HomeMy WebLinkAbout1979-0228.Sukhu.87-02-14‘$
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IN THE MATTER OF AX AR?ITFATIO:i - _ :
Under
Tk;Z CROWN E,WLOV~'ES COLLECTIVE 3ARGAINII:G ACT
:. .: . - Before
3etween: -.
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Eefore.i ?.
: 1.~. YzcGrecor -I xemher ,. -.
_, . . ,.
-"or tte.,Grievor:.. Ri.&na#, @Znse& Cameron, Brewin i Scott'.'
.i, .'. . _ I,. ,
.,
ior the Enplo:&: M. Chitra; Co&ii
., ,, .., '3 I Legal-Services Branch. ,
Xinistry of Csrlecti5nal Ser.: ~FCSS
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DA of searing: S&&)er 4 " "'Y 'L , 1531. -(LnLerim Award),
_' ., Fe+ua~ry 18, March ll,.Xs:J.14, 1982
(Substantive Awarh)
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AWARD
This arbitration involves review of discipline which
*as imposed some time ago, in 1979. On July 2, 1979, the,
grievor, who was a Correctional Officer holding the rank
of C.O. 3 (Corporal), was involved in an altercation that
occured in the Head Shift Officer's Office/Control Room
of the Ximico Correctional Centre. The discipline under
review was based upon this altercation, which was between
the grievor and the Head Shift Officer, Mr. R. Kennedy,
and the events leading up to the altercation. On July 25,.
1979, the grievor was suspended without pay for 10 days.
There were two grounds set forth by the Employer for
imposing this level of discipline. One ground was that "You
assaulted .Xr. R. Kennedy, Head Shift Officer". The
second ground was that "Your conduct during this incident
was not consistent with the expectations of an employee
of this klinistry and especially of an employee holding
your rank". .Xr. Carl C. DeGrandis~, the Superintendent of
the Centre, added in a letter to the grievor with respect
to this latter ground, "I am satisfied that, beginning with
your receipt of orders from H.S.O. through the 12 Building
Officer, you did exhibit, in front of subordinate officers,
colleagues and superior officers, inappropriate conduct."
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The grievance leading to this arbitration followed in -
due course..* _
At the end of the hearing, the Board notified counsel
for the Union and &ployer that, based upon the evidence
.that had been heard,in.t&e case,. the.Board was unprepared
to sustain the imposition of any discipline upon the
grievor on the basis of the first ground, i~.~e., assaulting ._
Mr. Kennedy, the Head Shift Officer. In addition, the
Board indicated that it would not be prepared to sustain
imposition of a penalty so severe as a 10 day susF:ension .
upon-then second ground fork discipline,,which, for con- I. _.
venience we,shall call conduct unbecoming an employee of .~
the grievor!s.rank. In accordance with ,these rulings,
counsel limited their arguments to (1) whether any
discipline_was-warranted on the second ground; and, (2)
if so, what should,ha?re beenthe appropriate level of
discipline imposed! .‘;
For reasons which will become evident from what
.fo.llows in this Award, we conclude that some discipline
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This Boardissued anInterim Award in response to a preliminary objection'made by the Union at~.the commencement of the hear- ing in this case on Sept. 4181. The objection was in the
nature of a motion to strike the second ground for discipline, i.e., conduct inconsistent with the expectations of an employee holding the grievor's rank. The objecticn was based
up failure to provide particulars.. For reasons set forth in
the Interim Award, we denied this motion, and on Feb. 18/B? _ _ -n--.r.rr-d -_ hsi.r +hd er?hs+nntive case on both OrOunds for
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was warranted; however, the level of discipline should.be
reduced to a written warning bearing a date of July 25,
1979, which was the date of the letter from Mr. DeGrandis
in which the grievor was notified of his 10 day suspension.
To this extent, the grievance is allowed.
All of the~events involved in the imposition of
the disciplineunder review occurred on July 2, 1979, which
was being celebrated as Dominion Day in that year. Several
witnesses testified at the hearing as to what they observed
on that day regarding the matters leading to.this arbitration.
We do not intend to undertake an extensive review of the
evidence given by each of these,witbesses. As might be
expected from the fact that almost three years have elapsed
between the incident and the hearing, the testimony of
these witnesses did not always agree on each and every
detail. In these circumstances we believe that it is
most appropriate to set forth 'in a narrative fashion the
events as we apprehend them from our review of all this
testimony.
On July 2, 1979, the Mimic0 Correctional Cent&s was
having a field day in celebration of the Dominion Day
holiday. About 90% of the inmates were expected to take
part in the activities of the field day, which included
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games, races, etc., for which they might win prizes.
The field day was to take place on the playing field
of the institution,' which was a large L-shaped area r . outside the main gates.
:_ Th,e Head Shift Officer on that day was Mr. R.
Kennedy, a C.O. 4 (apparently equivalent to a.Sergeant). -:_ .
He.was respon.sible for organizing, a, security _
to prevent any escape of inmates from the area of the .~' ,.s .,
-playing field,, According to the usual practise in these r '_
situations, he decided to post several Correctional . I .: _~.,-~.,
Officers~ around the,,pqrimeter of the field and have I
dthers roving about the field in order to direct the
other officers,toward various areas of activity as the
inmates shifted from place to place on-the 'field. This 'i : _~ '.'
+kind of duty is,called "p,icket" duty. It is usually : .,.
I. .: performed by officers holding a rank lower than CfO. 3. I . -I
When the correcticnal facility is shorthanded, however,
it is not uncommon for C.O. 3's and even hi~gher ranking
Correctional Officers to go out'on picket duty. ,. '.
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_ Recause ,this tias.a holiday, the institution was
short staffed. Consideri,ng. that 90% of the inmates :
would be out on the playing field, Mr. Kennedy-decided
that it would be necessary to call upcn at least one of
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the C.O. 3's to perform picket duty. He decided on the
gri evor . He had Control call sumber 2 Unit, where the
grievor was Unit Supervisor, to request the grievor to
report for picket duty in the field.
At this stage, it is necessary to go into the state
of mind of the grievor when he received this message from
Mr. Kennedy. Over a considerable period of time, there
had been growing in the mind of the grievor considerable
resentment toward Mr. Kennedy based upon a suspicion
that Mr. Kennedy delighted in antagonizing and humiliating
him. The grievor is slight of build, soft-spoken, and
highly educated. He holds several-degrees. Mr. Xennedy
is a large, military-set man, who tends to attempt to
control situations by dint of his considerable presence
and brash manner. It would be understatement to say that H.r.
,Kennedy am&act& himself as,= autocratic leader. He was used to shout-
ing orders -- sometimes liberally peppered with epithets --
and having them obeyed without question.
In the period of weeks immediately preceding the
incident in question, it had been the grievor's impression
that, for whatever reason, Mr. Xennedy was singling him
out for more abuse than he directed toward fellow officers
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in the course of pursuing his aggressive style.of
managemept. It does. notappear to be necessary to -
,go into the details;of the.encounters which fostered
this, belief in.the,mind of the grievor. It suffices
to say that ,on several occasions when issuing a
direct order to.the griev,or, Mr. Kennedy swore at him.
At one point, not long before the incident in question,
the grievor lodged a' comp1aintpgajns.t Mr.,Kennedy
regarding, his.use of this kind of ,language in addressing
. . .ighf+ grievor. This complaint.did not bear fruit because, ' ~_ .
. eseentlallp, ~there were no-witnesses and,it became a
que~stion of the,grievor's word against that of Mr.
Kennedy. Nevertheless,~ the fact that the grievor had
lodged this complaint probably gave the griever more :
: _ reason then eve,r to fear,an incr,easing amount Of : .
p,ersec,ution or harassment from Wr, Kennedy. . '.&:
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,'. i, When the griever-received -Xr., Fennedy's directive '_ ',
,to report to th, playing..field for picket d$Fy, he! felt :c _'
that th.is, might be.more haras.sment in the formof an
,. attempt to humiliate him. His emotions became agitated, ,, .
. .although,,.hemaintained .a surface appearan,c,e of calm. . 1 .,
_ He decided ~to go to Mr. Kennedy's o.ffice~,in Unit 3. ~.
The route he had to take from Unit 2 to Unit 3 brought ,-
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him close to the gate through which the inmates had to.
pass on their way out to the playing field. Standing
at this gate was Mr.. John Fe:guson; the second in
command of the shift and apparently a good friend of
Mr. Kennedy. Mr. Ferguson had a walkie talkie to give
to the grievor for use in his assignment as a picket.
As the grlevor approached Mr. Ferguson, he felt that
he detected a smug smile on Mr. Feguson's~face. This
convinced hFm more then ever that the directive to
go out on picket duty was part of a conspiracy between
Mr. Rennedy and Mr. Ferguson to harass him. He became
more agitated. He refused the walkie talkie and.headed _, for Mr. Rennedy's office.
In order to get to Mr. Kennedy's office, the grievor
first haa to be admitted. to the Control Room, which always
was, locked. The junior officer on duty in Control, Linda
Ashley, a C.C. 2, admitted the grievor. She then watched
as the grlevor entered Mr. XeMedy’S office without knock-
ing . The grievor closed the door behind him. Through
the window in the door, Ms. Ashley saw the grievor pounding
his fist on Mr. Kennedy's desk. He appeared angry. He
was shouting. Because the door was closed, Ms. Ashley
could not make out the specific words that were being used
by the grievor.
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We only>have the testimony of the grievor and Mr.
,Kennedy regarding the precise sequence of events in
Mr. Kennedy's office. We conclude that the grievor went
into Mr..Kennedy's office with the intention to confront 3. .: _
hi,m with his..suspicion,s and demand an explanation why,
he, as opposed ,to..some ot+er officer, was being directed .* ~~
to god .out~on picket duty. When Mr. Kennedy replied, he '..
swore at, the grievgr , We accent the grievor's testimony . . .,,-
that,.Mr. ~Kenne,dy said, _ "Take the fucking radio and go out -. .
into the fucking .field." . ,. .~ ....~ . . .
The grievor lost control of himself. He began
~banging his fisf on p:.Kennedy's desk while shouting,
"Youcan't. speak to me_like, this!" Mr. Kennedy leaned a,_, ,. ~ . -
fowara while attemp@nglto~arise from his chair, and .I ,. '!. :, ,.
as he did.so his face was ,.brushed by. the grievor!s fist. -,, ,,
He .stood up~&,and began to.move toward the griever, saying,
'IMe&, you are assaulting me." The grievor, a much smaller . , ., -.
.man, wasCs,urprised.and.intimid,atid. He felt that he hadn't ._ ,:: -... ~~., .~
touched Mr. Kennedy. He backed toward the wall, replying, .
"I am.assaulting you?" .,
) .a ..Mr. Kennqdy replied, "Yes." And with that he kicked . _! !
the grievor in the shin. The grievor bent forward. As he:
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did so, Mr. Kennedy delivered an uppercut to the
grievor's jaw, splitting his lip and loosening at
least one front tooth.
It is not necesary to go into the details of
what happened after the grievor was struck by Mr.
Kennedy. Our only concern is with whether the grievor's
response to the direction to perform picket duty,
beginning with his receipt of the order and ending with
his pounding on Mr. Kennedy's desk, constituted misconduct
for which discipline ought to have been impoked. Our
answer to this question is, yes.
At the time of this sequence of events, the grievor
was a C.O. 3 (Corporal) in a paramilitary organization.
In such an organization, it' does not seem unreasonable
to expect a somewhat higher than ordinary level of
discipline to be adhered to by personnel. It seems
that the nature of their work would require observance
of this kind of stricter disciplinary code. Otherwise,
it might seem to be impossible for the individual
correctional officers within the organization controlling
this correctional facility to be secure in the knowledge
that in the event of an emergency, a disciplined and
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co-ordinated response would be forthcoming. For
this reason, it would not seem to be appropriate,.
to leave unchecked an instance where a legitimate
-orderof a superior officer was ,challenged in the
. way' in which the grievor-challenged Mr. Xennedy's .
order in this case.
At the hearing, the grievor conceded that the
order to perform picket duty was proper. He stated
that he did not challenge it on this ground, but rather
on the~ground that he suspected the oraer to be part
of a programof harassment .directed toward him by.Mr.
Kennedy. His challenge of,tbe order was made in a
violent and aggressive manner , within.fhe clear view and
'earshot of a.junior offic,er, Ms.:,Ashley. .._
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The-question whether the,grievor's suspicions were
justified, in the sense ;that they were based upon real . . . .
or imagined grounds,, d~oes. note enter. into the dete~rmina-
tion whether the grievor should have~been. disciplined. .
He should have been. The reasonableness of the griever's
belief that-he was being harassed,,.i.e., provocation,
is .appropriately considered on the question of
what level of discipline to impose. In this case,
1982.
DATED AT London, Ontario this 14 P? of July
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there seems to have been real provocation. The grievor's
own belief that he was being singled out for harassment
was confirmed as most probably correct by at least
one other independent witness. Secause of the existence
of this provocation, we conclude that the fault of the
grievor is diminished to the point where the conduct
' warrants imposition of minor discipline. In our view,
a written warning seems to be appropriate. The 10 day
suspension cannot stand.
The grievance is allowed in part. It is directed
that the 10 day suspension be removed from the redord
of the grievor and that he be compensated for all wages,
etc., lost during the period of the suspension. We further
direct that a written warning dated July 25, 1979, be
substituted for the suspension. This warning should be
limited to the ground that the conduct of the grievor
during the incident was not consistent with the expecta-
tions of the Ministry regarding an employee holding the
rank of the grievor.
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ADDENDUM
While I concur with the Award of the Vice-Chairman, I wish to add that the events that transpired in Mr. Kennedy's office should be considered in the light of certain evidence that was heard but does not appear in the Award.
Mr. Sukhu's evidence was that he proceeded to Control in order to get instructions as to where to place himself in the field. As the Griever approached Mr. FerCJUSOti near the gate, then qrievor asked him where he, the Grievor, was to place'himself in the field. Kr. Sukhu's evidence was that Mr. Ferguson arinned, shruqqed and said that he didn't know and told him to ask Mr. Kennedy. From .Mr: Ferauson's
grin, shrug and resoonse, he took it that Mr. Ferguson and Mr. Kennedy were in league. He proceeded to the Control Room.
Mr. Sukhu's evidence was that when he entered the H.S.O.'s office, he asked Mr. Kennedy where he wanted him in the field. It was to this question, according to the Grievor, that Mr. Kennedy -responded, "Take the fucking radio and go out into the fucking field", after which Mr. Sukhu responded by asserting that he could not be spoken to thatway.
In all other respects
DATED at Toronto this