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HomeMy WebLinkAbout2019-2691.Grant.21-04-09 DecisionCrown 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# 2019-2691 UNION# 2020-5112-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grant) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Asma Hatia Treasury Board Secretariat Employee Relations Advisor HEARING April 7, 2021 -2- DECISION [1] The Employer and the Union at the Toronto South Detention Centre (“TSDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation- Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons. [2] Nathan Grant is a Correctional Officer at the TSDC. He filed a grievance dated January 17, 2019 claiming that the Employer had no just cause to issue him a one day suspension without pay. He seeks the removal of the discipline from his record and to be fully compensated for his losses. [3] Mr. Grant worked on the segregation unit at the TSDC for about four years, and on February 6, 2018 he worked a shift in that unit. Following his shift he went home. At 2:26 a.m. on February 7, 2018 he received an email from Sergeant Dosanjh indicating that an inmate had advised the segregation unit staff and the Sergeant of injuries he sustained during what the inmate claimed was a use of force during the February 6th shift on which the grievor had worked along with four other staff members. The grievor (and the others on that shift) were advised of the nature of the incident as it had been described by the inmate, and were asked to “submit an Occurrence Report (“OR”) detailing the events leading up to the incident”, and to submit it to the General Duty Manager’s office. [4] Since Mr. Grant had not been involved in the incident nor in the area of the incident, he had nothing he could say to detail “the events leading up to the incident”. As such, on February 9, 2018 at 9:32 a.m. the grievor sent Sgt. Dosanjh an email advising her as follows: Sorry Ms. Dosanjh I was not in the area and did not see what happened with the phone. [5] Mr. Grant heard nothing further from Sgt. Dosanjh. [6] Six months later, on August 10, 2018, the grievor was contacted and asked to file an OR regarding the February 6th incident. By that point the grievor had no actual recollection of that date or what had happened. However, he had heard from his colleagues that there had been an allegation of use of force when an inmate in a segregation cell had been permitted to use a phone to make an outside call, had refused to give the hand held part of the phone back through the hatch of his cell, and had later alleged that it had been forcefully removed from him, causing him some injuries. [7] As well, since Mr. Grant had been working on the segregation unit for a long time, he experienced regular occurrences of inmates refusing to give back the hand held part of -3- the phone. Thus, while the grievor completed an OR on August 10, 2018, what he outlined was not related to the February 6th incident at all, but was about some other incident that he had got confused with February 6, 2018. [8] The grievor wrote that the inmate had refused to get off the phone after being given several warnings by Segregation staff to hang up; he was given extra time to use the phone; that Sgt. Dosanjh had also attempted to have the inmate give the phone back; that CO Villeneuve had wheeled the phone back from the cell door; that the hatch had been secured; and that he had not seen any injuries to staff or the inmate. [9] There is no dispute that the videotape evidence of the February 6, 2018 incident does not show that Mr. Grant was present for the incident. As well, Sgt. Dosanjh was not present. [10] As the Employer was of the view that the grievor had failed to submit his OR in a timely manner; failed to provide an accurate description of the event; and failed to complete the Use of Force Occurrence Report in compliance with Ministry policies and procedures, it called him to an allegation meeting on July 2, 2019. [11] As is obvious from the chronology already outlined, this meeting was being held almost 18 months after the actual February 6, 2018 incident at which the grievor had not been present. Nonetheless, consistent with what he had written in the August 2018 OR, the grievor gave his version of what he thought had occurred, and indicated that he had not felt there had been any use of force at the time, so he had not filed a report. To his recollection all that had occurred was that the phone had been wheeled away from the inmate’s cell. He continued to maintain that Sgt. Dosanjh had been present for the incident that he was recalling. [12] I note that at the allegation meeting the grievor was offered the opportunity to review the videotape of the February 6, 2018 incident. The grievor declined the offer. In retrospect, he should have availed himself of the opportunity as that may have assisted him in recalling that he had not been present at all at the time of the alleged use of force incident, and nor had Sgt. Dosanjh. [13] Approximately five months later, on December 12, 2019, the grievor was given a one day (8 hour) suspension without pay for failing to submit a Use of Force Occurrence Report in a timely manner; failing to provide an accurate and precise description of the incident; and failing to complete the Use of Force Occurrence Report in compliance with Ministry policies and procedures. [14] Having considered the evidence and submissions of the parties, for the reasons that follow I find that the Employer did not have just cause to discipline the grievor with a one day unpaid suspension. Sgt. Dosanjh had asked the grievor and others on his shift to submit an OR “detailing the events leading up to the incident”. In a timely manner, Mr. Grant had responded to Sgt. Dosanjh to tell her that he had not been in the area and had not seen what had happened with the phone. It should have been obvious to her at that point that the grievor had nothing to detail regarding the incident. If, notwithstanding that, the Employer felt that Mr. Grant should file an OR, Sgt. -4- Dosanjh should have told him that at the time. Neither she, nor anyone in management did so. [15] It is not surprising that six months later the grievor really had no recollection of a date on which, from his perspective, he had not been involved in anything that had happened. However, in the intervening months, there had been other phone incidents with inmates in the segregation unit. I accept that Mr. Grant confused events that had occurred since February 6th when he wrote his OR in August 2018. However, that is not an excuse for submitting an OR that was entirely inaccurate. [16] The Employer relies on its front line staff to file ORs in order that it may properly investigate allegations made by inmates regarding the use of force or other matters. If Mr. Grant simply had no recollection of the incident that had occurred on a date six months earlier, he should have said so in his OR. Had he been disciplined for that, he would have had the evidence of his timely email to Sgt. Dosanjh to confirm that he had told her on February 9, 2018 that he had not been in the area. [17] Thus, while I find that the Employer did not have just cause to give the grievor a one day suspension, I find that it did have cause for some discipline for Mr. Grant’s provision of an inaccurate description of what had occurred on the date in question. As such, the Employer is directed to remove the one day suspension from the grievor’s record, to compensate him fully for the suspension served, and to amend the December 12, 2019 letter of discipline to reflect a Letter of Reprimand. [18] For the reasons outlined above, the grievance is upheld in part. I will remain seized in the event there are any issues arising out of the implementation of this award. Dated at Toronto, Ontario this 9th day of April, 2021. “Gail Misra” _____________________ Gail Misra, Arbitrator