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HomeMy WebLinkAbout1982-0276.Asselstine.82-10-14IN THE IMATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Ken Ass&tine) and The Crown in Right of Ontario (Ministry of Correctional Services)) P. Draper Vice Chairman S. Schachter Member W. Evans Member G.A. Richards Grievance/Classification Officer Ontario Public Service Employees Union UI ~, P.D. Van Horne Staff Relations Officer Ministry of Correctional Services September 14, 1932 -2- The Grievor grieves that a~ one-day suspension without pay imposed on him on February 12, 1982, was unjustified and requests that it be rescinded. The Grievor was first employed by the Employer in September 1977 at the Hamilton-Wentworth Detention Centre as a Correctional Officer 1. About one year later he was promoted to Correctional Officer 2, the classification he now holds. On January 25, 1982, the date on which the Griever’s alleged offence took place, he worked a 0945-1815 shift and carried out three assignments to escort inmates outside the Centre. All three trips were made in a van driven by the regular duty driver, also a C02. The van had no screen between the driver’s seat and the seat where the Grievor and the inmate sat. In each case the inmate sat behind the driver and the Grievor sat beside him, an arrangement to which the driver made no objection. Shortly before 1600 he was again assigned to escort an inmate outside the Centre. The inmate, who was housed in the maximum security area of the Centre and was considered dangerous, was in full security equipment (leg-irons and handcuffs). eon this occasion, the duty driver not being available, the driver was H. Adams, a CO3 who had ‘temporarily been assigned as Team Leader in the admitting and discharging area. The vehicle was a small four-door station wagon which had no screen behind the driver’s seat. At the Griever’s order, the inmate entered the right rear door of the vehicle and .moved over to the left side. Adams ordered the Grievor to have the inmate move back to the right side to which the Crievor replied that he had “been doing it this way all day”. -3- The evidence of Adams and that of the Grievor is in conflict as to 5hether or not this remark was accompanied by foul language. Raising his voice and pointing a finger, Adams repeated his order. Again there is conflicting evidence from the two witnesses as to whether the Grievor obeyed this order or. whether Adams had to order the inmate to move. The Grievor slammed the right rear door and walked around the rear of the vehicle to the left side. He spoke to Adams to have the driver’s seat moved forward so that he could sit behind him and beside the inmate. Once inore there is conflicting evidence as to whether a request or a demand was made. The trip proceeded without further event. Later in the day Adams described his encounter with the Griever to the Shift Supervisor, who is senior in rank to both men, and said he intended to speak to the Grievor about it. The Shift I/C advised him to “write him up”. At about 1820 Adams was in the Shift I/C’s office when the Grievor entered, reported in and was given permission to leave as it was the end of his shift. Immediately after the Grievor had left the office the Shift I/C reminded Adams that he had intended to speak to the Grievor. Adams went out into the cbrridor and called and motioned to the Crievor to come back but did not tell him why or give him a direct order. The Grievor replied that he was now on his own time and left the Centre. Adams was instructed by the Shift I/C tq>write a report of the incidents with the Grievor which he did on the following day, January 26th. The Grievor was also required to write a report of the incidents which he too did on January 26th. -4- D. Phillipson has been Superintendent of the Centre since April 1974. He testified that the Centre is a modern seven-storey maximum security institution that accommodates 300 male and 40 female inmates and has a full-time staff of 200. CO2’s are general duty officers who supervise, escort and see to the health and security needs of inmates. CO3’s are first-level supervisors who direct and instruct subordinate staff ‘members. Correctional Officers receive thorough training in security measures and each is issued with a copy of the Centre’s Standing Orders. Standing Order Number I sets out efficient ways of supervising inmates and working effectively with fellow employees. In it staff members are told that “your actions, attitudes and mannerisms should-be exemplary because you are in the eyes of inmates and the public at all times”; that they should ‘expect the correct attitude from inmates and fellow employees”; and that they should never show “that you have been angered personally by being profane, vulgar or abusive”. Standing Order Number 39 deals with the transportation of inmates. It states that when performing escort duty CO’s are “totally responsible for the safe custody and return of inmates” and that inmates are not to be placed “behind the unprotected driver”. After considering the reports of the Griever’s conduct on January 25, 1982 and holding three disciplinary meetings he decided that the grievor had conducted himself in a manner unbecoming a Correctional Officer and that discipline was warranted. The probability (as we see it) that no action against the Crievor would have been taken had it not been for the intervention of the Shift I/C, and the conflicts in the evidence, obviously do not advance the Employer’s -5- case. But whichever version of the events of January 25, 1982, might be considered the more reliable - that of Adams or that of the Crievor - it remains clear that a confrontation took place between them over the seating of the inmate in the vehicle. It was an unnecessary and unfortunate confrontation which the inmate could not help but observe, which the Grievor initiated and’for which he must consequently bear responsibility. He has had considerable experience on escort duty; he is well aware of the Centre’s Standing Orders; Adams is his superior officer; and an inmate was present. Whether or not Adams acted officiously and whether or not the Griever reacted insolently, while not irrelevant factors, do not materially alter the conclusion compelled by the evidence as a whole that the Grievor acted improperly. We leave entirely out of our considerations the incident at the end of the Griever’s shift. In our opinion Adams’s handling of it was so unprofessional that we are’ not prepared to assign any blame to the Grievor for what occurred on that occasion. We find. that the allegation against~ the Grievor of engaging in conduct unbecoming a ‘Correctional Officer is supported by the evidence concerning his conduct while on escort duty on January 25, 1982, and that just cause for discipline has therefore been shown. There remains the question whether or not the penalty imposed was just and reasonable in all the circumstances. The efforts being made by the Superintendent of the Centre to promote high morale, mutual respect, cooperation and enlightened concern for inmates amongst the -6- members of his staff have our full sympathy. Conduct that runs counter to those objectives clearly cannot be ignored. However,, while a one-day suspension without pay involves only slight financial loss to the Grievor, it is nevertheless true that in the disciplinary order there is a significant difference between a written reprimand and a suspension. The notice of the suspension states that “a progressive punitive approach is to be adopted”. We believe that in the circumstances ,present here a written reprimand is the appropriate first step in that approach and will serve both to deter the Crievor from further conduct unworthy of his position and direct attention to the standard of performance expected of the Centre’s staff members. Accordingly, it is ordered that the one-day suspension imposed on the Grievor on February 12, 1982, be rescinded, that the wages and benefits (if any) due but not received because of the suspension be restored to him, and that all reference to the suspension be removed from the Employer’s records. It is further ordered that a written reprimand be issued to the Grievor in respect of hii conduct towards a superior officer and in the presence of an inmate while on escort duty on January 25, 1982. We are unanimously of the opinion that the Griever’s admitted violation of the Centre Standing Orders regarding escort duty~ should not pass without comment. Security measures prescribed for the protection of staff members and the public are surely of paramount importance. In particular, because of the dangers inherent in the transportation of inmates outside the Centre, observance of such measures is crucial. The Crievor’s -7- violation of Standing Orders rendered him liable to severe disciplinary action by the Employer. But that is not the allegation before us and it hardly need be said that there is no authority in the Board to fashion an offence that it might consider suited to the circumstances or, put more formally, to decide an issue not submitted to it. DATED at Toronto, Ontario this 14th day of October, 1982. P. Draper Vice Chairman I ‘1 I concur” (see adclendw~ attached) W. Evans Member /lb -3- ADDENDUM Given the time period when the charge was laid I feel obliged to concur in the Chairman’s award. The situation, however, may well be, changed with the entrenchment of the Charter of Rights and such a vaguely worded charge as “conduct unbecoming an officer” may no longer be permitted to stand. Before concluding 1 believe specific mention should be made of the commitment of the Superintendent to the principle of progressive discipline. His commitment should be an example for other managers in the public service. Our modification of the penalty he imposed stems only from our conclusion that he mistakenly applied this principle. 5. Schachter Member /lb