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HomeMy WebLinkAbout1981-0555.Van't Hullenaar.82-01-20'3efore: For. the :Grievor,: For the Employer: Hearinqs : 'The'Crown. ifi Right of‘Ontar2: (Ninistry of Correctioaqi Services) E. :i . D. S. Goxdge, Csunsei Cameron, Brewin,rj, Sc3tt .?. F. 3er.edict >!anagz-, Staff Reiaticr,s i4inistry of Correctiocal Services i. s - 2 - . _- Yr. Karl Van't Hullenaar, a Correctional 3ff;cez 3 at the Hamilton-Wentworth Detention Centre. has grieved agains: his dismissal on July 29, 1981. . . The grievor was first employed as a probationary Correctional Officer on February 7, 1977. After serving his year, he became a Correctional Officer 2. On February 11, 133.3, as the result of a competition, he was promoted ro be a Correct- ional Officer 3, also known in the instirotion as a "team leader.,' The grounds for dismissal were fully stated in the letter of July 29, 1981 addressed to the grievor by Xr. X.D. Phillipson, Superintendent of the Detention Centre. it is . . Exhibit 2 and its substance may be summarized as foliows. After an investigation during the first three weeks of July and a prolonged meeting with the grievor on July 21, tne Superintendent had concluded that the evidence gathered during the investigation and also the admissions of the grievor himseif clearly established three charges;.. These were: 1) That on June 21, 1981, the grievor used force without justification against an inmate named FanJoy, tnat ne - 3 - had resorted to unprofessional techniques in questioci~g ?a?.;~:;, that he failed to report'the use of force Sy himself - ant a subordinate officer,' " '. :I 'L': '* and fhat'he belatedly submir.ted a falss ,. _ report about the 'incident, and-'further that'he had 'failed KS provide prober supervision of his subordinate. .., : -"' "(2,) ‘I " That on July 1, 1981, he used force against an inmate'n'amed-Staats without justification, t:nat he had resorred to unprofessional techniques in Guestidning the inmate and that he failed to report the use of force on that occasion. .., . ., / .c. (3)' That on Juiy 4: 19S1, 'he used force against‘s young inmate named Jerome without justif.ication.‘ . For clarity', ,'_. '. the three incidents will be referred to hereafter as the Fanjoy incident, the Staats incident and the Jerome incident. . '.:' The HamPltdn~Wentworth'Detention'Centre is a provinciai institution maintained by. the Minis,try of Correctional Services and accomodates more than 300 inmates, male and female, who may be awaiting trial or sentence or transfer elsewhere. it is a modern building with seven floor.s, the.fourth being reserved for more'difficult inmates, i.e. those'chargec with' seripus offences ,.' or considered to be troublesome or dangerous for.one reason or another. Apart from their cells, each groC:p has a <a;/-r-,-,I in which inmates mangle during certain hours, uhzch end a- 9 p.m. except on Fridays and. Saturdays. There is a ro-.ation system in that correctional officers rotate through three different shifts and also rotate their service on different floors of the building. During the period in question, i.e. she period between June 21 and July 4, the grievor was serving as team leader on the fourth level, where of course he had to deal with a number of difficult problems. The work at the institution is governed by the pro- visions of the Ministry of Correctional Services Act, Chapter 37 of the 1978 Statutes (now Chapter 275 in R.S.O. 1980) and by Regulations 515 of 1978 and 243 of 1979 made under Section 47 of that Act. The relevant provision in Regulation 243 of 1979 is the following: 7 - (1) No e5nployee shall use force against an inmate unLess force is required in order to, \ (a) enforce discipline arid maintain order within the institution: (b) defend the employee or another enployee or inmate from assault; (c) control a rebellious or disturbed inmate; or (d) conduct a search, but here force is used against an inmate, the amount of force used shall be reasonable and not excessive having regazi to '^ie nature of the threat posed by the inmate and all ot.her clrcmstances of the case. - (2) bihere an employee uses force against an irmare, r_'.e employee shall file a written repcrt Mth tne. Sunerlnrencent indicating the nature of the threat p&d by the irflate a& all other circumstances of the case. The work is also regulated ny.a series of "S~tanding Qrclers, '1 which officers are required tc study. The'aos: imcor- tant for the purposes,of this case is Sfanding.Crder 22, enrl,:led "Use of Force," as follows: .~ _ . ., . There are times.when it beccmes necessary fcrccrreccticnal staff to use force in dealing with inmates, this may occur *i.en . an inmate is,doing brm to himself,, other inmates, or sraff,. 'Nhen this ccc&ion arises, the following rules shall apply: ti, The officer(s) &ail use no more force than &necessary to hring abut the cessation of any overt act or assaultive bahaviour. (2) The officer(s) involved shall make a full written repor; .to the Suparintendent~ stating the inmate(s) name(s)‘involved, circirmstances surrcutiing the incident, injuries to inmate(s) or staff (if any) and the reason(s) it'was necessary to use. force. (3) khen force is used, the Chief Nedical Cfficer or nursing staff will carry out a medical examination as seen as practica?Ae to determine if injury occurred and render the necessary medical treatment. (4) when force is used on an inmate, an Accident and .Injury Report (Form 9890) will b? inittited. 'is 1' khere injuries are ircu&d by an employee, the~'&rben's Ccmpensation~ Card Form 7, Rev. 2-72, will be completed and suhnittedto the Shift Supervisor as per Standing Crder Xc. F.EFmma s0rJRcE-s; . -- Criminal CzIe Secticrs 25-1, 25, 27 -. 30, 31, 32, 33, 34, 35, 36 a-d 57. -- M.C.S. Regulations. Certain other language in Standing Cr-lers is a-s-, reievant, but need not be quoted ar chrs point. The charges against the grievor come to this: on three separate occasions between June 21 and July 4 there were flagrant . . violations of the rules set out in paragraphs 1 and 2 cf S:anding Order 22 as well as the provisions of Section 7 in Regulation 213. The grievance having been referred to arbitration, hearings were held throughout five days in November, December and January, during which much evidence was received and very f*Ll argument presented on behalf of the parties. It thus becomes necessary to state what was proved or admitted at the hearings and must be taken into consideration by this Board. The incidents of June 21, July 1 and July 4 will be reviewed separately and in sequence. I THE FANJOY INCIDENT, JUNE 21 On July 7, resulting from an investigation tSen being held (and after being questioned the previous day) the griever submitted a report which is Exhibit 7. He had not reported immediately after the incident, as required by Standing Crder 22. The text of Exhibit 7, addressed to Superintendent ?hillioson and headed "Alleged Assaults .on I/y by Staff" is as follows: i ; .> - 7- ., - Pursuant to our-discussion July 6/Sl'and in view of %e allegations made against me I submit tne follcjring informat:zn. DLie to.an assault that took. place in 4BL on .?idzi ;une 19/81 involving IIMS Allen C.,JcO985) and Thorn& J.(O432-21 an i investigation was conducted. .'Ihe I/MS +&at I. interviewed of. June 20/81 &are Katerenchuk D.,~'Ibcmas J.,~Al.lan C., arc? Allan R. (00825). At that point in time I deemed that no assault had taken place. &'June 21/81 I'reported for duty and !&. Keenar'P. informed me tkat' I/M A&rson W.'(OQ856) felt he was going to be assaulted.. I~spoke..to I/M'Arde&n.whd told me that I/X Fanjoy-.E (00796) atx,%ilvihill R. (00269’f ,yere muscling in 43L. He then informed me that 'chese~~two ivheels'forced I/>1 lhcmas to assault I/ti,Al.lan C. cn Friday. *This was confirmed by I/Y Allan i R. in the presence of I/M Ihcmas'. At thai point I/Y Ihcmas also confirmed the allegations so I told'him to go to an interview room and write ,a statementto.that effect. He csmpliti wit.icur argynent . At that .pdnt, I t&ked further with I/MS &ghes Y. (041891, l-&terenchuk D, Mulvihill]R., and Fanjoy F.. .[ .- At no time was any force used on any of the'interviewees by myseLf.or. W. Carraf*ello. , I did not order Mr. Qrrafiello' to Assault-any inmate nor did I assault I/MS Fanjoy and Ihanas J. in order to extraci information. I did however poke I/M Fanjoy E. lightly in the .* left~.upper chest with:my index,finger at some time during the investigatiop.. .~ : I went &,escort with Mr. Carrafiello arri 'W took I/Y Fanjoy to segregation. At no time &as any force-used during l that pericd. a ' On h&y 9, f.ollowing questions by Assistant Superin- tendent King,, the grievor submitte'd a second report, which in- :: cludesinformation not previously disclosed and contradicts the statement in Exhibit 7 that ."at,,no t'ime was any force used." The.text of the. second report, Exhibit 8, is as follows: Y -8- .?ursuant to my disczssicn *with ?r.:King cn +n:s dare I subnit tix following lrformation to assist :n the ccmpleticn cf the above investigation. Curing an investigation into an assault on I/:4 Allan C. (00985) by I/M '!hmas J. (045231, on June 20-21/8L I car:icl~:ti in and witnessed assaults on two I/MS ramely Fan~oy Em (00795) and tilvihill R. (00269). &en I/M Wlvihill was brought to my office I asked him questions rertainirq to his muscling in 4BL. He denied kncwing anything abut it. Wwever my information from other I/% ‘0s that he knew everything tit wasn't talking. I turned iO Xr. Carrafiello ard in a mocking voice said "he dcesn't 'know any- thing. '1 I expected Mr. Carrafiello to say something to the I,'!! bx he jest junped cut of the chair and grabbed I,':4 >tilvihill and whed him up against the wall. 'Ihe I/N insisted t?at he still knew nothing and that he was not muscling. &. Carrafiello then released the I/Y and I told h;n he (I/Y) was on two misconducts and I ordered .Xr. Carrafiello to take him to segregation. lbey then left my office and that is the last I saw of I/M Wvihill. Upon Rr. Carrafiello's return, some 5 (five) minuites later I instructed him to bring me I/M Fwjoy E, whom my infor- mant told me was the ;il "wheel" in 4BL. When he entered my office I again asked him questions concerning his muscling tiich he vehemently denied. I told him that I had talked to other I/M, and I hew damn well that he has the muscle. He again started to deny it so in sheer fArus- tration or anger I plrched him in the stomach. I then told him that he was on three misconducts and mh-. Carrafiello & myself escorted him down to segregation. He was mt, to my knowledge assaulted any further in that area. I/M Thanas J (04523) alleges that he was forced to write his initial statement implicating I/MS Fanjoy and tivihiil however this is untrue. His verbal agreement.was extracted under threat of a misconduct for obstruct and tien he was toid to pit it on paper he agreed. I later called I/M 'hanas back and told him to include on the b3ttcm of his statement that ii was given freely tiich he did. I cannot fully explain the mental torment that I have subpcted myseE t.hrough in trying to cover up this inc:tenr. After cur discussion I could see no way to escaps the in- evitable, with a clear concience. I am fully aware that I have shown blatanr un~ofessiznaiisrr and poor judgement during this entire ordeal ard I suMit %<n this statement and myself to you for whatever discipX.nar-1 aczicn that you deem necessary. Some of what occurred during the incident was observed by a CO2, Mr. Leon O'Connor. On July a, he gave a report to f:he Superintendent: his statements therein have been confirmed by him in sworn testimony before this Zoard. The text cfhis reocrr Sxhibit 14, is as follcws: '. While cn duty June 21-81 I was assigned to 4A staff staticn and around 10:30'a.m. 21-06-81 inmate Milvihill Randy.+ 00269 h~'brought to the CO3 office re an investigation in 4BL. At this time Cc)3 'Xr. Van't Fiullenaar had Mr. Carafiello‘paged'over the P.A. system. About 5 or 10 minutes 1aterW. Carafiello CO2 arrived at the CC3 Ioffice. Mr.-Van't Hullenaar CD3 Mr. Carafiello CC2 ax&&. *Lee?. were in the CO3 office. Mr. Veennan was in the 4A staff station along withmyself. &ring the imkstigation Mr. Veerman ard myself heard a commotion corni% frcm the CO3 office. I went to the door leading into the CO3 office from 4A staff station and look& thro1;~h 1 the window. I saw ti. CarafieUo who had both hands around inmate ( Wvihill Randy's throat ard he bar@ the back of the inmates head against the wall. At this time the inmate's face was getting quite red. At this pint, I returned to the 4A staff.station and told Mr. Veerman what had happand and advised him not to go into the CO3 office during that type of an investigation. Inmate Kulvihill was either escorted back to 4BL cr to Segregaticn. I'm 9-iot guite sure. After inmate tivihill Randy left the CG3 office inmate Fanjoy Edward 4 00796 was brought to'the CQ3 office. At this time I informed .Mr:*Leod not to participate in rhe *pa cf investigation that was going on. !&en inmate Fanjoy Zward * 00796 enteredthe CO3 office Mr. Van't Hullenar either took off the in- mates glasses or had the inmate take off his own glasses so &ney muld not break. At this time I had to go-to the Elevator Lob@ on level four to get the meal carts off the elevator. Iwatched as $Wr. Van't iiullenar walked up and punched inmate Fanjoy.in the s:omaZ. hard enough to make the inmate go backwards a few steps. At this - lo- ” , tme Xr. Caraflello or5ered f.he mnate to star72 L.ac!i 3 y.e 5%: he was standing before being punched $J ?r. Van't Sl1er.a~. 11: about 10 minutes later kmate Fan-~oy Zward $0035 was escor:ti to ,Sagregation. In his testimony before this Board, the griever confirmed the substance of what he said in his second reocrt. i.e. his report of July 9, Exhibit 9, and expressed regret and contrition for having failed to report the incident in the first place and for having given a misleading account in his report of July 7, exhibit 7, quoted above. One result of the events described by the grievor and Xr . O'Connor was that a 032, Mr. Carrafiello, was suspended fcr five days; he resigned from the service in October. Cn the other hand, the penalty meted out to the grievor by reason cf his part in the incident of June 21, together with his ?a:t :n two incidents later, was his dismissal from the service. "!le 4 wide difference between the two penalties became an issue during argument by counsel before this Board. The so-called Fanjoy incident of June 21 falls Into two parts: first the failure of the grievor to supervise his subordinate, and in particular the failure to prevent an assault by Carrafiello on the inmate Mulvihill: seccndly, the griever's own assault on the inmate Fanjoy. - 11 - e _., It has beenproved' withoui conrradiorion r>ar p--r--;; .. -a--1-,-9--L, . assaulted Yulvihill .in. the presence of his team leader, d-Lp I.-. _..,-r jb - - d _- , ; ‘. and that the grievdr not only failed to report it but denied i: had happened: Whatever .the provocation, if any, ihe'assault 0:: . Mulvihillwas a wholly unwarranted and improper use~of fcrce. .: : .' ,' By-his' own admission, the 'griever assault'ed the~'inna:e Fanjoy. In Exhibit 8, ,d. .his report of July 9, his words were: "in sheer frustration or anger I, punched him in the stomach." This was-also an unwarranted and improper use of fcrce. ,. Both assaults Occurred "in' an attembt to es’t&lish responsibility for alleged assaults by one or more inmates on onenrmore other inmates: nevertheless, the Superintendent was undoubtedly right in describing the methods used by the officers as "unprofessional" and an improper technique for conducring investigations. It is clear from Standing-Order '2.2 that bullying procedures are not‘dnly unauthorized: theyare strictly prohibited. The grievor was also at fault on two other counts. 1: was his duty to report the confrontations of June 21 and to do so before the end of his' shift. 'We did not do so. Secondly, when he made a late rep.ort by request, his report'of July 7, Exhibit 7, he ,falsified the record. This is more ihan-ayparen; by comparing the text of Exhibit 7 with Exhibit 5. 3y aitSm?tiZ; ! - 12 - to conceal the facrs, he compounded his cfiences of J1:r.e Zl. and it was not until July 8 that he brcke down and Then confessed the truth in his second report, Sxhibir 9, of Jsi.:l:~ 9. Even then, his account of the Ca rrafiello assauit cn :?ul.~rh:ll differed from the version reported by O'Connor, who said rhar . Carrafiello "had both hands around inmate Mulvihill Bandy's throat and he banged the back of the inmates head agains: -he wall. At this time the inmate's face was getting q*uire red...- To sum up, this Board finds that Scperinrenden: Phillipson's conciusions were well-founded in respect of the charges arising out of the Mulvihill-Fanjoy incidents and Their aftermath. II THE STAATS INCIDEST, JULY 1. On July 9 there were three belated reports made concerning the assault of July 1 on an inmate named Staats. The &irst A. , Exhibit 19, was made at 1 p.m. on July 3 by Mr. Arno Hildebrandt, a CO2 with four and one-half years experience. He wrote it at the request of Assistant Su?erin- tendent King on returning from his "days off." It was as I follows: (I: i to the possibilirg of another (and unrelared) charge aga:r.sr Staats. The inference~can' be drawn that the grie.icr his ;r.;Z'i _ and sought. to solve a noise-making problem by using tactics of intimidation. The inmate'could have been questioned and even reprimanded without resorting to superior height and weighr to walk him into the WBli; The testimony given by Mr.' Hildebrandt and the qZlt..r=r before this Board was consistent with what they'said in Sxhibirs 20 and 9. . 1 As the result of inquiries and interviews with the grievor and others; the Superintendent concluded that the grievor had used force without justification against Staats, that h-e had resort~ed*to un.professional,techniques in-condusting an investigation and that he had failed to report his use of (. force. 'The finding of this-Board must Abe that all three of the Superintendent's conclu.%ions were correct. The .assault was llOi as serious as that of June 21, but there is no doubt whatever the grievorused his‘superior weight and strength tom "walk the inmate into a wall," that the questions-spur (with rhe.implied threats of another charge of misconduct) were unprofessional and improper and that his failure to report the incident was inexcusable. Once again it appears that the griever was i - 16 - act ~n3 as a bully rather t.han as a cusrodratl officer ii:-.~.:n the ,guidelines set out in Standing-Order,22. III THE JEROME INCIDENT, JULY 4 The circumstances of the incident on SUiy 4 were qu:-.e different from the others. 'Whether or not he knew ::?a-, an :n- vestigation into his conduct was under Way, the griever on this occasion did report without delay. The incident was witnessed by a COl, Mr. 3rian Xinrer- mute (who testified that he has since joined the Peel Regional Police Force). His initial report, Exhibit 10, was as follows: Cn July 4th 198i I was assigned to admitting 4 discharge for the 1500 to 2300 hours shift. At 2020 bars I was assist-r.5 Mr. &tar in segregation with the showering of inmates. At this t;me .Mr. Van't Hullenaar came in to segregation. Mr. Van't Wlenaar asked to see irmate Jerome. I opened cell # 12, that housing Jerome, and stocd back. Hr. Van't IW.lenaar asked inmate Jerome some questions in regards to amissing spoon. Inmate Jerome began answeriq ard explaining and alsobegan *iwavehis hands arc&. Atone point inmate Jerome pointed his finger almost against Mr. Van't Hulienaar's face. Mr. Van't Hullenaar plshed the irmate towards the cell wall. Inmate Jerome grabbed &Mr. Van't Hullenaar's arm. At this point Mr. Van't Hullenaar slapped inmate Je-orr.e. Inmate Jerome settled down at this and there were M other problm. Mr. Van't Hullenaar finished his conversation with irmate Jerome and the cell was relccked. His superiors were not enti:ely saiisfied w::h tne Xintermute report, and he made another, Exhibit 11, on .July 6. - 13 - !uhile on duty asp fcurth floor staff, on niTht.shifr', -he 1st cf July 1981, I was working with ,Mr. Can't tillenaar C5 and :r. Walker C31.. Afrer.the shift briefing and takeo,ier and '%fter -he afternoon shift had left the levels: 5ie ?sd occasicn to hear a noise from 48. j i ,,,, IX+=. Van't Hullenaar, Mr. Walker a& I.went to 42. 'Xrh-. Walker took the grille and we entered 4BR. &Xr-. Van't Hullenaar indicated to open the cell'belonging to i/m Staats Mitchell % 01160. Be was led out and to the team leader's cffice. There Wr..Van't Hullenaar questioned him reqrding general behavior and involvement in any misconducts. The inmatestocd &the certre of the room with %. Walker Psitioned against the filing cabinet at one side.of the room, I by the pillar at' the opposite,end of theercom; a& :&."C%n't tillenaar behind his desk, initially. . . . .,~ : For' whatever reason, at scme' point 'in t-he interview !+ri 'j&q ' : Bulienaar came across the room and backed i/m.Staats into <?e wall by the bulletin board: Wr-. Van't BullenaaYs back'was to me!. I do-not recall a choke hold being applied. I -. Mr. King ask.ed.for more specific information aboui -; :: .- physical contact, ~, and the result was asecond Hildebrandt report, Exhibit 20 dated at "1~827" of July 9, as follcws: . : 'This .is to furthsr describe the~manner of physical force used by !?r-. Van? Bullenaar, in backing inmate Staats, Nitchell + 'Jll80 against the wall in the team leaders'offioe. 'Prom-my..angle'of~.viSion.' IGen~to recall-that m. Van ' t Eullenaar shoved the inmate once with. one hand and the inmate's chest *Aen grabbed him by the left shoulder and pushed him up qainst <ye tiletin board. I recall that the inmate didn't trip or fall and that his back hit the wall. I also remember the inmate seemingly 1eani.q sideways from the waist toward the blackboard. 4tr. Van't Bullenaar released the inmate and sat beside him on 5e cupboard, further reprimanding him. Shortly thereafTer (aboct 2 to 3 minutes) inmate Staats .%tchell.was returned to hiscell where Nr. Walker and ti. Van't Hullenaar locked him in, as I atiended the grille. - 14 - i for information. dpoarenrly he had decided by ;?.ls o3:r.l :z be more forthcoming, and in his report, Exh2bi.z 9, dayed a: "1800" on July 9, he said: Q-I July l/81, I was assigned as CO3 for Level 4 for :he 23cS- 0700 shift. &u-m my tour of approximately 2305, I was entering 48 when I heard a loud wing and shoutinq eminating from 223. As I +~~rned the corner and lccked in I saw I/N Staats Y. standinc ar ?:s cell door. I entered the day rocm and noticed that all Lye ether I/MS were in bed. So I openned I/M staats' cell and told him cc cme out and took him to my office. Cm the way in I/x Staars iias going to walk pst the "A" pod staff station dcor so I grabbed h's shoulder and guided him into the doorway. Ore inside I questioned him as to why he was banging and shouting. He just shrugged his shoulders. I told &him that he was in enough troubie with Mr. Baldwin concerning his being "blcwn" in the shower by another I/M so I muld not charge him. tip denied being involved in any sexual acts and that I was "cn scmething" E I thought I could prove it. At this point I stocd up arkd using my weight, walked !%!I in:3 the bulliten board. I do not recall grdcbrng the I/Y in any iJay and I do not believe that this occurred. 'Ihe I/M was not choked or strangled or pmched. I told the I/M that what he said now did not matter as he would have ample time to discuss it with Mr. Baldwin when he cm- pleted the investigation. I then sat on the ledge beside the I/M ard talked further tith him, about his not banging or shouting. %ortly thereafter I/M Staats was returned to his cell ard no further noise eminated from the area. It will have been noted that the grievor's report d;s- closed more information than what had been given by Hildebracdz, which is to his credit. In particular, he ad.mi:ted hav-n.3 -se2 a threat (even if only by implication) when he referred tu::e - 17 - llows: ITI is as .fo . . 01 July 4th, 1981 I was assignedtd Admitting and Sischarge'for -.ke I.500 to 2300 hours shift. At 2020' hours'.Iwa5- assisting :C. Q.itar in,the segregation unit with the showering of inmates. ->&LX Lniis time Mr. Van't Hullenaar came into the segregation area~ard tack a walk throqh the. area checking the cells. ,Mr. Van't Nlenaar retUrnal to the si-hw+ roomwhere I was standing and asked if sc.me- on& could let him into Cl2 cell as inmate (Jercme) had in&cared to.LMr.Vah't Fiullenaar that he-wished to speak with .Xr. Van't &l.lenaar. I had the segregation keys with'me at that time so I tint overt0 cell Y 12 and opened die door. i then stood away from the cell. Mr. Van't Hullenaar asked innate (Jerome) some gues~i-cns in regards to a missing-spcon: hhen (&rcme ). answered he keqan -a wave his arms around. I believe at t,his point I%. Van't Fiullenaar cautioned inmate (Jercme) about waving his arms aro-und. (Jeromei continued to explain about the spoon and began waving ris a3.s around; At one.@nt (Jerome)(raisedtLs hard almost to !4r. Van't FhLlenaar's face, pointing his finger at Hr. Van't Wullenaaz. !%. Van't I-iullenaar ~pushed inmate'.(Jercme) towards the ceil wall. :$r. Van't Hullenaar's hard was below the neck. (Jerome) grabbed Sk. Van't Hullenaar's arm and Mr. Van't Rellenaar slapped inmate (Jerome1 cm the face. (Jerome) broke his hold and settled down. $lr. Van't hullenaar finished his conversation with inmate (Jerome) withcut further incident and the cell was relccked. .- _. The grievor's.version at' the time was embodied in ,tr.e .I. report.he made to the superintendent-at 8.45 p.m. on July 4, .., Exhibit 5. In it, he said: r .., .Cn the above date, I was incharge~ofL~vei~4 for thelSOO- 2300 hrs shift. - At approximately 2030 hrs I went down to the segregation area to see how the exercise was progressing. While in the'vicinity of 9 cell I tzeard.the inhabitant cf % i2 cell calling. I opened the "porthole:: and I/X Jerome seeing me, asked if we could talk. 'INC. Wintermute allowed me*to enter and stood in .view at all times,. - !.a- I/N Jercme was very agitated about be~r.4 :n regregar:cr. .z::.z-.;:; and was flailtig tis arms abcu: m fron- of my face. I :'n'lce ~iEL-7~ him to keep his hands down but to no avail. 3e next manent his h&s were waving +" away frcm ?I nose so I placed my left hard against his ches t and QJ&-M him against the back wall of the cell. F!egrabbedmewithkxhhandscnay1e~~ forearm 50 I told him to let go ard at the same time wrerched my hard free. His arms were still up in the vicinity of my face so I c,;.en slapped tba right u~pe' side of his head with my ieft hand. At this pint I/M Jerome, 8. dropped his hands ard aQolzg1sed. %o further force was used or required. No misconducts xere larr. since I feel his initial act was one of sheer frustration and his qrabbing of my arm was due to his reacticn of fear. 5.a m&XC dept. ~was notifyed and attended the scene. Two days later, on July 6, the griever gave a father report by request of his superiors, also a part of Exhibit 5. It is as follows: Wsuant to our discussion this date I now suQQly the follow- ing information. iNy motive for being in the segregation area on the n&T in question was to ascertain hen I could have my exercise officer ret'd as I was in need of his services. I tried to discover t:h~s information by telephone tut the line was hLSy. I then became involved in some other duties arzi five minutes later, I left the level with a Me of papervurk for ihe Front Cffice. Cn my return from the office I decided to stop in segre- gation to assess the situation myself. It was at t..i.s time t?di i/Y Jerome 9. called me to his cell door and asked to see me. In respect of this incident, the Superintendent's conclusion, as stated at page 3 of his letter to the griever of July 29, Exhibit 2, was the following': Finally, with respect to allegation 3(a) faccrs Iead~ng ,I to this allegation are that on >uly Ith, 1%;. *A-Ale ysu 5iere in conversation with Inmate a. Jerome in the doorday cf Seg;~a:zn Uiit cell numbed 12 he became upset and threw his arms uo in z.".e air near your face. You warned h&m to.stop,.but he prsiStti+.~ Gs a result you pushed him back to the far wall of his cell and oirned him there with your left hand on his upper chest. ,At fhis point Inmate Jerome g-&bbed your left forearm with both hands, a reaction you stated was caused by fear. You wrenched your arm free and slapped the inmate on the right side of his heA. There were other options you could have employed such as stepping back frcn " the inmate, or leaving the area until he had cooled do,&n. .i man suffers no .loss of face by leaving or stepping back from a lS-year- old boy. He was not actively assaultirg anyone, nor in ycur statement ,or,hearing evidence did you express concern ahcut an imminent attack and he was not trying to escape. k was aEar- ently only aggravated by the dialogue taking place. Having regard to his own reports, and also in light of the testimony he.gave this Board, it is clear that the grievor's m,isconduct, .as. stated by the Superintendent,, has been proved. Once again the grievor had used bullying tactics-and .~ an assault..t.o. cope with the.behaviour of a,young inmate. : As . . . the Superintendent observed, there were other op%ions the t grievor could have used,. particularly since there was no real danger of an imminent attack by the inmate. Reference should.now be made to certain deveiooments before and after the incidents descri.bed above. The Superintendent hastestified that at some time in Yay, having heard rumours that the grievor was being "r.oc -20 - free wirh his hands," he13 a meerlng rn C;s office a: ~5::: he asked appropriate questions. According 10 ?.lz, 15e ;r:n.::r vehemently denied using improper force in dealing with rnnates. The Superintendent reminded him of his'obligations and Let rce matter drop, having no "hard evidence"'that improper force ., had actually been used. However, from that point the Sucer- intendent and his assistants were on the alert. An inquiry was set in motion by complaints resulting from tne incident of June 21 --- followed soon by two other incidents. As already mentioned, due to inquiries undertaken in the early part of July the grievor himself reported the incidents of June 21, and July 1: other statements were obtained from witnesses.. The ?eport oi,July 4 was made on his own initiative. On July 9, the Superintendent relieved the grievor of his duties as team leader on the fourth level and limited him to office work, directing that he should have f '6 no contact with inmates. The office function is one not filled except when there is a spare CO3 available to do paper work. On or about July 9, the grievor, realizing chat he was under investigation, and that evidence was being g-ven the Superintendent, broke down in the latter's office, exoress- ing fear and anxiety because of his misconduct and rn oartrc- ular because he had failed to report correctly or failed to I ! z ,: - 21 - report at all on the incidents of June 21 an5 ylul:/ 1. The contrition now disp:layed by the grievo.r und;,cu&e&i.: 5a:es from the first week in July, when he had to face. tne prsba- bility that misconduct would be proved by witnesses and rha: he would certa,inly be disciplined. . ~- -. After some delay in ~the in~vestigation due.to The absen.ce of certain officers on vacation it was on,,jU;y 15 .I that the Superintendent wrote the grievor,reguiring him to attend a meeting in his office on July 2l.for rhe purpose of giving him an opportunity to answer alleg.atiqns against him in respect of the incidents of June 21, July 1 and .July 4, all ,' three being set outs with some particularity in the letter. To his credit, the grievor 1 when he aft,ended the.,meeting of July il made no .effort to deny.the. charges against him-. fe ,C,OUid only plead that he had been wprking under great stress for various reasons (which will be mentioned later) said he had already suffered severely from. pangs of conscience and suggested disci- pline, ,but not the extreme penalty. In his, tqstimony, Superintendent Phillipson explained _ .., the system for training correctional .officers. During the probationary year. the grievor had been required to take the . orientation course at the Centre, a two-week course and later a one-week course at Brampion. There are also supposed to be - 22 - regular lectures and seminars a5 the Cenrre, but <Ye e,ridehcc .-,:i*.--- -L--z= -d-at kese have not been gi-/en .:'i ‘5e &mil:cr.-::er.c~rtt 3Eznz~z Ij57.zre since the early part of 1930. Part of the instr,Jc:icn ;:.'ieP is in the use of moderate force when necessary, including the so-called "come-along" exercise, which Nr.~ Phillipson denon- strated before this Board. He himself has had more -.han seven years as Superintendent as well as eighi previous years with the Ministry aft er considerable experience iiith the Metropolitan Toronto Police. Ml-. Phillipson said all officers receive ccpies of Standing Orders, Staff Standards and training documents and are required to be familiar with the contents. Yoreover, the grievor, like others officers, had signed an acknowledgement that he had "read and understood" a warning, Exhibit 12, against the rmproper use of force issued by the Deputy Minister cn July 25, B 1968, and an even str onger written warning, Exhibit 13, given by Superintendent Phillipson "to all institution employees" as recently as May 5, 1981 --- and acknowledged by the grievor on May 22, 1981, less than one month before the incident of June 21. Further, the "Correctional Officer's Cecalogue," part of Standing Order No. 1 (in Exhibit 3) contains ten commandments. including the following: : ! -i - 2: - .?;ever use unnecessam force to gain COn+rd of a -situation.. To'proceed with force beycnd‘(33nrro1, _.._ r&2 treatment becomes brutal. An officer exercistig brutality is Liable for legal sanction. '- . : .i There are probably those who would.regard the-decalcg-e asthe covnsel~ -of perfect.ion, po.inting out-that bandits, rapists and murderers cannot.be treated like gentlemen. Xevh-t:7e?ess, all employees of the ~tiinistry.at the Hamiltoh-Wentuorth .3e'tenr;on Centre are bound by Sta~nding.Orders, which the Sucerintendenr had a duty :to enforce.. The rules do'not,forbid the use of necessarvforce; they prohibit.its use beyond the.bcunds cf .' necessity.. . 't.. -,On .his part, the grievor testified that in the-months of. WY I 'June .and .July he: tias living and working under great stress,. due in part 'to family and. financial problems., This wasconfirmed to:some extent by .the Superintendent, who said Ei~ he had told the grievor, probably in May or June: "Karl, you're coming apart." .- : There was also ev'idence that the off'icers were ijorking in .a specially tense atm0spher.e throughout.the early summer cf 1981, most particularly on the fourth level, where "penitent- iary.types" are accomodated. Management had been wa:ned by police of a scheme to smuggle a hand-gun'into the inst;rutioc . I - 24 - (courtesy of a* officer whose identity seems unkr.o,~n, :ne ;.:r. being destined of course for an innace on the four:.*. le.,el. :::P - warning was made known to orflcers and an intensive search czn- ducted throughout the whole building. The gun (if it ever existed) has never been found, but it can easily be understccd that most officers would be apprehensive of an escape attempt .or hostage-taking and also disturbed by the very thought :?.a: a colleague might be a party to the alleged plot. It 1s 333^- ceivable that the story had been invented somewhere in The underworld and leaked to the police in an ingenious attempt to discredit or disturb the staff at the Centre. Xevertheless, the "tip, 'I if such it was, seems to have been taken very seriously, and with good reason. For several weeks thereafter the grievor was a team leader'on the fourth level, where dwelt three or four inmates suspected of being the intended recL3ier.t of the hand-gun. Such is the testimony of ?Ir. John 3oychuk. another 033. In argument on behalf of the employer, Mr. Ilenedict emphasized the testimony of the Superintendent about the traln;n; and indoctrination of officers and the admissions of the gr:ever in respect of his misconduct on three different occas1cns. These came so close together that they were treated as one for purposes of assessing the appropriate penalry. IQ aiso ZreW - 25- :” attention to the fol ,- ,lowing cases: 9 / . If. BottreZZ; as yet unreported;‘ a.dec~ision of the B.C. Court.of:Appeal .(on June> 9;1981) and the cases cited therein. This. was an .appeal'against a. '. three-month sentence, reduced by the Court to 45 days. In that case, however, and in.'several .of then cases cited, the offenders-were policemen convicted of~.assault causing actual bodily harm, such as the fracture of a cheek-tone, the destruction of a tooth and even the..destruction of an eye. Such brutality israther remote from the facts before this Board in the grievor's case; ~. 4 T'h'omnson and Ministr? o:f kcrreational SgivCces 128/78, a decision of this Board authored(by Professor Swan, 'fin which two grievances were upheld and one . dismissed. Travers 79/79, where the grievance w'is upheld and reinstatement in a suitable position ordered. Mr. Benedict argued that as a team leader the grievor had a special responsibility to set a good . .% example to subordinates as well as inmates. He also cited the following decisions of this Board: .qorcrz:i 4/75; Koch 2/75; Harris 7/75; Oidendorp 135/?7; JcT7ns.or: 7/78: a 99/79; :li.ron 254/79; wher.e criteria fo'r re- instatement were suggested,~ but the grievance failed. In several of the above cases the penalty of dimnissal was reduced by this Board to suspecs;cn. :4r . :-er.eiic: ~'12~ nitted, however, that in this case i: wculi ne Vrong for t?.? Soard to exercise its power under Section 13 of =he Croi;t. Employees Collective Bargaining Act to modify the penalry because.it would amount to condcnation of a serious offence and encourage officers to think they could break the rules with impunity. Mr. Benedict referred to the criteria explained in Nixon, 4u,n&a, for reinstaring an employee in a differen: capacity. For the grievor, Nr. Goudge sucmiited tlhere was an onus on the employer to prove the facts and show they were sufficient to justify the extreme penalty of dismissal. Ue said it is not possible to enforce the same standards in prison as else?where, citing Professor Swan at page 25 of ThoaFson, 4L1+1, and Professcr Swinton's remarks at page 17 of the first decision in Travers 4upaa. Nr . Goudge said the griever's record was good, referring to several performance appraisals, Exhibi:s 21. 22 and 23, and also the testimony of Assistant Superintendent Johnson that he was "doing well" apart from the three incidents in June and July. Also suggested by ?Ir. Goudge was that excessrve fcrca ‘4 i ’ ” - 27 - .had nor. been used against Staats and that the griever ;erze:.:+< Zerome's persistent hand-waving as a "threatened assaul:.:' .?P further said that two previous and unrelated, offec;es'.dere . minor and very stale. Such ancient history, he said, was nor - relevant, citing Laskin in Toronto Vetal Spinning Ltd. 1 L.X.C. .-. 324 at page 328, and more recent opinions by the late judge Cross in DeHavilland Aircraft, 13 L.A.C. 1 and Prof. Arthurs in Douglas Aircraft 18 L.A'.C. -22: L Mr. Goudge said that if the case fe~ll within Inbseczlon f4).of Section 19 in the Crown Employees Collective Bargaining Act, the Board could reinstate. the grievor "in a substantially similar position here'or in any other Ministry." He also argued that the dismissal was excessive by.the. Superintendent's standards. because officer Carrafiello had received onlv ,a five- day suspension for his misconduct on June 21. ( _: . . Inreply,, Mr. Benedict c,hallenged' th,e.,argument that there is a difference between the s,tand.ard,s ins prisons and other facilities. Three offences under the Regulations and Standing Orders had been proved. As for the Staats case, I.; _ _' . :. was not clear that Staats had misbehaved fin any way,and there : was no need whatever to use force against him. Nothing, he said, could justify t.he use of excessive and unnecessary force. , I t. I ( - 23- + ., Fortunately, this is not a case in which there is a problem of credibility. That problem arose in' 'i2OrwS9,n, sar;rc and in Trcvers, su?."c, but here there is no significant conflict of testimony. Indeed, the testimon; of the grievor himself is remarkably consistent with that .-. of other witnesses. Findings in respect of the facts have been stated earlier in this decision. There is no doubt they justif> severe discipline. The question remaining to be decided is whether the penalty imposed was appropriate or excessi.le. Iyr. Van't Hullenaar exercised his right to grieve under paragraph (c) in subsection (2) of section 18 in ?he i?roun EmpZoyees CoZlective bargaining Act, R.S.O. 1990, Chapter 108. His grievance was referred to arbitration .- under section 19, in which subsection (3), provides that: Where the Grietrance >ettZement 30ard deter- ,mines that a disciplitiary ?enaZty 3.n dis.G.sszT of an empzoyee is excessive, -It nay srbstizs*e such other penalty for the discipline or dis- missal as it considers just and reasonabie <n alt the circumstcnces. It is further provided by subsection (4) that where the Board finds that an employee who works in a "facility" has applied force to a resident in, the "facili:y", except "the minimum force necessary for self-defence or the defence of another person or necessary to restrain the resident", then the Board "shall not provide for the employment of the employee in a position that involves :. 1 i i,, “, !i - 29 -. . 'direct responsibility for or that provides an opportunit:/ for contact with residents in a facility, but the Board may provide for the employment of the employee in another substantially equivalent position". Then term "facility" as used in subsection (4) above is defined by subsection (5) to include "a correctional institution under the Ministry of Correctional Services Act." 6. -Thus it is clear, having regard to the facts founE in this case, that if ~the employee is to be reinstated, it must not be in any position in a correctional institution which would‘involve direct responsibility for or contact with residents, i.e. inmates,'.in the institution. The limitations described above are clearly under- stood, but they do not relieve usof our duty to decide whether dismissal was appropriate or.excessive in all the circumstances. In arriving at a conclusion, it is recognized that certain factors coutit heavily against the grievor, while others count in his favour. It must be held against the grievor that notwith- standing a clear warning from the Superintendent, within a few weeks thereafter he committed several needlessly violent acts, tolerated the improper use of force by a subordinate and compounded the offences of June 21 and July 1 by failing '. to report them and then misrepresenting the facts when asked to rebort. e - 30 - It also counts against the grievor that he had both experience and knowledge of the requirements of his position, having won promotion to the rank of C03, where he had supervisory responsibilities. Moreover, he had been disciplined in 1977 (while a probationer) for failing , to report the use of force by another Correctional Officer. On the other hand, the grievor improved his per- formance after 1977 to the point where the following paragraphs appear in an appraisal, Exhibit 23, made by two Assistant Superintendents on March 7, 1980: Since A+. Van 't HuZZenaar's Zast a;.vrcisal on Xcrch 23rd, 1979 he has attcized a near perfect attendance and punctuaZit2 record, being absent 0nZy l+ days. There are p.c late reports on fiZe for the same period. During the short time since Mr. Van ‘t HuLZenaar’s promotion to tke position of Team Leader, Correctional Officer 3, his adjustment has been mosz positcue. i!E? :S a willina and reliabie officer wkc is cooperatEve with his euveriors, and quite abLe to deaL witk tke m&u difficuzt sit- uations which occur when En c;?zrze of a Unit. Basicalty, Mr. Van’t HuLlena’ar is hard- working and conscientious. Ee is committe2 to the goals of the Mtnistry and sericuslz- attempts to assume a2 Z respo*sibiZities o-- h<s position. In summary, we are most plecsed sitk Mr. Van’t HuLLenaar’s performcnce to daze and feel that he wiZL make a VcLucbZe contribution to the suvervision tez.7, CX? with more et-verience sirouid ,-cssess z;la abiZity for adiCtonaZ respcnsi><Z<z:d. Consistent with the appraisal quoted above, this Board's estimate of the griever (who was a witness fcr - 31 - several hours, most of one day) is that he was a zeaious, perhaps over-zealous employee, and that he has a capacity for useful.service, not as a Correctional Officer but in some other position. In ou'r.view'; he had at the age of 26 the energy but not the maturity to begin-serving as a .co3. ,~~That he tried hard to measure up is.shown by the appraisal of Narch,.1980. The' grievor.has spoken' of financial:'and farniiil troubles, but stated in December;+ 1981, that these have been resolved. Probably more significant was the tension generated among staff at the Centre by the story of a hand- I gun being smuggled within the,walls. It is apparent that at some point in June-or.earlier the grievor's powers of '. self-control failed him,,with painful results. His.pangs . of conscience were,such that in July he.broke ,down and became a co-operative witness against himself.. We think it proper to take into account .his anxiety, penitence and apparently genuine contrition before and after his dismissal. It must also be said that the application of discipline.has not been consistent in this case. IYr . Van't Hullenaar's three,offences were treated as one. offence because they occurred in rapid succession. On the evidence before us, Mr. Carrafiello, on one occasion at least, was guilty of more brutality than.the grievor, and received a suspension of only five days. We have had the advantage of seeing Exhibit 24, a summary:of. the Carrafiello disciplinary record prepared by Assistant Superintendent I !’ - 32- '* ,_ ,'. ! Johnson. It lists six offences between January 28, 1573, and May 25, 1981, hardly reasons for lenienc:I. The differ- ence between his five-day penalty and that of the griever is too wide to be overlooked. Significantly, there is no evidence of any injury suffered by any inmate as the result bf the assaults com- mitted by the grievor. The force used was improper, but not so excessive as to cause "actual bodily harm". Thus cze case is quite different from the police cases which have been cited to us. The grievor took an electrical course at Nohawk College after completing Grade 12. Thereafter he served for three years in the Westinghouse Plant as an Assemblyman on high-voltage products. Thus he has experience and qualifications in that area and should perhaps be considered for work in maintenance or where some knowledge of eiectricity is required. His energy and ability are such that he can certainly prove to be a useful public servant. After considering what has been found in his favour as well as what has been found against him, our conclusion is that the penalty of dismissal was excessive and must be modified. Our decision is that the grievor should be again employed in a suitable position with the Ministry of Correctional Services or another Ministr;., provided that the rate of pay for such position need not be the equivalent of the grievor's salary in 1931, but shall not be more than $1,000 per annum less than the -. minimum rate of a CO3. In adding that proviso, we take notice of the fact mentioned in the second decision in Travers, suprc, at page 13, that a Correctional Off,icer's rate "reflects a premium paid for dangerous work". Having regard to the nature of the offences proved, we are not prepared to order compensation in respect of the period between July 29, 1981, and Xarch 29, 1982, so that the grievor must accept the equivalent of an eight-month suspension.' Further, of course, he must not be employed in a "facility" (as defined by The CPG-;-. zmpzoyees Collec' ive aar_oainin~ Act) where contact with residents or inmates would be involved. It isconsidered. that a period of two months is 'more than adequate to f.ind a suitable position in which the grievor can be re-employed., We retain juris- GR diction in the event of failure and would be prehared, on the application of either party, to hear representa- tions in respect of the options available. This was the course followed in Travers, suprc, where the 9oard rendered a second and binding decision. It is hoped that it will not be necessary in this case. c I ? - 34 - - .a ,, Ke wish to express our thanks to :4r. Benedict an? Mr. Goudge for their careful preparation ar.d -,reser.:a- tion of this case. DATED at Toronto this 20th day of January, 1982. ‘.I, ,_ E. 3. JoLkiffe, Q.C. Vice Chairza,? D. B. Sliddleton Member /lb