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Home My WebLink About2022-8779.Hunt.2023-06-23 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2022-8779 UNION# 2022-0411-0158 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hunt) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Shivani Ramoutar Treasury Board Secretariat Labour Relations Analyst HEARING June 21, 2023 - 2 - Decision [1] The Employer and the Union at the Ottawa Carleton Detention Centre (“OCDC”) 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] Jenn Hunt was a fixed term Correctional Officer at the OCDC, who had been employed since July 2018 at the time she filed a grievance dated August 8, 2022. The grievance claims that the Employer had issued Ms. Hunt a five-day unpaid suspension which she stated was excessive in nature. By way of remedy, the grievor wishes to be made whole. [3] The event giving rise to the discipline occurred on May 4, 2022 when the grievor was working a 7 p.m. to 7 a.m. night shift. While on shift at around 9:25 p.m. Ms. Hunt heard Acting Sgt. Rivette speaking to an inmate. When she got to the area she realized that the Sergeant needed assistance with escorting the inmate from the pod as the inmate was refusing to leave. The grievor assisted the Sergeant in - 3 - getting the inmate out by using her hand to clamp onto the inmate, and together they moved him into a room, where she then put handcuffs on the inmate while the Sergeant (according to videotape evidence) had one hand on the inmate’s neck. After the grievor had completed putting on the handcuffs, the video shows her looking up at the inmate while the Sergeant spoke to the inmate for a number of seconds. They then jointly moved the inmate out of the room. [4] The letter of discipline dated August 9, 2022 outlines the reasons for the grievor being issued a five-day unpaid suspension. It alleges that on May 4, 2022, after physically applying force to an inmate, the grievor failed to complete a Use of Force Occurrence Report (“UFOR”) by the end of her shift. It was not until May 17, 2022, after she had been sent an email reminding her that no UFOR had been filed, that Ms. Hunt finally submitted her report. The Employer also alleges that the grievor’s May 17, 2022 UFOR was not a full report, and was thus contrary to policies, procedures, and training. [5] Thereafter, at the Employer’s request, the grievor filed an Addendum report on May 26, 2022. One of the Employer’s specific questions when seeking the Addendum was “What techniques were applied by both yourself and a/Sgt Rivette upon entering PVLO room#1?” The grievor had complied by filing an Addendum report, but never mentioned the Sergeant’s neck hold of the inmate. [6] The grievor concedes that she did not file the UFOR by the end of her shift on the night in question, May 4, 2022. She relies on a number of reasons including that - 4 - she was busy with work and catching up with emails as she was coming back to work after two months off; there was insufficient staff to relieve her of her duties; and the computer system was down that night so she could not complete her report. [7] It is the Employer’s evidence that while the computer system was down for maintenance from about 9 p.m. to midnight on the night in question, it was back on for about 6.5 hours of the grievor’s remaining shift. It further points out that all staff are aware that they must file an Occurrence Report by the end of their shift, and if it is not possible to do so, they must advise their Manager and either request overtime on that shift to do their report, or seek a specific extension to the time for filing the report. The grievor did neither, and simply left after her shift was over. [8] While the grievor worked a number of shifts after May 4th, she did not file a UFOR until she was reminded by the Employer to do so on May 17, 2022. By then it was almost two weeks after the use of force incident had occurred. [9] In neither her May 17th UFOR, nor her May 26th Addendum did the grievor mention the Sergeant’s neck hold of the inmate during the incident. However, since the Sergeant had noted it in his report made on May 5, 2022, and since it was on the video, the Employer knew that this had occurred, but that Ms. Hunt had not reported it. The grievor maintains that she had not seen it or had completely forgotten about it. - 5 - [10] Having reviewed the video and observed the grievor’s view in relation to Sergeant Rivette and the inmate, I cannot accept that she did not see that he had his hand on the inmate’s neck. However, I accept that by the time she finally filed her UFOR, Ms. Hunt may well have forgotten this detail as by then she had worked other shifts since the date of the incident. [11] In deciding on the quantum of discipline of a five-day suspension, the Employer considered the seriousness of the grievor’s failure to file a timely and full UOCR, in breach of established policies and procedures. It also relied on previous discipline on the grievor’s record at that time, which was a 15-day suspension she had received not long before on March 31, 2022, for in part a somewhat similar issue of not filing a timely or complete Occurrence Report. It noted the fact that the grievor had been working at the institution for about four years by the time the incident occurred and should have been well versed in all the relevant Ministry and institutional policies and procedures. [12] In light of the facts in this case, I find that the Employer has established just cause for discipline. Ms. Hunt knew that she was expected to file a UFOR by the end of a shift on which a use of force incident had occurred, and she knew what she had to do if she could not get it done in time. She knowingly left work without filing the report, or telling her Manager she needed more time, or making any arrangement to file her report late. She then failed to file the report despite coming to work for shifts after May 4, 2022, and did not do so until the Employer followed up with her to ask for it. - 6 - [13] As a result of her breach of the established policy regarding the timely filing of a UFOR, she forgot a salient fact of the use of force incident and did not report it. It is precisely because people can forget details with the passage of time and due to intervening events that the Employer requires that its staff file an Occurrence Report on the shift on which the incident occurred or as soon thereafter as possible. This is a reasonable requirement, which the grievor simply ignored. [14] While I have found that the Employer had just cause for discipline, I find that a five- day suspension was a more onerous response than was necessary in the circumstances, and that a three-day unpaid suspension would be a more appropriate penalty in this case. [15] Therefore, having considered the facts and submissions of the parties, and for the reasons outlined above, the grievance is upheld in part. I direct the Employer to amend the letter of discipline to reflect a three-day unpaid suspension, and to compensate the grievor for two days of the unpaid suspension that she served. I remain seized in the event that there are any issues that arise out of this decision. Dated at Toronto, Ontario this 23rd day of June 2023. “Gail Misra” _________________ Gail Misra, Arbitrator