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HomeMy WebLinkAbout1978-0214.Fournier.80-02-04Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: For the Grievor: Mr. Louis Valere Fournier And Grievor The Crown in Right of Ontario Ministry of Community & Social Services Employer J.F.W. Weatherill Vice-Chairman G. Peckham Member P.A. sigurdson Member Mrs. L. Stevens Grievance Officer Ontario Public Service Employees Union For the Employer: Mrs. R. McCully Solicitor, Legal Services Ministry'of Community & Social Services Hearing: May 7, 1979 June 15, 1979 January 2, 1980 Toronto, Ontario -1- At issue in this case is the discharge of the grievor, effective November 14, 1978, as the result of an incident which occurred on October 13 of that year. In the course of that incident the grievor, it is alleged, used "poor judgment and excessive force". The grievor, who was hired on March 8, 1973, is a Supervisor of Juveniles 2 employed at the Syl Apps Correctional Facility at Oakville. When the grievor was first employed there, the facility served a somewhat different purpose as the Oakville Reception and Assessment Centre. With the exception of certain training periods, the grievor has worked at the Oakville facility throughout.his career with the Ministry. His annual appraisals have been good, although he has been subject to discipline on certain occasions. From all of the evidence it would appear that he is a.conscientious employee, understanding and warm if sometimes impulsive with respect to the inmates under his care or control, and often relied on by his colleagues or superiors in emergency situations. The Syl Apps Centre is a "maximum security" institution for juvenile offenders. Those sent there may, according to the evidence of the Deputy Superintendent, be either 1) young persons who have conanitted an offence judged serious enough for maximum security; or 2) those who have shown no progress at other facilities or have absconded therefrom; or 3) those whose behaviour would not, it is thought, permit them to survive elsewhere. The Centre can accommodate 48 juveniles, in six cottages (five of boys, one of'girls) of eight persons each. There are a number of "segregation rooms", infrequently used. There is a staff totalling 123 although, in general, each staff person while on duty will have charge of four juveniles. The facility includes a school, under the direction of a principal, and the inmates attend classes regularly. The class- rooms and school facilities are in a controlled area. The school . facilities include a library, which is reached through a control area, which in turn. is reached from a short passage off the main corridor of the classroom building. The same passage leads to a work room area, which has a counter running down the length of one wall. On October 13, 1978, the grievor was scheduled to work from 7:00 a.m. to 3:00 p.m. He reported for work, and was on duty in the usual way in one of the cottages until about 8:30 a.m., when he was called and asked to go to work in the school area for the day. The duties involved in that sort of work include ensuring that the children are in class on time, escorting those who need to go out, assisting the teacher as required and helping with any "confrontations". Two Supervisors were assigned to such work that day, the grievor and a Mr. Woodruff. When they are not otherwise engaged, one or the other or both of the supervisors may sit in the control area, just outside the library. There are two chairs and a desk in that area. On the day in question both the grievor and Mr. Woodruff were in that area for a time, apparently just after the beginning of classes. Then the grievor left, as he testified, to make his rounds. A little later, shortly before 9:30 aim., one of the inmates, a juvenile boy of - fifteen or perhaps sixteen years, left his classroom to go to the library. He had been, as he testified, "just stalling" in school, and wasting time, and there seems to have been no difficulty about his -3- going to the library. He appears to have gone unescorted. He went through the control area to the library, got a book, came back out, sat down in the chair beside Mr. Woodruff and chatted with him. He picked up a pencil which he apparently intended to use in signing the book out of the library. 'A few moments, later the grievor returned and it was then that the incident on which this case turns took place. There are three eye-witness accounts of the whole incident. A fourth eyewitness, Mrs. Hollingswsrth, who was working in the library, saw a bit of the scuffle which took place, and thereupon closed the library door. She saw neither the beginning nor the end of the scuffle, and could not testify as to the significance of what took place. The important testimony, then, is that of the grievor, that of the juvenile, and that of the Mr. Woodruff, who was called as a witness by the employer. In terms of the sequence of events which occurred, the three accounts of the matter are essentially similar. Following the 'incident, each of these witnesses gave a statement in writing (the two supervisors were asked to give expanded statements that afternoon) and for the most part these statements coincide with the testimony given at the hearing of this matter. We shall set out our findings as to what took place, based on all the evidence, noting significant features of or variations in the testimony. On all accounts, when the grievor returned to the control area and saw the juvenile in his chair, a certain amount of banter took place. In his first written account (in fact, he wrote three accounts of the matter on that day; the first two are substantially identical), the grievor stated that after a bit of joking with respect,to the chair .? 1 -4- (the grievor had said "you're in my chair", and the juvenile had replied "whose chair? this is my office now", or words to that effect), the juvenile jumped up, with the pencil in his hand, and.came at him. In the third, more detailed written account the grievor stated that, following the banter referred to (and all seem agreed that it was banter), he approached the chair in which the juvenile was sitting and, from behind, put one arm around the boy's neck, and his other arm on his shoulder. The omission of reference to this gesture in the grievor's first written reports seems odd, in' view of the whole of his testimony, for it is the nature of that action which gives its character to the entire incident. At the hearing, the'grievor testified that this was intended as'a sort of friendly contact which would show warmth to the boy. A central issue to be determined, as we view the matter, is whether or not this was simply self-serving, after-the-facttestimony on the grievor's part, or whether it is a true description of the nature and purpose of his action. ,That such an action did in fact take place (despite the lack of reference to it in the grievor's first written statements), seems clear, because the juvenile, in his report and in his testimony, confirms that it did. He testified that while he was seated in the chair, after a bit of joking, the grievor grabbed his neck. He added that he did not know if the grievor was serious or if he was joking. He went on to add - in his written statement, but not in his testimony - that he tried to get up, and as he did so, the grievor pulled hishair. We do not believe that the grievor pulled the juvenile's hair at that time. This was an aspect of the matter on which the juvenile's testimony was surely exaggerated, as we will indicate later. .T -. - 5 - The other supervisor did not recall, either in his written statement or in his evidence at the hearing, the griever's touching the juvenile while he was seated. We find, as we have noted, that there was such a touching; and we think it is significant that Mr. Woodruff took no notice of it:~that suggests that what took @lace was in nature of a continuation of the banter that had gone on, that nothing serious was happening and that there was no expression of ill will. Whatever he may have thought - and his testimony is that he didn't know what was happening - the juvenile reacted violently. He jumped up from the chair and grabbing his pencil "like a knife" came at the grievor. As he got up, he said to the grievor "do you want a go?" It appeared to Mr. Woodruff that the juvenile was joking. The griever, quite properly, told the juvenile to put the pencil down, and when ' he did not, the two had a brief scuffle, the grievor putting the juvenile on the floor and holding his hair for a moment to keep him subdued. He then released him; This portion of the incident is not the subject of any substantial dispute, except with respect to the hair-pulling which the juvenile alleged occurred. His evidence is that later, back in the classroom, he removed seven or eight handfuls of hair which he showed other classmates and the teacher. There is no corroboration of that evidence which we consider at best to be exaggerated. That the grievor held the boy's hair for a moment, to restrain him briefly, seems to have occurred; there is no credible evidence that he pulled '. it, or sought to inflect pain. The juvenile who, on his own evidence, was now "really mad" got up and came at the grievor again. He was, according to Mr. Woodruff's evidence, very abusive of the grievor. The grievor continued talking to the boy and, according to the same evidence, did not scream at him. During this scuffle the two.of them moved out of the control area into -6- the work room. The grievor pushed the juvenile up against the counter. He was holding him in an appropriate "restraint" hold, and the boy then slumped down to the floor, and was released. The grievor suggested that in backing against the counter, the juvenile may have bumped against an open drawer. The juvenile's evidence is that he bumped against a paper cutter. Later, the nurse observed a mild reddening of the juvenile's back where it might have bumped against such an object, although the mark might also have had some other cause. Certainly.the juvenile suffered no substantial injury. With respect to that part of the incident the evidence of the grievor is substantially corroborated by that of Mr. Woodruff who was, as we have said, the employer's witness. The juvenile's account of it has the grievor throwing him on the ground more than once, and pulling his hair. This is contradicted by the other evidence, and is not consistent with his being put on the floor by the grievor and at once released. It is a story of brutality which we simply cannot ..~ '..::'-r~~ find to be true, in the light of all the evidence. Following this, while the juvenile had, according to Mr. Woodruff, been "cooled down" physically, he remained abusive. The grievor simply walked back to the desk but the juvenile shouted at him, challenging him, and saying that he would get him fired if it was the last thing he did. He then threw the pencil, with which he had admittedly been trying . to stab him, at the gnevor, and walked back to his class. In his written report, the juvenile concluded by saying "This is the third time I was assaulted by Louie and it had better be the last". This was a reference to two previous occasions on which the grievor had been called to remove the juvenile, once from a room in .- -2 i 7 - which he and others had locked themselves and which they were demolish- ing, and once from a segregation room, in which the juvenile had torn the grille from an air vent. On both occasions the griever's conduct was appropriate to the situation, and there is no suggestion that he used undue force. That did not, however earn him the friendship of the juvenile. It was, as he testified, for that reason that the grievor, as he had done in other cases, was anxious for some "opening" when he could demonstrate warmth and human feeling to the boy. He considered that such an opening had occured on the occasion in question, but his action was.mis- interpreted. In assessing the evidence of the witnesses, we bear in mind that both the grievor and the juvenile may be said to have an interest in the outcome of the case. The grievor's livelihood is at stake, and as for the juvenile, he has made a serious charge. The grievor, however, had no motive for making an unprovoked assault on the juvenile. The juvenile, on the other hand,~did not like the griever; and had said so to'Mr. Woodruff before the event took place. His comment on the report confirms that. The grievor's record appears to be one of good relations with the:inmates; he was sensitive to their feelings and had developed a good rapport with many of them. He was considered good at de-fusing crisis situations. He had no motive to create one. The juvenile was not known as aggressive in the sense of attacking others., although he was quick to retaliate. He had been involved, while at the Centre, in a number of what he termed "minor riots". The offences with which he had been involved which resulted in his detention were, as he stated, "car theft, B and E and arson". -B- Having considered all of the evidence relating to the incident, and having regard to the demeanour and testimony of the two persons involved, it is our view that the account of the matter offered by the grievor is to be preferred, where it conflicts, to~that offered by the juvenile. We find, on all of the evidence, that the initial physical contact was not an assault, but was in the nature of an attempt at a warm human contact of a sort which might well be accepted and understood by a boy such as that. It was an "affectionate physical contact" made, as we find, "in an honest,. friendly way". It was within the scope of acceptable physcial contact with a ward, as described in a manual dealing with staff values and behaviour issued in June, 1977.‘ It may be added that in this important.respect the evidence of.the juvenile is quite consistent with that of the grievor and that of Mr. Woodruff. At the outset of~the incident, then, there was no improper use of force on the part of the grievor. After that, when the juvenile came at the grievor with a pencil seeking, as he acknowledged, to stab him with it, the grievor quite properly sought to restrain him and to take the pencil. We find that he did not use excessive force, nor did he deliberately inflict pain on the juvenile. The grievor, as we have noted, was discharged~ for "poor judgment" as well as for alleged use of excessive force. Both faults were attributed to him in respect of the same incident. We have found that there was no excessive force. As to the alleged poor judgment, it is our view that while the grievor's playful gesture was mis- interpreted by the juvenile, and thus, with the benefit of hindsight, - 9 - appears to have been a mistake, it was nevertheless a reasonable and proper attempt at friendly contact. Actions of that sort usually appear silly or out of.place when they are later described to an investigator, things having gone wrong. They are to be'judged, however, fin relation to the circumstantial context in which they occurred. In\the instant case, given the nature of the relationship which existed and which the grievor sought to improve, given the back-and-forth banter which had developed for a few moments, the grievor's action can be seen as one which might very well have had a positive effect. Having regard to all of the circumstances, we do not consider that what occurred on this occasion was an instance of poor judgmenton the part off the grievor, at least not to the i extent that it could serve as an occasion for the imposition of discipline. For all of the foregoing reasons, it is our conclusions that there was no occasion for the imposition of discipline on the grievor in this case. It is not necessary for us to exercise our authority under&ction,,;18~(3) of the Crown Employees Collective Bargaining Act. Our decision is simple that the discharge of the grievor should be.set.aside, and that he be reinstated in his employ- ment without loss of seniority or other benefits, and compensated for loss of earnings. As counsel agreed, the Board remains seized of the matter for the purpose of determining the compensation payable to the grievor, if the parties are unable to agree thereon. - 10 - Dated at Toronto this 4th day of February, 1980. Signed "J.F:W:Weatherill" Vice-Chairman "Pamela Sigurdson" Member "G.A. Peckham" Member