGuire would be delayed for break relief and confirmed that the power would be transferred from the B4 C/D sub control module. [8] According to Sergeant Lawrence, at approximately 2:20 PM, Correctional Officer McCormick was advised that the power was ready to be transferred. And at approximately 2:25 PM, Sergeant Lawrence in fact arranged the power to be transferred. Power was restored to the B4 C/D sub control module within a minute. [9] Correctional Officer McCormick notified Correctional Officers Sardinha and Gondosch that the power to the unit had in fact been transferred. At that time, when there was no power being provided to Unit B4D, Correctional Officers Sardinha and Gondosch noted that a few inmates were still not in their respective cells; and that, accordingly, the health and safety of the Correctional Officers were put at risk. Decision [10] A review of the relevant facts in this matter affirms that Sergeant Lawrence took a number of steps to ensure that the brief transfer of power from the B4 C/D sub control module took place in a safe manner. In this regard, it is without dispute that all the Correctional Officers who were potentially going to be impacted by the transfer of power from the B4 C/D sub control module were given advanced notification as to what was going to transpire. Moreover, Correctional Officers Sardinha and Gondosch were directed to secure the Unit to ensure that no inmate would be out of his cell when the Unit would be without power. Sergeant Lawrence also secured the emergency manual keys for the Unit and had Correctional Officer McGuire in close proximity of the Unit in case, for some reason, additional assistance was needed. That being said, it would appear that Sergeant Lawrence, prior to the actual transfer of the power away from the B4 C/D sub control module did not, in fact, double check and seek confirmation from Correctional Officer McCormick, or the other Correctional Officers on the Unit, that in fact the Unit was secure, and all the inmates were in their respective cells. Sergeant Lawrence may have been of the view that this step was not necessary, as the passage of time since he had directed Correctional Officers Sardinha and Gondosch to secure the Unit suggested it was more than reasonable to assume that the task of securing the -4- Unit had been completed. Given the potential risks involved, however, Sergeant Lawrence should have, in my view, taken the additional precautionary measure of obtaining confirmation that all the inmates were in their cells before directing the power to be transferred. [11] This failure of Sergeant Lawrence to secure confirmation that the inmates were in their cells suggests a finding is in order that the Employer failed to take every reasonable precaution, with respect to the health and safety of the Correctional Officers involved; and as such, the Employer failed to satisfy its obligations under the Occupational Health and Safety Act (“OHSA”). However, given the nature of Sergeant Lawrence’s overall efforts to ensure that the transfer of power from the B4 C/D sub control module took place in a safe manner; and since the failure of Sergeant Lawrence to obtain confirmation that the Unit was fully secure can be best characterized as an inadvertent oversight, it is my view that it is not appropriate to provide any remedial relief beyond the issuance of a declaration that, in the circumstances, the Employer failed to take every reasonable precaution for the safety of the employees involved, as contemplated under the OHSA. Dated at Toronto, Ontario this 16th day of February, 2018. “Brian Sheehan” Brian Sheehan, Arbitrator