HomeMy WebLinkAbout1980-0430.McQueen.82-04-02CROWN tMPLoittS
GRIEVANCE
SETTLEMENT :i
BOARD
.430/80
IN THE MATTER OF AN ARBITRATION
I Under
THE CR&N EMPLOYEES COLLECTIVE BARGAINING ACT
Between: !
Before:
For the Grievoi:
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (A. T. McQueen) Grievor
- And -
The Crown in Right of Ontario
(Ministry of Correctional Services) Employer
R. J. Delisle Vice Chairman I. Thomson Member A. G. Stapleton Member
I. Rolland, Counsel.
Cameron, Brewin & Scott
For the Employ+r: P. Van Horne, Staff Relations Officer
/ Personnel Branch
Ministry of Correctional Services
Hearing: February 22, 1982
The qrievor complains that he has been unjustly
:.. disciplined for an incident that occurred on April 7, 1380.
The discipline involved a reprimand and a'removal from duty
without pay for a period of three days. The allegation
pursuant to which the discipline was imposed was that on
Monday; April 7, 1980 while on duty at the Toronto Jail the
qrievor entered a security corridor without a Correctional
Officer cover and in so doing was negligent in his duty and
jeopardized the safe custody of keys.
The griever- testified that on the evening of
April 7, 1980 at 2300 hours he was the officer in charge of
the second floor and while patrdxlinq Corridor 2C South
observed some cells which were in total darkness. In order
to perform his duty..@ ensuring the presence of the inmates
and their safe condition the grievor entered the corridor
and ordered the occupants to remove the obstruction over
their night lights. The 9rievo.r admits that the performed
this manoeuvre while in possession of the keys and also
without any cover. He justifies his action on the basis
that at that time in the evening the deadbolt was in place,
he had ensured the same by checking the panel lights;
outside the corridor, and that therefore no inmate could
escape from his cell even if he was in possession of a key.
The grievor noted that he remained at all times out of arms
reach of the cells and 'therefore submits that he was never
in any danger from the inmate population. The grievor
Eurther justifies his actions by insisting that his
Supervisor, Doherty, authorized such a manoeuvre a week
previously.
The Supervisor, Doherty, t,he Assistant
Superintendent, Nicholson, and the Superintendent of the
Toronto Jail Starkie, all testified, .t and were consistent
throughout, that it is of the first importance thatno
Correctional Officer shall ever enter such a security
corridor without cover nor shall he enter such corridor
without first turning over all keys in his possession, _~- .:.
except those required in the corridor, to the officer at the
grille. This second requirement is seen in the Standing
Orders and Regulations of the Ministry, specifically
Paragraph 8, Item 4 under General Rules for Control of
Keys. All three management witnesses recognize that there.
is no express statement within the Standing Orders and
Regulations with regard to the first command, that an
officer not go unobserved into such a corridor, but each
maintain that it is, while an unwritten rule, a firmrule.
In addition the Supervisor, Doherty, was emphatic in his
denial of any authorization flowing from him to the qrievor
for such a manoeuvre. We accept Doherty's evidence that he
would never give such an instruction. The management
witnesses were consistent in their opinion that even though
there was an indication from the panel lights that the
deadbolt was in position it has been known for such a panel
to give an aberrant reading and for an inmate to be able to
effect an escape should the keys come into his possession.
-
-Further, their expert evidence was to the effect that any
~officer entering the corridor exposed himself to the danger
.of being hurtby flying.objects from the cells and that her
would be in a most vulnerable position if there were no
Correctional Officer witnesses to his movements. We accept
this opinion. The, inmates normally kept in Corridor 2C are
prisoners who are regarded by the institution as their more
dangerous type of inmate, those inmates who they feel are
destined, should a conviction be forthcoming, to serve time
in the penitentiary. All management witnesses described the
orientation courses and training programs to which
Correctional Officers are subject and note th,at the qrievor
has received' the same instruction. It is their consistent
view that during such courses a Correctional Officer is
advised never to enter such a security corridor without
cover. The cover isregarded as part of the security system
within the institution since the cover performs the role of
witness and it is not normal for inmates to misbehave if
:~!:they are being viewed by such a witness.
A most troublesome point occurred during the
course of t!he hearing relating to a note in the Corridor Log
Dook purportedly entered at 0630 hours on April 3, 1980
which entry reads:
"Verbal conversation with Doherty.
Permitted to qo into corridors,
deadlocks on, no cover. Signed
McQueen."
It was suggested in argument that this entry was
made after the incident.on April 7, 1980 and was
actually
an attempt
on the grievor's part to cover himself and at the same time
implicate a senior officer. It was suggested that this
indicated a full awareness on the grievor's part that his
behaviour on the evening of April 7th was against all the
rules -and regulations of the institution., 'We have had a good
deal of difficulty with this accusation since the
circumstances are such as to cause a good deal of suspicion
that the entry may have indeed been so made. At the hearing
the grievor described the exchange with Doherty as something
less than a conversation. In fact he described it as a
question coming from himself to Doherty with regard to
whether it was proper for a Correctional Officer to enter a
corridor, deadlocks on, without cover, and such question was
addressed to Doherty in a casual way some distance from
.I Doherty with an impression formed by the grievor that
Doherty's response was in the affirmative.. Considering the
‘lous nature of the accusation we are not prepared, most ser
in spite
that the
of the suspicious circumstances, to make a finding
grievor was.lying in his evidence before us and
guilty of falsifying records within the 'institution. Tie are
prepared to give the grievor the benefit of the doubt;
considering the personality ,observed by us during the course
of the hearing and the grievor's extreme taciturnity it is
possible that the grievor really believed that he was
permitted to go into the corridor, deadlocks on, no cover.
Some support for that possibility rests in the fact that his
report to the Superintendent dated April 7, 1980 refers
to his entry into the corridor for ~the purpose of checking
on the inmates; this indicates some bona fides on the Dart
of the grievor in that the evidence of the Superintendent
was that he would not expect a guard to go into the security
corridor in such circumstances, but that rather he would
expect the guard to use a flashlight from the walkway
provided. '< Although we~are prepared to make this finding in
the ,grievor's favour with regard to his bona fides that does
notend the matter. ._.
We ares satisfied that the rule, that
correctional staff are not to enter a security corridor
without cover and most particularly not while they are in
the possession of keys .is a rule enforced within the
institution and that all correctional staff are expected to
know and abide.that rule. We'are certainly not prepared to
say nor do we have the jurisdiction to say that the
precautions being taken are an over-reaction. It is not for
us to determine the appropriate security measures to be
taken in such a situation but rather for the experts. It
may appear to outsiders to be an over-reaction but the
security procedures are there to ensure over-all protection
in case other security checks do not come up tom their full
measure. We would expect an officer of NcQueen's
experience, some five year's service, and with his training
to clearly understand this rule and we find him to be
negligent in relying on the "conversation" with Doherty to
\
relieve himself from this requirement and to violate this
cardinal rule on the described minimal reaction from his
Supervisor to his request for information.
The question for us is whether such negligence
deserves the discipline awarded in this case. We were most
impressed with the evidence of Superintendent Starkie in his
description of how he came to conclude a three day
suspension was an appr0priat.e penalty.~ :ie noted that in
determining a penalty he would normally take into account
first the previous record of the grievor, second the
seriousness of the incident, and third what previous
penalties had been given for similar misconduct. 'de was
properly concerned with how other Correctional Officers
would perceive the incident and the appropriateness of the
penalty. He noted that the grievor's previous record is not
event free and that there is one instance of a two day
penalty for failing to make sufficient entries into a log
book. He also notes that over the past few years there has
been some concern with regard to the grievor's suitability
for his present position and some effort made to retrain the
grievor. With regard to the seriousness of the incident the
Superintendent regards it as-a standing rule in all maximum
security institutions that unless there is an absolute
emergency no Correctional Officer should enter a security
corridor without cover and that the grievor's conduct *was a
direct contravention of the rules capable of glacing many
lives in jeopardy. Finally, he noted for us that with
regard to previous penalties he recalls +, L#o previous similar
incidents where in the first incident there was a one day's
loss of pay and in the second incident ten da.y's loss of
9ay. Unfortunately, we know little more about those
previous incidents to:-assist us in drawing comparisons. The
Superintendent also formed the view that the grievor was :
lying about his conversation with,the Supervisor and took
that into account as well in assessing penalty. It is with
a great deal of hesitancy that we move to alter the
discipline imposed since it appears to us that the
Superintendent is obviously in the best position to know the.
total impact on his officers of too lenient a discipline for
such a security problem. We respect the thought:'that the
Superintendent imposed the discipline as a corrective
measure ashe seeks to communicate to this officer just how
serious was the breach of security. Nevertheless we
conclude that a written reprimand, along the lines of the
letter by Superintendent Starkie dated Hay 15, 1980, should
appear on the grievor's record with the deletion of the
liability of three day's away from d-uty without pay. We do
this primarily because of our different view regarding the
grievor's good faith; negligent conduct deserves less of a
penalty than deliberate wrongdoing. We hope that the
hearing before us together with the written reprimand will
sufficiently communicate to the griever the need for a
change by hxn in hLs approach to the position of
Correctional officer.
DATED at Xingston this 2nd day of April,
1982.
Vice-Chairman
L- Mr. I. Thomson,~ Member
Yr. A. G. S/tapleton, Member