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HomeMy WebLinkAbout1982-0572.Fox.83-06-23IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (T.A. FOX) Griever Before: The Crown in Right of Ontario ((Liquor Control Board of Ontario)) Employer P. Draper Vice Chairman J . Best Member D.B. Middleton Member For the Grievor: C. Beaulieu, Consultant For the Employer: C. Slater, Counsel Hicks IMorley Hamilton Stewart d( Storie Hearing: May 17, 1983 -2- DECISION The Grievor, Thomas Fox, originally grieved that in a competition conducted by the Employer in September and October, 1982, (Job Posting #1127) he was wrongfully denied promotion to Liquor Store Clerk Grade Q (Clerk 4) at Store #97 in Napanee, and requested that he be awarded that promotion together with compensation for loss of pay from the date of appointment of the successful applicant. At the hearing the Board was informed that in a later competition the Grievor had been promoted to a Clerk 4 position at Store /HO in Kingston. The remedy he now seeks is a declaration that Article 16.5(a) of the’collective agreement requires the Employer to specify (i.e. to name or identify) a geographic area for the purpose of determining the eligibility of employees to apply for a new job or a vacancy and within which notice of the job opening will be posted. The Griever also requests compensation for loss of pay in the interval between the appointment made under Job Posting 111127 and his own appointment to Clerk 4. Article 16.5(a) reads: (a) If a new job classification within the bargaining unit is created or a permanent vacancy occurs in an existing job classification before inviting applications from persons not employed by the Boards, the Boards will post within the geographic area as specified, notice of such new job or vacancy for a period of ten (IO) working days during which employees within such area who have completed their probationary period may apply. The notice shall stipulate qualifications, classification, salary range, department and location concerned. -3- The Employer’s practice is to direct job postings to employees working at stores identified by numbers. Copies of job postings are sent to the Union. Job Posting #I127 listed stores fB4 &‘icton), /I96 (Desoronto), #97 (Napanee), #IO5 (Tamworth), and #517 (Amherstview). The successful applicant was a less senior employee than the Grievor who worked at the Amherstview store. At the time of the competition the Griever was working ,at Store #I67 in Kingston, which was not listed. However, having heard of the competition “by word of mouth,” he applied. His application was acknowledged. About the time the name of the successful applicant was announced (the Griever is not certain of the date) he inquired as to the disposition of his application and was told that because he was not working at a store within the geographic area of the Napanee store he was not eligible to apply and that his name had been “red lined”, that is, removed from the bid list. When he pursued the matter with Peter Willcock, the Employer’s Recruitment Supervisor, who administers the job posting procedure and determines geographic areas, he was again told that he was not eligible because the store where he worked was outside the applicable geographic area. The Employer has never put on record any “geographic area as specified” or (except in metropolitan areas) any listing of stores falling within a particular geographic area. The Union’s understanding has been that a geographic area is a 25 mile radius from the store where the new job or vacancy occurs but it does not, in practice, monitor job postings so -4- as to verify the area covered or the accuracy of the list of stores. Willcock testified that the use of geographic areas started in 1974 as a result of negotiations between the parties which led to the present Article 16.5(a). In 1975 20 road miles was established as the limit of such areas. He concedes that there have been exceptions to the application of the 20 mile standard as, for example, where a store ls more than 20 miles from any other store and so would otherwise never appear in a job posting. He also acknowledges that a 1976 job posting for a vacancy at the Napanee store listed stores in Belleville and Kingston, both being beyond the 20 mile limit, but states that it was decided afterwards that that had been a mistake and would not be repeated. Willcock also states that the Napanee store has not been listed in job postings for vacancies at Kingston stores and that the stores in the geographic area in such cases are the three Kingston stores, the store in Amherstview and the store in Sydenham. However, he admits that the latter store was omitted from a November, 1982, job posting for a Kingston store vacancy. He would tell any union official who asked, what the geographic area is. The twofold submission is made by counsel to the Employer that the matter is beyond the jurisdiction of the Board because, first, the specifying of a geographic area (or of geographic areas) is an exclusive management function and, second, the grievance before the Board is an individual grievance that is being presented as a policy grievance. -5- As to the first submission, the issue is not the right of the Employer to establish a geographic area for the purposes of Article 16.5(a) using whatever criteria it may choose (which is not in dispute) but whether, having done so (which it has), it is required by the article to do anything more. We are of the opinion that in Article 16.5(a) the Employer has accepted an obligation relating to the administration of the article and in so doing has qualified what would otherwise be an exclusive management function.’ For the reasons which follow immediately, we consider that we cannot adjudicate the issue of that obligation. As to counsel’s second submission, we agree that an individual grievance cannot be converted into a policy grievance where, as here, under the collective agreement (see particularly Article 21.6) individual grievances and policy (or union) grievances are mutually exclusive. See Brown and Eieatty, Caoadian lAoor Arbitration at pp. 75-77. It is therefore not open to us to make a declaration of general application regarding the Employer’s obligation under Article 16.5(a). There is arbitral jurisprudence to support the proposition that an arbitrator may grant an individual claim for a declaration of a right or entitlement under a collective agreement where the griever has an interest to be protected that relates to the subject matter of the grievance (Re Into (1972) 24 L.A.C. 51 (Weiler); Re Union Gas (1973) 4 L.A.C. (2d) 132 (Rayner); Re Into (1975) 9 L.A.C. (2d) 83 (Simmons). As the concept was applied in the latter case, any declaration that might be made in such -6- circumstances would not be of general application but would be restricted in its application to the particular griever and the issues raised by the grievance. It is not argued for the Griever that Job Posting #I127 should have specified the applicable geographic area and no objection is made to the fact that it merely lists by number the stores to which it ls addressed. Rather, it is argued that a separate, general obligation rests upon the Employer to specify geographic areas to be used in job postings and that the Board should so declare. We come back to the point that what is before us is an individual grievance. It seems to us that to make the declaration requested would be to permit the Grievoi to achieve indirectly what we have already decided he cannot achieve directly and would therefore clearly not be appropriate. The issue raised by the grievance is whether or not the Griever was eligible to apply for the Napanee vacancy. Eligibility is determined by reference to the applicable geographic area. The Employer is on record in this proceeding as stating that at the material time the applicable geographic area was an area with a limit of 20 road miles from the Napanee store. The direct conflict of evidence that exists in that regard cannot reasonably be resolved in favour of the Grievor. Our conclusion must be that; on a balance of probabilities, the Griever has failed to prove - - his eligibility. It follows that there can be no award of compensation based on an improperly withheld promotion. The grievance is dismissed. Unhappily for the relationship of the parties, the disposition which we have felt bound to make of the case leaves unresolved the real issue that separates them - the nature of the Employer’s obligation under Article 16.5(a) by reason of the reference to “the geographic area as specified”. Immediately prior to the hearing the parties attempted to reach a settlement of the issue but without success. It is to be hoped that the airing of the problem during the course of this proceeding will assist towards its final resolution. DATED at Toronto, Ontario this 19th day of October, 1983. P. Draper Vice Chairman \ “I dissent” (Dissent to follow) J. Best Member 2 .fi. &b/d& D.B. Middleton Member 2:1200 2:3120 5:2520 2:1300 2:3122 6:2310 2:1450 2:3124 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Mr. G. Lusis) - And - The Crown in Right of Ontario (Ministry of Correctional Services) Grievor Employer R.L. Verity, Q.C. Vice Chairman S. Kaufman Member A.M. McCuaig Member For the Grievor: M. Mercer-DeSantis Grievance Officer Ontario Public Service Employees Union For the Employer: J.F, Benedict Manager, Staff Relations Ministry of Correctional Services Hearings: February 11, 1983 April 7, 1983 May 30, 1983 i - 2 - AWARD The Gri evor, Gunars Lusis, was discharged on November 15, 1982 for his alleged negligence in the escape 'of a prisoner from St. Michael s Hospital'in Toronto on the night of November 9. In a grievance dated November 15, the Grievor alleges dism i without just cause and by way of settlement seeks reinstatemen t with no loss of benefits. The Gri evor aged 56 was employed as a Cor,rectional~ Officer 2 at the Toronto Jail and had been employed with the Ministry at that location since 1975. In a letter of termination ssal to the Grievor,. Superintendent C. C. DeGrandis concluded: "that the escape of inmate H. was aided by your obvious and self admitted negligence and I further conclude that if such negligence had not taken place, inmate H. would not have had the opportunity to escape as The Superintendent's allegat the Grievor were based upon the follow 2): "A) That an ex-inmate on Novembe to visit inmate H. for a per thirty-five minutes, and tha he did." ons of negligence against ng findings of fact (Exhibit 8, 1982, was allowed od of one hour and you we,re aware no ex-inmates are allowed to visit inmates of the Toronto J,ail without the expressed permission' of the Superintendent, and if such approval is granted, the visit will be for only twenty~minutes, I must conclude youwere negligent in the discharge of your duties as a Correctional Officer. -3- B) Cl D) That you did not inform the Shift Lieutenant either on November 8, 1982, or November 9, 1982, that an ex-inmate, known to you, had on success- ive days visited or attempted to visit inmate H., I must conclude you were negligent in the discharge of your duties as a Correctional Officer. That you removed the physical restraints from inmate H. (leg irons attached to one leg and the hospital bed), I must conclude you were negligent in the discharge of your duties as a Correctional Officer. That you allowed inmate H. to go into the washroom area to 'wash up' without maintaining constant and uninterrupted visual contact with him, I must conclude YOU were negligent in the discharge of your duties as a Cor;ectional Officer." Mr. H. an inmate at the Toronto Jail was hosp italized on November 7, 1982 as a result of his having swallowed two spoons. On November 8, the Grievor wasp assigned to hospital duty to guard inmate H. on the 3:00 to 11:OO afternoon shift. He performed the same function on ~the same shift on November 9. Inmate H. was placed in a room shared with several other patients on the second floor of St. Michael's Hospital. The Grievor was experienced in performing Hospital assignments having done so approximately 10 to 12 times a year for a number of years. The Grievor's evidence was uncontested that he was provided with no information concerning the inmate by the Supervisor Mr. Swan. It was the Grievor's evidence that he was simply told the name of the patient and the location of the Hospital. The Grievor testified that he did not know inmate H. personally, but had heard "through the grapevine" that H. had swallowed two spoons and that he was a known homosexual. - 4 - The evidence is clear that the Grievorallowed e$-inmate M. and H.'s sister to visit inmate H. for 1 hour and 35 minutes during the afternoon of November 8. The log book records the fact that the ex-inmate identified himself by name and Nation.al Parole Board number. The Grievor did not seek the Superintendent's'approval for that visit although he did record the particulars of the visit in the log book. Similarly, on November 9, the same ex-inmate and H.'s sister visited inmate H. briefly and,in so doing left several packs of cigarettes and three oranges for the inmate. That visit (admittedly,brief) was not recorded in the log book. It is standard practice that a log book is maintained by Correctional Officers in the Hospital in the same fashion as at the Jail. The sequence of events leading to the escape of inmate H. on the night of November 9 was a matter of some dispute. Grievor offered three separate (and somewhat differing) exp as to what transpired. In his Occurrence Report (Exhibit 7 explanation as follows: Grievor wrote a brief . C. DeGrandis "To Supt. Mr Toronto Jai 1; November 9/82; Time Subject: Escape of H. from St. M Sir, - 23.55 chael's Hospital On the above date I started.my-sh ft at 2.30 PM and at t he entrance of the Hospital I met his sister A.H. and one M. who had visited H. on the previous day as per log book. I asked them how he was to-day. They rep1 ied OK. We just are going to get him some oranges and smokes. They came in for 3 minutes. I took over the shift in the prescribed manner and the e,vening The anations , the ‘. - 5 - was quiet. At 9 PM H. asked the nurse if he could have a towel and clean pajamas for the night. At 9:30 PM I uncuffed Harris and let him in the washroom. At about 21.35 I went to check and found the window open and tied sheets hanging to the floor below. I radioed control and they received the message at approx 21.40. The Police arrived about 5 mi.nutes later and started their investigation. I realize. now it wa's my duty to be with him while he was in the. washroom, but since there was only one exit and I had checked the window and could not open it assumed the place escape proof. In conclusion I would like to ask for leniency when considering this occurrence as my life truly depends on my work at the Institution. G. Lusis, C.0.2" At a meeting on November 12 with Superintendent OeGrandis, the Grievor admitted that he had removed all physical restraints from inmate H. at approximately 9:30 p.m. for the purpose of allowing the inmate "to wash up". The' Grievor admitted that he had not positioned himself to watch inmate H. In fact, the washroom door was closed. The Grievor also stated that inmate H. was in the washroom some 10 to 12 minut,es unattended. In his evidence, the Superintendent testified that he got the impression from the Grievor's account during the meeting of November 12 that the Grievor had been watching television while the inmate was left unattended in the washroom. ,(. :i . -6. The Grievor testified at the Hearing that he deliberately left the inmate unattended in the washroom to avoid any potential complica.tion which might arise from the Grievor's alleged sexual preference. The Grievor testified that inmate H. went into the washroom; came out again at 9:35 for soap and shampoo; re-entered the wash.room and was allowed.to remain unattended for another 7 minutes. The Grievor's testimony was that he entered the washroom at 9:42 and observed that inmate H. had escaped by the bathroom window. The escape was affected by the tying of sheets together which were attached to the washroom radiator. The evidence is clear that the Grievor was greatly distressed by the escape and had some considerable difficulty contacting the Jail on his two-way radio. The Institution was first advised of the escape shortly before 10:00 p.m. by means of a garbled message from the Grievor. Support Supervisor Anthony Walmesley testified that the Grievor was in a "nervous state" and "didn't look well" when Walmesely arrived at the Hospital later that evening. The Grievor's general condition was also observed in the same fashion by the Toronto J~ail Assistant Superintendent Hugh Nicholson. Two Police Constables from the City's 52nd Division arrived on the scene promptly following the escape for the purposes of investigation. Inmate H. quently apprehended by the Police on November 30 whi' 20 days after the escape. was subse- ch was some t :; :,; i - 7 - Superintendent DeGrandis assumed his present responsibilities eat the Toronto Jail on August 30, 1982. The Superintendent was forth- right in his testimony that staff training was a continuing problem at the Jail. .To his credit, the Superintendent has instituted a meaningful .program to correct that.problem. He candidly admitted that his decision to discharge the Grievor was made without resort to past disciplinary response for similar incidents at the Jail. The Superintendent testified that "custody is the heart of the Correctional Officer's job and when you fail at that there is not much left to fail at". On behalf of the Ministry, Mr. Benedict cited the relev,ant standing orders of the Toronto Jail and the several examples of the Grievor's negligence in failure to follow those orders. He argued that there were no mitigating factors which would justify the reduction of the penalty. He also ably re,viewed the relevant sections of the Ministry of Correctional Services Act, 1978 R.S.O. Chapter 37, and Regulations 515-78 and 243-79 as they relate to the Superintendent's responsibilities. 2 For the Grievor, Ms. Mercer-DeSantis admitted that the Grievor had made errors in judgement which did support the imposition of some disciplinary penalty. However, the thrust of her argument was that the penalty of discharge was too severe in all the circum- stances. By way of general background, it is clear that the Superintendent of each institution within the. Ministry had the authority and the duty to issue directions to all staff which are commonly referred to as Standing Orders. The Standing Orders direct staff in the form of operational guidelines but cannot be considered as all encompassing. Clearly, the Standing Orders are designed to be interpreted and enforced by the staff in a reasonable and intelligent manner. In the instant Grievance, the relevant Standing Orders at the Toronto Ja to il were set out in Exhibits 5a, 5b, 5c and 6. In the forward Exhibit 5a it stated: "It is the duty of all employees to read and understand .the standing orders. On return to duty from vacation, sickness or days off, employees will acquaint themselves with newly published Standing Orders or amendments.' Also, it is stated: "It is not the intention of these Standing Orders to deal with every situation that may arise; they are issued as a guide and should be interpreted and enforced in a reasonable and intelligent manner." In Exhibit 5a the relevant provis~ions of the Standing Orders bear repetition under the heading of "Reporting and Discharge of Duties by Officers": “8. Ensure the security of all inmates under his/her control, follow, all instructions and procedures in regard to custody, and take all additional precautions to main- tain the security of the institution." "10. . "12. The - 9 - Before completing his/her tour of duty the staff member shall make a written report to the Shift Supervisor of any unusual incidents which may have occurred during his tour." All staff members should display initiative and common sense when dealing with inmates. 'This sort of action can prevent problems for you and other. staff members." following provision is relevant under "Security Checks" in Exhibit 5a: "Security is one of the main tasks in our Institutions, and if all staff are security conscious, then our problems will be minimized. Therefore, all officers must be alert and observant at all times for any unusual incidents or behaviour." Under "Visits by Ex-Inmates" Exhibit 5a states: "Visi ts by ex-inmates are not permitted without the approval of the Superintendent." In "Reporting Esc~apes:' it stated that: "The escort officer(s) will immediately report the escape to the Shift Supervisor and submit a report detailing who escaped, names of those in the party, area of escape and other informa- tion which could be of value." Standard Order Number 29 entitled "Community Hospital ~Duties" is also part of Exhibit 5a. The following provisions of OrderNumber 29 are relevant: "29. a. 1. Only permanent Correctional Officers will carry out hospi,tal duties. Staff class- ified as casual officers may be employed in the institut-ion to replace officers carrying out hospital duties, but are not to carry out such duties themselves." "29. a. 3. As far as practical, all operational routines and institutional regulations that pertain to the jail, will be appli' to hospitalized inmates." "29. a./4. Visitors will be allowed as laid down i ed n the Regulations made under the Ministry of Correctional Services Act, but subject to the requirements ~of the hospital medical staff and in conformity with the hospital visiting hours. As in the institution, no articles will be allowed to pass between the inmat,e and visitor." "29. b. 7.. When the officer needs to be out of sight of the inmate for a short period of time, he should endeavour to have a hospital security officer, a police officer or an employee of the Toronto Jail replace him for that period. If these persons are not available, the escorting officer should radio the jail and explain the circumstances. In the event an emergent situation occurs and the officer must leave the inmate/patient unattended for anyperiod of time, the handcuffs, leg irons will be used. When the officer returns to duty, the institution.should be advised by radio and the facts entered in the Hospital Duty Log." - 11 - "29. b. 8. The Shift Supervisor will visit the hospital at least once in every shift to examine security/control, escorting staff's well being etc. and enter the appropriate obser- .vations in the Hospital Duty Log Book and the Shift Supervisor's Duty Log on his return to the institution. In the event the Shift Supervisor is the officer in charge of the jail, he may designate a Senior Correctional Officer to carry out the hospital rounds." “29. c. relevant Jail were revised on July 30, 1982. The following Sections are (Exhibit 6): In all cases where hospital duty,is required, the Shift Supervisor will determine that the officers detailed for hospital duty are suitable for assignment, bearing in mind such considera- tion as the physique of the inmate, the charges against him or the sentence he is serving and other relevant issues. The Shift Supervisor should he ,deem it necessary assign two officers to an inmate/patient if his charges and behaviour warrant this action." The Standing Orders for Hospital Duty, at the Toronto "b) As far as practical, all operational routines and institutional regulations that normally pertain in the jail will be applied to a hospitalized inmate." ” c 1 Visiting will be allowed as laid down in the regulations, but also subject to the require- ments of the hospital medical staff and in conformity with the hos,pital visiting hours. Extra or special visits must be applied for in the normal manner. No articles will be allowed to pass between the inmate and his visitor(s), and the duty officer will remain within sight and hearing of the inmate." - 12 - "m) If it is necessary to leave the inmate, for the purpose of using the washroom, etc., the staff member should attempt to have a hospital orderly or security officer watch the inmate in the staff member's absence. During this type of activity, both handcuffs and leg irons will be applied, with one. bracelet of the leg iron affixed to the bed." " n ) 'In the event you cannot carry out your duty, inform the institution as expeditiously as possible; i.e. by telephone or hand radio. Attempt to obtain hospital security officer or police officer assistance until such time as a replacement arrives from the institutuion,.' "p) If an inmate does escape your custody, first phone the police, give a description and any other details required from the documents in your possession, record the name of the police officer, and the time the information was given. Second, alert hospital security staff or ask other hospital staff to do so, and advise your supervisor immediately." advised of nor did he receive a copy of the Institution's revised Hospita 1 Duty Standing Orders of July 30, 1982. However, the fact The Board accepts the Grievor's evidence that he was not remains that the Grievor was an experienced officer in Hospital Duty, was aware of the 1975 Standi.ng Orders and accordingly knew the general Hospital routine. In assessing the evidence, the Board finds that the Grievor was honest in his testimony and that his brief Occurrence Report reflectedhis nervous condition following the escape. We are of the.view that he was somewhat confused and disorientated by the ordeal. However, we find that the Grievor could have been ' I! :ri 3 - 13 - more explicit in his recollection of the events when he spoke with Superintendent DeGrandis on November 12. Nevertheless, the Grievor's responses * I leading to the I escape of inmate H. establish beyond any doubt that he was negligent in the performance of his duties. There is no evidence that ~the Grievor was in any way involved.in a criminal conspiracy to facilitate the escape. However, beginning with the unauthorized visit of ex-inmate M., the Grievor's actions did demonstrate negligence on his part. We accept the Grievor's evidence that he attempted to prevent the visit of ex-inmate M. and yet his own evidence indicates that he was not in control of the si tuation on November 8. Clearly, he was negligent in releasing the physical restraints from inmate H. and allowing him to remain in the washroom without constant visual contact. The Grievor's rationale for failure'to kee,p the inmate under constant visual contact is totally inconsistent with In that regard, the sexua 1 irrelevant considera~tion. is to be alert and observ a his duties as a Correctional Officer. orientation of an inmate is an The duty off a Correctional Officer n turn necessitates nmate. The privacy primary and over- nt at all times which constant and uninterrupted visual contact of an of an inmate is a secondary consideration to the riding consideration of the custody of an inmate In its presentation, the Union focused much attention to the issue of double escort for hospital duty. That issue has been - 14 - a constant concern to the Union, as indicated by the evidence, and .has been the subject of lengthy negotiations between the Parties. Arbitrator Howard Brown recognized the merits of the issue in his interest Award affecting the Parties dated July 25, 1982 (See pages 11, 12 and 13 of the Brown Award). For the purposes of the instant Arbitration, the Board finds that the two patrol issue is not a relevant factor. We accept the evidence of. Superintendent DeGrandis that the Grievor's Hospital assignment on November 8 and 9 of inmate H. was not of sufficient complexity to warrant the double escort. The more .interesting aspect of the instant Grievance is the appropriateness of the penalty imposed. Relevant considerations affecting the mitigation of penalty were summarized by the late Arbitrator Judge R. W. Reville in his frequently quoted Award of Re United Steelworkers of America, Local 3257 and The Steel Equipment Co. Ltd. (~1964), 14 L.A.C. 356. The rationale of Arbitrator Reville bears repetition atpages 356 - 358. "It has been held, however, that where an arbitration board has the power to miti.gate the penalty imposed on a grievor, the board should take into considera- tion in arriving at its decision the following factors: 1. The previous good record of the grievor - Re United Steelworkers of America, Local 5297, and Frontenac Floor & Wall Tile Ltd. (1957), 8 L.A.C. 105. - 15 - 2. 3. 4. 5. 6. 7. 8. 9. 10. The long service of the grievor - Re U.A.W., :og;;l 28, and C.C.M. Co. (1954), 5 L.A.C. Whether or not the offence was an isolated incident in the employment history of the grievor - Re Amalgamated Ass'n of Street, Electric Railway and Motor Coach Employees of America and Sandwich, Windsor & Amherstburg Railway Co. (1951), 2 L.A.C. 684. Provocation - Re United Brotherhood of Carpenters, Local~2537, and KVP Co. Ltd. (1962), 12 L.A.C. 386. Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated - Re U.A.W., Local 112 and DeHavilland Aircraft of Canada Ltd., being an award of Professor Bora Laskin dated March 13, 1959 (unreported). Whether the penalty imposed has created a special economic hardship for the grievor ih the light of his particular circumstances - Re U.A.W.,, local 127, and Ontario Steel Products Ltd. (1962), 13 L.A.C. 197. Evidence that the company rules of conduct, either unwritten or posted, have not been. uniformly enforced, thus constituting a form of discrimination - Re Retail, Wholesale & Department Store Union, Local 414, and Dominion Sotres Ltd. (1961), 12 L.A.C. 164. Circumstances negativing intent, e.g., likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it - Re United Electrical Workers, Local 524, and Canadian General Electric Co. (1957), 8 L.A.C. 132. The seriousness of the offence in terms of company policy and company obligations - Re Mine, Mill and Smelter Workers, Local 598, and Falconbridge Nickel Mines Ltd. (1956), 7 L.A.C. 130. Any other circumstances which the board should properly take into consideration, e.g., (a) failure to the grievor to apologize and settle ;;es;atter after being given an opportunity to - Re U.A.W., Local 456, and Mueller Ltd. - 16 - ,. (1958), 8 L.A.C. 144; (b) where a grievor was discharged for improper driving of company equipment and the company, for the first time, issued rules governing the conduct of drivers after the discharge, this was held to be a mitigating circumstances - Re Int'l Brotherhood of Teamsters and Riverside Construction Co. (1961), 12 L.A.C. 145; (c) failure of the company to permit the griever to explain or deny the alleged offence - Re Int'l Brotherhood of Teamsters, Local 979, and Leamington Transport (Western) Ltd. .(1961'), 12 L.A.C. 147." Admittedly, the Reville Award related to .the industrial setting; however,the rationale of that Award has had general acceptability'throughout the fie The Board is of the op d of Arbitration.. nion that some of the considerations summarized in the Reville Award apply to the instant Grievance. The Grievor's work record is generally satisfactory. The reference made in the letter of termination to a similar incident involving the Grievor in 1978 was an improper consideration for the implementation of the penalty of discharge,having regard to a memorandum of agreement signed between the Parties effective May 1, 1981 (Exhibit 16). In addition, the Grievor was. co-operative in the investigation of the The escape, and candidly admitted his numerous errors in judgement. Grievor was described by~Assistant Superintendent Hugh Nicholson 'one of the most co-operative people I have ever dealt with - he a proper gentleman". In our opinion, it is unlikely that the Gr would repeat his mistakes in the future. At the Hearing, he was as is 'ievor forth~right in his admission that he would never again remove physical restraints from a hospitalized inmate nor would he permit a hospitalized inmate to remain in a washroom unattended. - 17 * The Grievor's seniority dates back to January 23, 1975. It cannot be said that the Grievor has accumulated a lengthy tenure with the Ministry; however, seven years of continuous employment is~ a significant period and accordingly should not be disregarded. The Grievor's actions leading to the escape of inmate H. appear to be an isolated incident. Mr. Benedict properly admitted that fact in his reply argument. The Board finds that the penalty of discharge does creates an economic hardship on the Grievor bearing in mind his age, the unlikely prospect of alternate employment with Government in view of this dismissal, and his unsuccessful attempts to seek alternate employment. The Standing Orders of the Toronto Jail as they pertain to Hospital duty are outdated and are badly in need of revision. That fact was apparent through much of the evidence and was acknowledged by both the Superintendent and the Assistant Superin- tendent. The Board was encouraged to be advised that the Standing Orders are presently being revised. Hopefully many of the current problems associated with Hospital attendance by Correctional Officers will be eliminated. One of the issues that must be addressed is the acceptable duration of Hospital visits to inmates. - 18 - In the event that reliance is to be placed upon the wording of Standing Orders, common sense would.dictate that each staff member must be provided with written copies of all Standing Orders and revisions to ,those Orders. The past practice at the Toronto Jail of posting or reading Standing Orders is an in- adequate method of the dissemination of those Orders. One aspect of this grievance that merits comment is the adequacy of information given to Correctional Officers assigned to Hospital duty. As indicated previously, the Grievor was told ' only the name of the inmate/patient and the location of the Hospital. ~That paucity of information was grossly inadequate in the circum,- stances. Security will always be a problem when an inmate is admitted to a community Hospital in facilities shared with regular patients. Recognizing~ that fact, for a Correctional Officer to be 'effective in the discharge of his duties, that Officer must be provided with all information deemed relevant by the Superintendent, concerning a hospitalized inmate. In the instant grievance, th,e evidence is clear that the Grievor was unaware of the essential fact that inmate H. had been sentenced to a 15 year term for the offence of break and enter. At the time of the escape, he was awaiting transfer to the appropriate institution. The escape of an inmate is always a serious matter which sets in motion a series of potenti.al consequences. The cost factor in the apprehension of an inmate who has escaped, the possibility of criminal activity while that inmate is at large, and the future relationship between the institution and a community Hospital, are'but a few of those conseouences. In our view, it is commendable that Superintendent OeGrandis did not wish to be constrained by the.disciplinary responses of his predecessors for similar offences. However, it is somewhat- unrealistic to totally ignore those .past responses. To do so inevitably leads to the charge of harsh and arbitrary action and inconsistency in disciplinary approach. Several examples of past disciplinary responses, and lack of discipline for similar violations of Standing Orders at the Toronto Jail were presented in evidence. No evidence was presented~of a dismissal of a Correctional Officer as a resu it of the escape of an inmate. The responsibility for the administration of discipline falls within the jurisdiction of the Superintendent of any institution, subject to arbitral review. Clearly, each case must be determined on its own particular set of facts. In our opinion the penalty of discharge imposed upon the Grievor was unduly harsh. Accordingly, we exercise our authority by virtue of Section 19(e) of the Crown Employees deliberat i Collective Bargaining, Act. The Board considered the following Awards in its ons as to the appropriate penalty - Ibbitson, (Pub lit Service Staff Relations Board June 9, 1981); Johnston, 14/83 (Verity); Hopcraft, 4/75 (Beatty); Foy, .99/79 (Swinton); and - McQueen, 430/80 (Delisle). Having regard to these cases and ,to - 20 - the rationale of the Re United Steelworkers of America case cited above, the Grievor's departure from the Standing Orders, but also having regard to the employer's indirect and possibly incomplete communication of these Standing, Orders as well as its failure to provide the Grievor with adequate information about the inmate, the Board is of the ooinion that the Grievor must bear some financial penalty. Following the final day of Hearing on May 30, 1983, the Board reinstated the Grievor to his position as a Correctiona Off icer 2 at the Toronto Jail without loss of seniority. In 'lieu 1 of discharge, the Board shall substitute a penalty of a three'month suspension without pay upon the Grievor. The Grievor shall be compensated for loss of wages and benefits at his regular salary (no overtime entitlement) subsequent to the three month suspension to and including the date of his reinstatement, mi.nus any U.I.C. benefits received by the Grievor in the interim. We shall jurisdiction in the event the Parties are unable to determi appropriate compensation. retain ne the - 21 - DATED at Brantford, Ontario this 23rd day of June, 1983. BEerity, Q.C. Vice Chairman /rydfl&, S. Kaufman- v Member A.M. McCuaig Nember 4:1500 7:3000 7:3610 7:4000 7:4300 7:4400