HomeMy WebLinkAbout2009-2003.Middlesex.10-03-31 Decision
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IN THE MATTER OF AN ARBITRATION IN THE MATTER OF AN ARBITRATION
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THE CROWN EMPLOYEES COLLECTHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT TIVE BARGAINING ACT
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THE GRIEVANCE SETTLEMENT BOARD THE GRIEVANCE SETTLEMENT BOARD
BETWEENBETWEEN
Ontario Public Service Employees Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services
Employer
BEFOREM. Brian Keller Vice-Chair
FOR THE UNIONScott Andrews
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYERSean Milloy
Ministry of Community Safety and
Correctional Services
Staff Relations Officers
HEARING
November 30, 2009.
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DECISION
[1]Subsequent to a mediation session held at Elgin-Middlesex Detention Center to resolve
various grievances resulting from a use of force investigation, the parties are unable to
agree on the contents of a memorandum and whether or not such memorandum should be
posted by the employer.
[2]The union takes the position that the memorandum should be posted by the employer so
that it can be seen by all employees. The employer asserts that it never agreed to such
posting during mediation but it does not object to the union posting the memorandum on
its bulletin boards.
[3]The principle issue giving rise to the grievances, that is, an allegation of use of force, the
investigation, and its subsequent findings, was undoubtedly stressful to everyone
involved: not just to correctional officers but also to managers. The stress was
compounded for all, but in particular for the correctional officers involved, by a
subsequent unfounded allegation that the use of force had been racially motivated.
Although the allegation was proven to be unfounded, and indeed, the employer has
always asserted that it was never a consideration in its subsequent decision to discipline
certain employees, it was nonetheless a matter of some notoriety in the institution and
certainly a cause of additional stress for correctional officers involved in the
investigation.
[4]While I accept that there was no formal agreement on the part of the employer to post a
memorandum, they were certainly aware of the direct effect the racial allegation had on
the correctional officers affected, and indirectly on the institution as a whole. In my view,
given the employer has verbally acknowledged, and is prepared to acknowledge in
writing, that the allegation of a racial motivation for the use of force was unfounded and
was not considered in the decision to subsequently discipline certain correctional officers,
I can see no harm and, on the contrary, can see a significant benefit in posting the
memorandum for all correctional officers and managers to see. Consequently, I order the
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employer to post the memorandum, which is attached as Appendix A to this decision, in
those locations it normally posts memoranda to correctional officers and managers.
[5]The posting of the memorandum is not a victory for the grievors. It is, rather, a way to
ensure closure of this incident. It is a statement that the employer conducted its
investigation in an appropriate and professional manner, took the appropriate and
necessary steps, and disregarded unfounded allegations. It is an acknowledgment that
whereas the investigation concluded that there was certain wrongdoing, those
wrongdoing did not extend to the unfounded allegation that the use of force was racially
motivated. The posting of the memorandum can only, in my view, have a healing effect. I
see no prejudice to the employer in posting the memorandum.
[6]I decline to award compensation as sought by the grievors.
st
Dated at Toronto this 31 day of March 2010.
M. Brian Keller, Vice-Chair
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Appendix "A"
This memorandum will serve to confirm that on December 23, 2008, at Elgin Middlesex
Detention Centre, a use of force investigation was initiated by management. Discipline
to several correctional employees resulted, based on the findings dealing with the use
of force.
During the use of force investigation, the employer received a complaint alleging that
the use of force had been racially motivated. No evidence was found to support the
allegation. Neither the decision to investigate, nor the subsequent discipline, was the
result of the complaint regarding racial motivation.
Understandably, each such investigation results in stress for employees. It is
unfortunate that the normal stress associated with the use of force investigation was
compounded by the additional stress resulting from the unfounded allegation. While the
employer regrets the stress that flows from any investigation it must be understood that
it has no option; it is required to investigate each such complaint.
The employer will continue to deal with any identified/potential threats against staff in a
timely manner, and in accordance with the appropriate policies and procedures.
The employer considers all issues relating to this incident to be fully resolved.
To be signed by the Superintendant