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HomeMy WebLinkAbout1982-0138.Codognotto.82- -1811: THE lYA?TER OF AN ARBITA\TION Under m=T CROl<:I EllTLOYZES COLLECTIVE BAXAINING ACT _..u sefore ?:-:E GRIEVANCE SETTLEMENT BCi.XD Between.: Before: For the. Griexr: For t;he Emplover: neari?.gs : OPSEU (Rino Codognckto) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer 2. W. Samuels Vice Chairman E. McIntyre Xember E: 3. Orsini Member A. Ryder, Q.C. Counsel Cameron, Brewin & Scott Barristers & Solicitors P. Van Iiorne Staff Relations Officer Personnel Branch Ministry of Correctional Services Xay 31, 1982 ktober 1, 1982 -2- The grievor is a Correctional Officer 2 at the Hamil'ton- Wentworth Detention Centre, and has been in the service of the Employer since 1978. He,grieves a one-day suspension given to him on January 27, 1982 (Exhibit 9) for failing to properly supervise inmates in his care and control on or about December 20, 1981. On December 20, Mr. Codognotto was assigned as the Escor: Officer for exercise. At around 9:00 AM, ,he went to the medical pod, ZB, to get the inmates there for exercise. The problems began when he conuaenced this operation. The letter of suspension sets out a series of in&dents, which taken together constitute the basis for the allegation that the grievor failed to take proper action in supervising the inmates. These incidents are: --entering the 2B dayroom to get the inmates for exercise, which precluded the grievor from controlling the inmates as they left the day- room (this permitted the inmates to leave the area and commence down the ramp to the exercise yard unescorted) --failing to ensure that there were two escorting officers to and from the exercise yard --miscounting the inmates on the way back to the 2~ pod, and thereby leaving an inmate alone in a hallway. 0 Over two days of hearings, we heard evidence concerning the events on December 20, and the policies and practices of the I institution concerning the supervision of inmates. The facts I appear to be as follows: - 3 - 7 I. The Hamilton-Wentworth Derention Centsa is a maximum security institution, holding remand and sentenced prisoners. The average population inside Is 300 male and 25 female inmares. 2. The Correctional Officers are responsicle for the safe ant secure custody of the inmates. That is, they arr to ensure that the iLlmates a..=5 no danger to anycne else, and that an inmate is safe from harm from other inmates. The officer receives training upon joining the institution, and during the course of his employment. The Centre is under the authority of the ?linistry of Correctional Services, and the Ministry issues policy guidelines in Mancais of Standards and Procedures. Each institccion then issues Standing Orders to govern its own affairs. The Hamilton-Wentworsh Detention Centre has a Standi. 175 Order concerning exercise (Exhibit 7). 3. The Standing Order concerning exercise provides that exercise is an integral part of rhe correctional process, and may assist i:. reducing bcredom and tension. There is ?.o reference to martatory exercise, but rarL:er ?rovisio:. is rr.ade for rule5 concerzing the care and custody of inmates "entitled." to exercise. There are ten rules set .c'~t in the Order, and none of them bears directly CT. the i.?cider.zi invc.lved in LL:- --^^ -4- 4. There is a Daily Zxercise Sheet which is -sed in the record-keeping process at the institazion (Exhibit 3). At the bottom of the front side of this sheet, it provides: Control Officer (3alcony) - Draw Radio. Responsible for count, movement, ramg clearances, door control, and check cf vard before and after and between periods. Esccrt Officer (Alarm Button) - Drz; radiz. Respon- sible for security and control of inmates. Ensure all inmates leave yard and return to pod - follow line down ramp and follc;- line up ramp. Pod Officer - Responsible for control of inmates. Precede line down ra..p, precede line up ramp. Position In yard as required. Do not allow undue congregating tspe- cially when around entrance door when preparing to leave yard. Check count with Control Officer. 5. It is clear that, at the time in question, the exer:ise procedure for 2B was different from other pods. 2B holds medical cases and inmates needins special protection. Whereas all ocher pods were supervised by two Pod Officers, 2B i-as .thsught to need only one Pod Officer. This wc~uld mean that the Pod Officer often could not acccmpany the inmates to exercise, because some inmates ;culd bi left in the pod and needed supervision by the PoC Officer. In srder to deal with the problem created by the presence of only one Pod Cfficer in 23, i: appears ~-OX the testimony that sometimes zhe 23 ?od Officer L_ woult ask the Main Corridor Control ,Dffic:r (whc is - 5 - stationed just outsidethe pod) tc watch over 29 as well as carrying out his main corridor function: sometimes the~Escort Officer wou2i arrange for a second escort from some other part of the insti- tution (he did this by contacting the officers in charge of the institution); and, nctinfrequently, the Escort Officer would take the inmates alone to and from the exercise yard. Khen this latter course of action was taken, it is clear that the Correctional Officers knew that this was not the best procedure, but it was done. 6. From the descriptions given to us at the hearing, it appears that the 29 pod is lai? out as follows: - 6 - The barred entry tc the 23 dayrsom is opened by a key in the possession cf the 23 Pod Officer. The dcor to the ramp is .cpened by a key in the possession of the Main Ccrridor Control Officer. 7. On December 20, the grie'.cr was the Zscort Officer. 3i.s time of arrival at any pod would not be arranged in advance. There are nt routines in such an insti- tution, because the irunatss are not to know where they'll be at any particular time. He went to 2B at aro:und 9:00 AM. It appears that he did not have any conversation wizh the Pod Officer, Mr. 3. De Jonge, concerning the escort of the inmates, and whether Mr. De Jonge would assist, or whether some ether arrangements -Gould :-.ave to be made. Instead, he was let into the dayrooms by Mr. De Jonge, and the grievor proceeded to reuse the inmates into action for exercise. 0Ely, Mr. De Jonge did not menticn this entry by the griever into the dayrooms in his testimony, nor did eithar officer mention it in his Occurrence P.eport iExhibits 2 and 8). However, Xr. Ccdognotto was very definite about this in his cross-examination and it is co-:ered in the letter of suspension. Fourteen irLr.ates Prcceeded into the area near the staff sta:icn, t?en out to the main corriior . They were cot.-.ted 5; ?lr. De Jonge and entered in his log (Exhibit 1). Mr. Bruce Wilson - 7 - was the Main Corridor Control Officer that morning. He aiso counted the prisoners and entered "14" in his log (Exhibit 4). He thought that he was asked to open the door to the ramp by Mr. Codognotto. He knew there would be only one officer on escort. From the evidence of the three people involved, I have concluded that Mr. Wilson opened the ramp door without being requested to do SO. b“. Codognotto saw the prisoners going down the ramp through a window in 2B which looks over the ramp. The grievor thought Mr. De Jonge was preceding them. But we know this was not so, and we can't place Mr. De Jonge in any particular location at that moment. He must, have been somewhere just outside the bars near his 2B staff station. Mr. Codognotto followed after the inmates, and was behind them down the ramp. They then passed through the two doors at the bottom of the ramp which are controlled electronically by Central Control, and on out to the exercise yard. 8. NOW Mr. Codognotto reaiized that Mr. De Jonge had not been at the head of the line. The grievor took up his position in the yard and told the Balcony Officer, Mr. Prince-Cox that he needed a second officer to escort the prisoners back to 29. 3ut the inmates were already ready to so back and 41r. Codoqnotto decided to escort them alcne. The evidence is not clear on this point, but from -8 - .Mr. Codognotto's Occurrence Report (Exhibit 8) and his examination-in-chief and cross-examination, I have concluded that Mr. Prince-Cox did not refuse to call for another escort. Rather, because the inmates were clustered around him and asking to be returned to 2B, Mr. Codognotto decided on his own to escort them back to the pod by himself. Mr. Prince-Cox was on the balcony and had no opportunity to countermand this decision by the grievor. The Balcony Officer ~was asked for another escort, but before he could respond Mr. Codognotto was on his way back to 2B with the inmates. 9. On the way back to 2B, the men would pass through an electronically-controlled door from the yard into a hallway with a coat&rack. Here, Mr. Codognotto had the inmates hang up their coats and others laying on the floor. After a brief time, he instructed the inmates to proceed through the next electronically- controlled door to the ramp. At the foot of the raw, before reaching this door, they would cross another hallway giving access to an elevator, laundry room, and other places, all behind locked doors. As the inmates proceeded past the grievor at the door, he counted them. He was not yet through his count when Mr. J. Ransom, the Shift Supervisor at the time, and several others passed along this crossing hallway. - 9 - Mr. Codognotto spoke briefly to these Zen. Mr. Ransom did not know that there was no escort at the head of the line. This nay ha-.-a distracted the grievor. He thought he counted ai- ': 14 inmates, and followed them up the ramp. 3unedi:tely 37. arrival at 2B, Mr. De Jonge not:ted ont missing. The grievor now saw that a Mr. Iredale was net there. This inmate is a deaf mute. Beizre tha grie-.-or could go looking for Iredale (iz appears thar he radioed Mr. Prince-Cox on the balcony and ccnfirmed that Iredale was not in the yard), Mr. Ranscn called on the phone to 2B to speak wit:: the griever. Mr. Ransom had found Iredale alrne Still hanging up, coats. In the m,eantime, .!lr. De Jonge had handed his keys to Mr. Wilson at the vain Corridor Control, and had proceeded down the ramp to re-sieve Iredale. And so the matter ended. LO. When he received the Occurrence Reports about the whole exercise situation at 25 cn this morning, Superintendent Phillipson concluded t::at Mr. Codognotto meritted a one-day s_spenslsn, ant ?lr. Wilson should get a corrective Interview. " . Wilson testified that he has never het~r5 frc'z manacement concerning his role in the sit-::tion. xr . F.rnsom testified that he did give a c:rrecti-:e interview to Mr. Codognotto, but dealt OT.ly WiZlh lOSiX: - 10 - Mr . Iredale. He said that he did not touch on the matter of escorting alone. 11. At our hearing we touched on several earlier dis- ciplinary matters involving the grievor. In April 1981, the Superintendent and his Deputy met with the grievor to tell him that his performance was not acceptable. This was reduced into writing and Fiaced in Mr. Codognotto's file. In June 1981, Mr. Codognotto received a three-day suspension for insubordination, but this was later reduced to a reprimand. In November 1981, the grievor received an Employee Annual Appraisal which suggested that he "could improve his attitude and interaction with Senior Staff" and noted "an overall decline in .~r. Codognotto's performance, interest and dedication to Corrections" (Exhibit 10). These are all the facts on which our decision must be made as to whether or not there was just cause for the one-day suspension. Azd the first issue is whether the grievor failed to properly supervise the inmates in the situation. The letter of suspension indicated situation which cons tituted the grievor's fa i vise the inmates under his care and control: - entry into the 2B dayroom three elements in t:he lure to properly super- - faiiing zo ensure there were two escorting officers - 11 - - miscounting the inmates and thereby leaving an inmate alone in a hallway. In my view, the entry into the dayrooms to yet the irmates would not have been a problem had Mr. Wilson not opened the ramp door without instruction. The inmates would have gathered in the 29 entry-way under the supervision of Mr. De Jonye and perhaps KY- _-. Wilson. While normally the Pod Officer would organize the i.nmates in the pod to go out for exercise, and would order them out of the dayrooms, on occasion it may be necessary for the Escort Officer to enter the dayrooms to speak with the inmates. There is only one Pod Officer in 2B, and he must stay at the barred door with his keys. -. Turning to the second element of the grievor's conduct, it does appear that, while the need for two escorts to the exercise yard was not always fulfilled, the Correcticnal Officers knew well that this was the proper way to escort to exercise. The management witnesses were clear on this point. The employees who testified knew it was proper procedure to have two escorts. Even Mr. Codognotto was clear in his testimony that, when he reached the yard and realized Mr. De Jonge was not there, he knew something was wrong. ind I accept that it would be the Bscort Officer who would have the main responsibility to see that there were two escorts. The Pod Officer doesn't know when exercise will be ~taken. Ee's alone in 28 and all of a sudden there's the Iscor: Officer to take the inmates to the yard. It is the Escort Officer who has ccntrol of - 12 - the situation. ?Ir. Codoynotto appears to have rade no effort ,to ensure two escorting officers. He did not call for assistance. When he got to 25, he did not discuss the need fcr assistance with Mr. De Jonge. When it was time to return from -he yard to 2B, Mr. Codoynotto did not give Mr. Prince-Cox (whc may have been in charge of . me exercise) time to enter the situtzLon meaningfully. Again, he took his decision to return to 23 wit; only one escort. In this situation, I think that the grievor knc;-ingly engaged in a practice w:?ich was not proper. With respect to the miscount, though it was an honest error and may have been assisted by the passing of Mr. Ransom and others in the hallway while the grievor was coi;r.ting, clearly this was a failure of performance which could have resulted in serious problems. If it jras a more active inmate than !+??. Iredale who had been left behind, there could have been consequences more serious than what did occur. The issue now is whether the failure 50 have two escorts and the miscount merits the one-day suspension. The problem is that having only one escort was a practice tha-. appears to have been done from ti.me to time and no discipline i-as meted out. We had ~no evidence cf anyone else getting such a penalty for this conduct-. Xr. Wilson testified that he knew there was only one man escorting, yet he was i;iiliny to let them ontc zhe ramp. He didn't like it, bE:= he wouldn't stop it. !"lr. Ransom :?stified that he didn't even mention this point in his correcti-: interview with the griever, thoch he said that he didn't kno;- it had occurred .- - 13 - before, and he had never authorized only one escort. ?lr. Ransom confined his interview with the qrievor to the matter of the mis- count. It is important too to consider the group of inmates who were being escorted. It is clear that 2B is considered to be a less dangerous croup than elsewhere in the institution. Only one Pod Officer was assigned there at the time, though there were two less dangerous 'to escort the everywhere else apparently. It was inmates of 2B with only one officer, inmates. than it would be for other The purpose cf discipline is to induce correct conduct in the future. 3y disciplining an employee for certain conduct, the employer is saying that the conduct was wrong and that the employee is required ts alter his conduct in the future. There are therefore two aspect s in judging the appropriateness of a penalty for inadequate Ferformance - firstly, the nature of the conduct in question: and, secondly, the circumstances cf the employee. With respect to this second aspect, it is accepted that, all other conditions being equal, employees must be treated consistently. :-:owever, arbitrators have long realized that similar conduct may merit diffarent discipline if the employer has good reason and can show that the difference is necessary in order to provide the same inducement of correct conduct in the future. r'oz example, given the same improper action, an employee with a clean record and lonq seniorLty will often merit far less discipline than an employee with little seniority and a ?oor emp1oymer.t record. i - 14 - These two employees have different "rehabilitative potential" ((see Brwn and Beatty, Canadian Labour Arbitration (1977), at pages 331-2), and merit different discipiinary treatment. In our case, the grievor's work record is not an exemplary one. In 1981, there had already been serious concern shown by management about his performance. This is related above. Mr. Codoqnotto's demeanor and conduct at our hearings, both as a witness and as an observer, demonstrated little concern for his conduct. It is quite clear that; in order to induce.adequate per- formance in the future, Mr. Codoqnotto may merit a more severe disciplinary sanction than others who have engaged in the same conduct. In my view, bearing in mind the totality of the qrievor's conduct in question, and his demonstrated "rehabilitative potential", the one-day suspens,ion here is reasonable. Therefore, the grievance is dismissed. 7. . 361'? :: 4422 , .l.C Done at London, Ontario, this i-I:.day of ,"-;- hi,, 1982. G-.wg ------A;: f "I dissent" (to foliow) E. WcIntyro, ?!ember 2. J. Orsini, Membe.r 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12; 13. LIST OF SXHIBITS An ex'ract i from the 2B Loq-book Occurrence Report concerning exercise proceedings, De Jonqe Daily Exercise Sheet An extract from tha Xain Corridor Log-book Occurrence Rtsort ccncerninq exercise, Wilson Occurrexe Retort concerning exercise, Ransom Standin; Order re exercise 0ccur:ence Report from the grievor Letter of sus?ensicn Annual appraisal, !;ovember 26, 1381 Occurrence Report re lack of supsort Report re new policy Occurrence RoFrt, April 18, 1982, Rows