HomeMy WebLinkAbout1979-0079.Travers.80-05-29 Decision79/79
213/78
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between : Mr. David Travers
and
The Crown in Right of Ontario
Ministry of Correctional Services
Mr. E. R. O'Kelly Member Mr. Dan Anderson Member
Ontario Public Service Employees Union
1901 Yonge St Toronto, Ontario
Before: Professor Katherine Swinton Vice-chairman
For the Grievor: Mrs. Lillian Stevens
FOr the Emp1oyer: Mr. J. Benedict Manager, Staff Rel ati ons and Compensati on Human Resources Management
Ministry of Correctional Services
2001 Eglinton Ave. E.
Scarborough, Ontario
February 15th, 1980
February 16th, 1980 March 12th, 1980 March 15th, 1980 March 29th, 1980
Suite 2100, 180 Dundas St. W., Toronto
Hearings: February 6th, 1980
.
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This case involves three grievances by the grievor, David Travers,
They include a written against the Ministry of Correctional Services.
reprimand for horseplay (dated September 19, 1978 - Ex.6); a two-day
suspension for tearing up an inmate request form (September 6, 1978 -
Ex. 4); and discharge for use of excessive force against an inmate
(March 5 1979 Ex. 5). At the request of the union, the evidence with
regard to these grievances was presented in the order set out above, as
the union's case turned in part on allegations of harassment, which, it was
argued, required presentation of each grievance separately.
This award will also deal with the three grievances separately.
Extensive evidence was presented in this case over several days of hearings.
In several key areas, that evidence is contradictory and requires the Board to make
findings of fact based on assessments of the credibility of the witnesses. We will
first set out the chronology of events in the case, and the conflicting stories,
before determining the facts influencing our decision in the case.
David Travers was hired by the Ministry of Correctional Services on
April 18, 1977 and first worked as a Correctional Officer at the Don Jail.
On September 26, 1977, he transferred to the Niagara Detention Centre in
Thorold, and he was employed there until his discharge on March 5, 1979.
At the time of his discharge, he was classified as a Correctional Officer 2.
The Horseplay Incident
The first incident, involving horseplay, resulted in a written reprimand.
It occurred on September 5, 1978 during the afternoon shift (3:00 p.m. to
11:00 p.m.).
institution, along with Mrs. Anne Wilson and Mr. Steven Long. Long, who was a
The grievor was assigned to the maximum security area of the
probationary employee and had been at the Centre eight months, was assigned
to the "Maximum Module". This is a windowed office from which the officer
can watch all inmate and guard movement in four wings.
the alarm panel, incoming telephone calls, and issuance of keys for corridors
and cells. Wilson was the Maximum officer and Travers the Segregation officer.
The officer controls
It was Long who complained about Travers' conduct during that shift.
One incident involved a wal kie/tal kie. When Long returned from supper
break at about 6:00 p.m. one of two walkie/talkies in the module was
missing. Travers, who had been relieving Long, denied knowledge of its
whereabouts. Wal kie/tal kies were then used to supervise inmates during
recreation periods and by some guards on rounds. They were also a link
to the Visiting Officer at the front of the building.
Long subsequently heard a low grumbling noise on the remaining walkie/
talkie, which he had switched on in order to be in contact with the
Visiting Officer.
outside the module and saw Travers with the walkie/talkie.
it, and it was returned.
The Visiting Officer complained to Long, who looked
He asked for
The second incident that night involved the "green phone" on the
side of the module, by which guards outside the module contact the officer
inside.
nothing over the telephone.
the telephone, which, when replaced, allowed communication to occur.
Mrs. Wilson was trying to speak with. long, but he could hear
He then saw Travers hold up the microphone from
Finally, Long observed Travers by the desk outside the module, crouching
down and whistling as if he had a dog. This lasted a few minutes.
Long testified that he was increasingly upset with Travers, for he
disliked the module assignment. He complained to Corporal James Miller
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about the incident that night, although asked him not to speak to Travers.
He also talked
to Travers himself, on the advice of other officers. Travers
apologized, and all seemed to be worked out in Long's estimation.
Two days later, Long was called into the office of Assistant
Superintendent Cameron and asked to write a report on the incident, which
he did. Subsequently, Travers was reprimanded for his conduct,
There is really no dispute as to what occurred in this incident.
Rather, the grievor protests the penalty as excessive and discriminatory.
The validity of these protests will be discussed later in the award.
The Request Form Incident
This incident occurred on August 18, 1978 and involved destruction of
an inmate request form by the grievor.
outside the institution (family, a lawyer, a justice of the peace) are
normally taken each day before 9:00 a.m.
printed form by a correctional officer, signed by the inmate, and taken
to the Sergeant's Office.
repetitive requests) ,initialled ,and sent to another office, where the
calls are made.
request is returned to the inmate area for signing by the inmate.
is then filed in the inmate's file.
Inmate requests to contact people
The request is written up on a
There, the forms are vetted (for example, for
On completion of the call the reply is noted and the
It
Extensive discussion occurred in the hearing with regard to the
proper procedure for taking requests.
(Ex.13) from the Centre's Manual of Procedures which purported to cover
the procedure
for taking requests: Among the steps for taking requests
are found the following:
We were presented with a statement
(4) These forms are numbered, therefore, all must be accounted
for including any that become damaged or spoiled.
(5) Part 1 of every form must be filed on completion. The
current method for completing the form by staff is as
f ol l o ws :
(a) On receipt of an inmate's request, the staff member
will complete the form down to and including "type
of request". The two parts will then be separated,
with part 2 being sent to the Control point for
filing in its numerical order.
In evidence, it became clear that the procedures followed at
'Niagara Detention Centre did not comport with rules (4) and (5) above.
A17 of the officers testified that the numbering system was meaningless,
and that they took no account of it.
destroyed forms, for example, when an inmate changed his mind about making
Several mentioned that they had
a call during the time that the officer was completing the
Part 2 of the request form had never been used, albeit Ru
of filing Part 2. The practice had always been to destroy
carbon copy.
form. Furthermore,
e 5 speaks
Part 2, a
In light of this evidence, the breach of the rules in Ex. 13 cannot
per se be grounds for discipline.
request form may or may not be grounds for disciplinary action, depending
on the circumstances in which this occurs;
Nevertheless, the destruction of a
The grievor is alleged to have ripped up a special request form from
The special request inmate Larry Langhor to see a Justice of the peace.
form had been taken outside the regular request period on the orders of
Assistant Superintendent Cameron.
a.m. on August 18.
lay a charge of assault against the arresting police officers. Cameron
He had seen Langhor. at about 10:30
Langhor,; wished to see a Justice of the Peace to
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ordered Correctional Officer Kevin King, who was on duty, to fill out
the special request form.
at that time because, he testified, he could not leave the area.
report to Cameron dated August 28 (Ex. 14), he states that he turned it
in at the end of his shift, which would have been 3:00 p.m. This cannot
be true, however, for the request form was discovered on the desk in the
Minimum area by the grievor after he came on duty at 3:00 p.m.
would appear that King's report is false, perhaps in order to protect
himself from disciplinary action.
sure that he took the form to the office. No disciplinary action was
taken against him, however, a fact which will be discussed later in this
award.
King did so, but failed to file the request
In a
It
In evidence he admitted that he was not
The sequence of events with regard to the Special Request form
is not clear. The grievor's evidence conflicts with that of Sergeant
Charette, and both will be set out. Travers said that he found the
request at about 3:15 p.m. He mentioned the request and its contents
to Charette during a break, at about 7:00 p.m., and Charette then told
him to rip it up.
out of his dormitory at about 8:30 p.m., and told him that the request
could not be made then, but must wait until the next day. Travers then
ripped up the request in front of the inmate.
Correctional Officer Straitenfeld that the grievor was smiling or
laughing at the time.
the Sergeant and Charette was called. After talking to Langhor, he
ordered Travers to complete another request form, and this was done.
He returned to the Minimum area, called inmate Langhor
There is evidence from
Langhor became quite upset and demanded to see
The divergence in testimony is with regard to the order to rip up
the request form. Charette denies ever giving such order. He testified
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that after consulting inmate Langhor
had been destroyed. Travers supposedly replied that the request was out of
time and that Langhor, being a chronic complainer, could have no valid
reason for making such a request.
ripping up such forms again.
he asked Travers why the request form
Charette counselled Travers against
Ten days later (August 28), after Langhor. complained to Assistant
Superintendent Cameron, Charette wrote a report on the incident.
Discipline occurred September 5, 1978.
The Assault Incident
The third grievance, leading to discharge, occurred on February 28,
1979 and involved inmate John Colquhoun. Travers was working the
night shift (11:00 p.m. to 7:00 a.m.) in the Minimum area. At about
6:25 a.m. he was making a second Nakeup call for inmates when Colquhoun
swore at him, calling him a fucking goof." Travers called Colquhoun out
of the dormitory in which this occurred. There was continued swearing, so
Travers instructed Colquhoun to sit on a bench in the Minimum area hallway
and Sergeant Charette was called.
inmate was to be removed from the area, as only the Sergeant could order
It was necessary to do so, if the
the inmate removed to the segregation area.
At this point, the evidence diverges. Travers said that he was trying
to counsel Colquhoun, who was verbally abusive. Apparently, the inmate
calmed down briefly while Charette was present.
Charette testified that when he arrived, the inmate was calm, but Travers
was "quite upset".
and Travers constantly interrupted, saying to Colquhoun, "Tell the
Sergeant why you called me a fucking goof."
said that "if you insist I called you a fucking goof, then you are a
fucking goof."
Charette said that he started to question Colquhoun,
Colquhoun became angry and
Charette then intervened and told Colquhoun that he would
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be placed in segregation pending an investigation.
Travers denied that he was upset at this time or that he interrupted
Charette's interview with Colquhoun.
Charette and Travers then proceeded to escort Colquhoun to segregation.
The walk to that area took about one and a half to three minutes depending
on Travers' or Charette's evidence. During the walk, Charette said
that all seemed calm. Officer Albert Schuit met the group at Door 18,
which leads to a stairway to the second floor segregation area. Since all
seemed calm, Charette left them at the door and returned to his office for
shift change.
segregation, although this was not rule at the time of this incident.
It is customary for a sergeant to accompany the inmate to
Travers' story of the procession to Doorway 18 differs from Charette's.
He said that Colquhoun was upset. Travers feared that the inmate might
strike him, for Colquhoun kept raising and lowering his fists all the
way down the hall.
Schuit led the way up the stairs to segregation with Colquhoun and
Travers following in single file, each a few steps behind. Again, the
stories of what occurred are different. Colquhoun was heard to be muttering
something as he went up the stairs. Schuit could not clearly hear what
was said. Travers said that there were threats and obscenities. At one
point, Travers called out to ask Schuit., if he could hear the comments.
Schuit said no and that they should just get the inmate into the cell.
At the top of the stairs is a landing about nine feet in length, a
doorway into the segregation area, and two cells. Schuit proceeded into the
segregation area and proceeded to open a cell. Colquhoun was in the
doorway to the area, which Schl uit said was about 6 to 8 feet away. The
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area is only 7'4" wide (Ex.7) and the door three feet wide so the distance
must have been no more than about four feet. Travers was still on the
landing outside the door. Schuit. said that Colquhoun said to Travers, "I
will get you", raised his fists and stepped back.
through the doorway and grabbed Colquhoun, placing him in a headlock and
punching him four to five times in the head and face area.
the inmate to the floor and kicked him with full kicks three to four times
in the rib and kidney area on his side and pulled his hair two to three
times. Schuit did not intervene. He told Travers to stop several times and
then helped Travers drag the inmate into the cell.
bang the inmate's head on the edge of a steel cot.
and then ran to a green phone and sounded an emergency (Code 1).
came quickly and Travers stopped the assault as feet were heard on the stairs.
When Charette, Miller and Long arrived, the inmate was pinned against the
bed.
bed.
Travers "lunged"
He then threw
Travers then began to
Schuit told him to stop
Help
Charette told Travers to release him and told Colquhoun to sit on the
The door was then locked and Schuit left the area.
Travers' story is quite different. He said that he was still on the
top step when Colquhoun raised his right fist and said "I'll get you"
Travers said that he believed the inmate was very angry and Schuit's back
was turned at the time.
to struggle. He said that he scuffled with him and that the inmate was
struggling hard.
In self-defence, he grabbed Colquhoun and started
He called on Schuit for help, who gave a few kicks.
When he got control of Colquhoun, he dragged him to the cell and held him
until help arrived.
Office with Sergeant Charette.
Then he released Colquhoun and went to the Programme
Colquhoun was not strip-searched, as is customary when an inmate is
placed in segregation, nor was he taken to see a nurse or doctor at that
time.
checked Colquhoun at about 6:50a.m.
When the new shift came on duty, Correctional Officer Barry McDonnell
The inmate was lying on the bed, and
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nothing seemed to be wrong.
about 9:00 a.m. that Colquhoun asked to see the Superintendent to complain
about Travers. He first met with Sergeant Miller and McDonnell and
explained his complaint about being assaulted by Travers. No complaint
about injury was made.
He was served breakfast and it was not until
Shortly thereafter he was examined by Dr. Preston Zuliani, a doctor
who visits the Centre twice a week.
several very trivial bruises (a 1 x 1 centimeter bruise near the left
eye; a small bruise over the left nipple, a small abrasion on the chin
and two mild tender spots on the scalp). There was no tenderness elsewhere
on the body. Zuliani testified that if someone had been kicked several
times, he would expect to find bruises, abrasions or tenderness, and if
his head had been beaten on a steel bed, he would expect to find bruises
at least.
evidence of excessive force.
Zuliani .testified that he found
There was evidence of neither and in his opinion, there was no physical
The grievor was subsequently discharged on March 5, 1979. He was
later convicted of assault in Provincial Court on charges pressed by
Colquhoun and given a conditional discharge in July, 1979.
appeal , according to his testimony, because of financial problems.
He did not
Deci s i on
There are three grievances to be discussed. The first is the horseplay
incident.
Rather, it is the significance of that conduct which is the subject of
debate. The union argues that the grievor's conduct was blameless - just
an example of the joking which often occurs in the institution, particularly
There is no conflict in the evidence as to what occurred.
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on night shifts, to reduce tension and to keep up morale. Furthermore,
it was suggested, penalization of the grievor would be discriminatory
here, as other officers had been involved in comparable incidents
(e.g. making noises over the intercoms; dressing up in riot equipment
for picture sessions) and they had not been disciplined. According
to the principle established in Re United Textile Workers of America
and Long Sault Yarns Ltd. (1968), 19 L.A.C. 257 (Curtis),
disciplinary action which is imposed in. -a discriminatory fashion is discipline
without just cause.
After considering the evidence, we cannot agree that the reprimand
for the horseplay incidents was unjustified.
been engaged in joking behaviour, and 'while there were several examples in
While other guards may have
evidence, these other incidents are not of the same significance as
that which occurred in this case.
with two of the communication systems in the Maximum area. While there were
other comnunication systems available if one should fail (e.g.
a panic
The grievor intentionally interfered
button, intercom and telephone), this does not excuse his conduct. It was
irresponsible and thoughtless conduct, and the employer can well be concerned
about the tampering with equipment.
inappropriate in
light of the inexperience of his co-workers Wilson and Long, and
The grievor's conduct was particularly
in light of the fact that he had voiced concerns about possible trouble with
inmates in the area to Corporal Miller earlier in that shift. Overall,
he showed a lack of judgement, and the penalty assigned for the conduct
was the minimum available, and justified in the circumstances.
The second incident involves
the request form, and here we have two
divergent stories. Travers says that he was ordered to destroy the form;
Charette denies giving such order.
of ripping up the form justified disciplinary action turns on a finding
The decision as to whether the act
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of credibility between the two witnesses. If the gri vor was n t ordered
to destroy the form, then the conduct must be regarded as just cause for
disciplinary action.
for they provide the inmate with the major method by which he can
contact people outside the institution.
to a Ju stice of the Peace regarding police conduct is not to be decided
by a correctional officer’s assessment of the validity of the complaint.
That is for the ,justice of the Peace to decide. All of the correctional
officers who gave evidence with regard to request forms agreed that
completed forms should be forwarded to the Sergeant’s Office for action.
Even though several of these officers testified that they had ripped
Completed request forms are important documents ,
The fate of an inmate complaint
up request forms and not been disciplined for doing so, this cannot alter
the gravity of the alleged conduct in this case. It is a very different
matter to rip up a form because an inmate has changed his mind about the
request or because a duplicate request has been made than to destroy a
sincere request, which the inmate wishes to press. Intentional destruction of
such a request form cannot be excused.
Therefore, it must be decided whether Charette gave the order to
destroy the form.
order.
up for himself by denying the order, yet it must be asked why an experienced
supervisory officer would give such an order in the first place.
Immediately, one must ask why he would give such an
It was suggested by the union that Charette was trying to cover
It was suggested that certain members of staff, indluding\Charette,
It should perhaps be mentioned at this were out to “get” the grievor.
point that Charette was also involved in the third incident involving
the assault, and the union argued that the three grievances showed a
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pattern of harassment. The union also sought to show a lack of morale and a
cleavage between different groups among the staff of the Niagara Detention
Centre.
An examination of the conflicting evidence in the third incident,
which will be discussed below, has assisted in the disposition of the second
grievance and led the Board
to accept Charette's evidence over Travers' story
in this particular incident. The Sergeant does not appear to have any
reason to lie here. Travers, in contrast, has experienced difficulties with
inmates and did find Langhor a complainer.
That leaves us with the question of the appropriate penalty for
the destruction of the request. While we are reluctant to interfere with
management's assessment of an appropriate penalty, there are two reasons to
be concerned about the penalty here.
was disciplined
so severely (two days suspension) when the original officer
who took the special request on the Assistant Superintendent's orders and'
First, it must be asked why Travers
then failed
to process it, was not disciplined. Surely, his conduct was
equally serious. Secondly, why was there a delay in taking disciplinary
action? Charette said that he felt the whole incident was over with his
counselling Travers. Then ten days later, on August 28, he was asked to
write a report, as was King. Eight days after that a suspension occurred.
It was suggested that the Ombudsman's involvement triggered the action.
That was not proven, but the delay and the selective action do cause concern,
and as a result, the two-day suspension seems excessive in the circumstances.
Pursuant to s.18(3) of The Crown Employees Collective Bargaining Act, S.O.
1972,
c.67, as amended, we would substitute a written warning for the suspension. The
grievor should be reimbursed for the two days without pay.
Finally, we turn to the third incident, the assault. In this incident,
too, we have very contradictory evidence, some involving Charette and Travers
and some involving Schuit and Travers. The problems start with the interview
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between Charette, Travers and Colquhoun in the Minimum hallway. Travers claimed
to be calm;
difficult
to know which story to believe, yet it is important to do so, in order
to assess the significance of subsequent events.
Charette claimed that he was upset and interrupting. It is
It might be asked why Colquhoun
was sent to segregation if he was calm, as Charette stated, and Travers upset.
The explanation may lie in the need to cool things off and the best way
to do this would be to separate Colquhoun and Travers, who both appear to have
been somewhat short-fused that morning.
one must then question Charette's wisdom in allowing Travers to escort the
inmate to segregation, both when Charette was present and when he left Travers
with Schuit.
Doorway to the segregation area when Schuit met them.
this evidence, and says that Colquhoun was upset.
If this is the explanation, however,
Charette said that both Travers and Colquhoun were calm at the
Travers again contradicts
We have concluded that things were indeed calm at that moment, for it
would be extremely unlikely that an experienced officer with supervisory
obligations, such as Charette, would leave the two alone if Colquhoun was still
visibly upset.
occurrence, which must be regarded, understandably, as somewhat self-serving.
Therefore, we reject Travers' account of this part of the
Nevertheless, even if things appeared under control, it is most
disturbing that Charette left the scene at this moment. Several officers
stated that it is customary for the sergeant to accompany an inmate and the
other officer or officers to segregation.
plus act as a witness if further difficulties occur.
rule that the sergeant accompany the inmate for these reasons.
wisdom of Charette's decision to leave at the doorway leading up to the segregation
area must be questioned.
one of the officers involved in the original incident leading to the decision
to send the inmate to segregation is an escorting officer.
He can provide a steadying influence,
At present, there is a
Therefore, the
This is especially true in this fact situation, where
Charette testified
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that the grievor had been very upset only a very few minutes earlier.
would he allow the grievor to stay with the inmate? His decision to do so must
be regarded as an error in judgement, influenced perhaps by his desire to complete
the shift change and leave work.
have taken approximately ten more minutes, and subsequent incidents and
(this arbitration) might have been avoided. This error in judgment does not
Why, then,
However, to accompany the group upstairs would
excuse the subsequent conduct. However, it is relevant to an assessment of the
penalty in the case.
Returning to the assault evidence, we have conflicting evidence, again,
about what occurred on the second floor. Schuit's evidence would lead one to
believe that there was a violent and brutal attack on Colquhoun, with many
blows and kicks.
feared for his safety and acted in self-defence and any apparently excessive
force could be explained by the failure of Schuit to assist in subduing the
inmate.
Travers, on the other hand, would have us believe that he
After reviewing the evidence, we have concluded that neither Schuit's
nor Travers' story accurately portrays what occurred on February 5, 1979.
Travers would have us believe that Schuit is totally fabricating his story
as to what occurred. What would
Schuit have to gain by lying about the incident? He initially filed a report
(Ex.16), which covered up any excessive use of force. Subsequently, later
It is difficult to accept this proposition.
that day and after some thought, he decided to submit a further report, in a
markedly different tone (Ex.17), which accused Travers of using excessive
force.
by peer group pressure, that is, a feeling that one should
One suspects that the tone of the initial report was motivated
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not inform on a fellow officer. Subsequently conscience appears to have influenced
Schuit, and he revised the report. The result has been marked distrust by several
officers who testified, and that would likely be a strong deterrent to informing
on another officer.
In addition, aside from motive, if one compares Travers' evidence to
Schuit's, the grievor's evidence is less convincing.
stated that he was on the stairs when Colquhoun raised his fists and that Schuit's
back was turned.
field
of vision if he was indeed on the stairs at that time (Ex.7).
the grievor would be at least eight feet from Colquhoun if still on the stairs,
which would surely lessen the immediacy of any threatening gesture from a
raised fist.
For example, the grievor
Yet Schuit was inside
a door and would be outside the grievor's
Furthermore,
But even if Schuit does not appear to have a motive for lying, the
grievor's interpretation
of the evidence must be examined, for it raises
important considerations with regard to the precise degree of veracity of Schuit's
evidence. Even if Schuit appears to have no motive for lying, events occurred
very quickly and the atmosphere was very tense, to say the least, thus causing
problems of perception. We have concluded that, for whatever reason, Schuit
appears to have exaggerated the degree of violence which occurred. From the
medical evidence of Dr. Zuliani, plus the almost perfunctory way in which
Colquhoun was locked up and left after the incident, it is difficult to accept
Schuit's evidence about the number and severity of the blows.
one would expect some type of injury to have occurred.
inmate was struggling, as Travers testified and as we believe, it would be
difficult to get in full kicks and blows.
violence which Schuit described, it is surprising, even shocking, that Schuit
would not try to intervene to stop the altercation.
If he was correct,
Furthermore, if the
Finally, if there was that degree of
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As a result, while the evidence is not as clear as one might wish, the
following conclusions appear to be justified by the evidence.
the grievor did use excessive force against Colquhoun, although not to the degree
described by Schuit.
final straw in the series of encounters between Travers and Colquhoun which
started with the wakeup call. As another panel of this Board has stated in
Thomson and The Ministry of Correctional Services, 128/78, it is unwise to try
to define the precise degree of acceptable and unacceptable use of force (p.26).
In a tense situation, one must take into account the fact that it may be unfair
to second-guess a person in a position of danger as to the threat faced.
correctional officers testified that they would subdue an inmate who raised his
fists at them, although in cross-examination, the likelihood of doing so was
qualified and reference was made to the distance of the fist, the physical
area in which the threat occurred, and the inmate's history.
It appears that
It seems that Colquhoun's raised fists proved to be the
Several
Here, we are dealing with an incident in a confined area. The inmate
had been in the Centre several times for a variety of charges, including theft
and breaking and entering. He had been sent to segregation several times for
incidents involving throwing water, refusing to clean his area and assault on
another inmate. He is about 5'8" and 160 pounds in weight. Several officers
testified that he
was a problem inmate.
Even with these facts in mind, however, it is difficult to believe that
the grievor needed to use physical force to subdue Colquhoun.
to have been at a sufficient distance from the inmate to make it difficult to
believe that he felt seriously threatened.
as he testified.
threat.
interpret the evidence in the manner most favourable to the grievor, he may have
The grievor appears
He could not have been on the stairs
He is a tall, husky man, so that Colquhoun's size would be no
Overall, he appears to have over-reacted to the raised fist. To
erred in his judgment in assessing the threat posed by Colquhoun's raised fists.
Even
so, the use of force to subdue the inmate appears to have been unnecessary
or at least premature, if the circumstances are viewed objectively. However
even if the use of force was unnecessary in the circumstances, we are not prepared
to accept Schuit's evidence in total as to the degree of violence which occurred,
for the evidence does not support him.
With that conclusion, the next question to be addressed is the proper
a reprimand penalty to be assessed.
of December 19, 1977 (Ex.18) regarding inmate treatment; a reprimand of
September 5, 1978 regarding horseplay; and the two-day suspension under consideration
here, which we have reduced to a written reprimand. He has a relatively short period
of seniority (just less than two years at discharge).
The grievor has a chequered work record:
His work record is not
the best, and he has had problems dealing with inmates before.
On the other hand, he did complete his probationary period. The
testimony of officers like Miller and Charette indicated that part of their
rating of him as an average or below average employee derived from a dislike
of the grievor personally.
of the case and to the behaviour of Schuit and Charette here. Their conduct
may not excuse the grievor's behaviour, but it did contribute to the unhappy state
Furthermore we must give consideration to the facts
Of events and is relevant to the penalty.
in not accompanying the grievor to segregation or in not sending another
Charette made a serious error in judgment
officer in his place.
made an error in proceeding into the cell area and unlocking the door without
waiting for Colquhoun and Travers to enter. He knew that both Travers and
Colquhoun were keyed up while mounting the stairs and he should have been
Schuit, while not informed of the prior incidents,
alert to trouble. Furthermore, he should have intervened in the altercation
- 19 -
if he truly believed that force was unnecessary or excessive. An officer has a
duty to protect inmates and if Colquhoun was being abused, he should have intervened.
While arbitrators are reluctant to second-guess management as to the
appropriateness of corrective discipline, it is sometimes necessary to revise
the penalty assessed in order to take into account certain factors which may have
been insufficiently considered. In this case, although we are concerned about
Travers' ability as an employee and his prior record, and his short period of
seniority, we are not prepared to find that discharge is warranted. The grievor
has made an error in judgement in the Colquhoun incident and acted to subdue
the inmate without needing to do so. This excessive use of force warrants
disciplinary action. However, we feel that discharge is excessive here. The
assault incident, while very serious, was provoked in part by others' errors
in judgment. The grievor has already been punished in the criminal courts
for his action, and a lengthy period of suspension will emphasize the gravity
of this conduct, both to the grievor and other employees. While the excessive
use of force against inmates cannot be tolerated, and such conduct must be
deterred, at the same time, one must look at what happened in each case.
Here the use of excessive force seems to have occurred because of an error in
judgment, rather than a malicious attack, and it was caused, in part, because
the grievor was placed in a vulnerable position by his fellow employees.
Finally, even if the assault is regarded as a culminating incident, the
request form and horseplay incidents are not so closely related as to show an
inability on the part of the employee to conform to acceptable standards of
behaviour in the future, particularly when the assault incident is characterized
as the evidence appears to indicate.
The final question is the appropriate penalty. By s. 18(3) of the
. Crown Employees' Collective Bargaining Act, S.O. 1972, c.67 as amended 1974,
c. 135; 1978, c.79, this Board can substitute a "just and reasonable penalty
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for discipline or dismissal which appears to be excessive". By s.18(3a) and
(3b), that discretion is limited in cases such as the present, where excessive
force is used
in a correctional facility:
(3a)
the Grievance Settlement Board finds that an employee who
works in a facility,
Where, in exercising its authority under subsection 3,
has applied force to a resident in the facility,
except the minimum force necessary for self-defence
or the defence of another person or necessary to
restrain the resident; or
has sexually molested a resident in the facility,
the Grievance Settlement Board shall not provide
for the employment of the employee in a position
that involves direct responsibility for or that
provides an opportunity for contact with residents
in a facility, but the Board may provide for the
employment of the employee in another substantially
equivalent position.
(3b) In subsection 3a,
"facility" means.. .
(vi) a correctional institution under The Ministry of
Correctional Services Act, 1978...
"resident" means a person who is an inmate, patient, pupil
or resident in or is detained or cared for in a facility.
That section prevents us from reinstating the grievor to a
position where he would have inmate contact. In light of the
grievor's serious error
in judgment and his difficulties in
handling inmates, we would be loath to do so, even absent that
statutory provision. We are concerned about the grievor's
ability to deal with inmates, particularly his judgment
in
handling them. However, we are not convinced that the
grievor cannot provide the Ministry with acceptable service
in another job in which he does not have inmate contact.
- 21 -
Therefore, in compliance with the statute's instructions, we would allow the
grievance regarding the assault and order that the grievor be reinstated forthwi-
in another substantially equivalent position in the Ministry which he is
qualified to fill. Because the grievor was at fault in the incident and
because he did use excessive force and in order to emphasize the gravity
of such conduct, we are not prepared to award backpay or accrual of
seniority credits since the discharge. This amounts to a very lengthy
period Of suspension in the circumstances, but it will emphasize the
gravity of the conduct.
The Board will retain jurisdiction to deal with problems in implementing
this award including determining what constitutes
a "substantially equivalent
position," should any arise.
Katherine Swinton
Katherine Swinton, Vice-chairman
"E. R. O'Kelly"
E. R. O'Kelly, Member
(partial dissent to follow)
Dan Anderson, Member
Toronto, Ontario
May 29th 1980
bq