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Home My WebLink About1984-0295.Merry.84-11-23Between: Before: For the Grievor: Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (G. Merry) For the Employer: Hearing: J .W. Samuels Vice Chairman S.J. Dunkley Member A.G. Stapleton Member N. Luczay Grievance Officer Ontario Public Service Employees Union F?. Radley Staff Relations Office,r Ministry of Correctional Services October 23, 1984 DECISION The grievor is a Correctional Officer 2 at the North Bay Jail and has 8 years experience as a full-time officer. On February 14, 1984, he was suspended for four days without pay as a result of an incident which occurred on the evening of January 29. He argues that there was no just cause for the discipline. On January 29, the grievor was the duty officer on the second shift (3:OO to I I:OOPM) in the first floor cellblock. The cellblock is a rectangular enclosure about 70 feet long and 35 feet wide, with two banks of ten cells running lengthwise down the area. Each cell has a barred door, and there is a common “day space” in front of each set of ten cells. The cells and day spaces are surrounded by an inner rectangular area which is enclosed by bars. Around this inner area, along three sides, there is a corridor some three and one-half feet wide, in which the officers patrol. On the fourth s.ide, at the end near the door leading out of the cellblock, there is a wider corridor, with the duty officer’s desk and a stairwell to the second floor. At around I O:OOPM, apparently unseen and unheard by the grievor though he was in the cellblock, three inmates attacked a 16-year old inmate. They chased and cornered him in the day space, then tied him in the open doorway of one of the cells, facing out towards the day space. His hands were spread over his head and tied to the cell bars with a sheet. His feet were tied together with a towel. His tee-shirt was pulled up over his head, and his pants and underwear were pulled down around his ankles. Apparently, no further harm was done to him. While making his rounds, the grievor discovered the youth. By the time the grievor came on the scene, the inmate was struggling to untie : .z 3 -* one hand with his teeth. All the other inmates were in open cells along the back of the day space, and the young man was alone. The grievor immediately formed the opinion that it was all a practical joke, “horseplay”, and that the inmate was unharmed. The grlevor stood at the bars along the guards’ corridor and watched while the inmate freed himself and dressed. Thereafter, the other inmates “laughed and snickered” until the grievor told them they had had their fun and should “knock it off”. Unfortunately, while the young inmate was unharmed, he had been terrified by the attack and formed the view, quite reasonably in our opinion, that the grievor didn’t take his plight seriously. Having decided that it was all a joke, the grievor made no entry in his logbook, nor did he file an Occurrence Report. The next day, deeply concerned that the attack would be repeated that night, the inmate requested an interview with the Staff Sergeant and asked to be moved out of the cellblock. It was then that management learned oftheincident and that the grievor hadnot left any written record of the events. Following an investigation, the grievor was suspended for four days without pay because he “did fail to assist an inmate who was in danger of suffering serious harm from other inmates, and you did also fail to inform your shift supervisor of the incident and left no written record of any kind”. We find that the grievor did not go to the aid of the inmate, and that there was indeed a danger of the inmate suffering serious harm from other inmates. The primary responsibility of a correctional officer is the safe custody of inmates. There are two aspects to this responsibility I 4 --ensuring that the inmates remain in custody, and ensuring that the inmates are safe during custody. While the grievor was honest in his appreciation of the situation as a practical joke (and this Board was impressed with the sincerity of the grievor, and his candor during the investigation of the incident and in his testimony before us), his appreciation was not a reasonable one. A reasonable person in the grievor’s situation would have gone to the aid of the inmate. The grievor could have easily called for help from other correctional officers--there was one posted just outside the door, some twenty feet from where he stood and watched the inmate; or he could have used the alarm. He should have summoned help and then entered the day space to untie the young inmate. Aswell, it is not denied that the grievor failed to inform his shift supervisor of the incident and he left no written record of any kind. Yet, the grievor is an experienced officer, who has been trained to handle situations which arise. Standing Order No. 8, issued by the Superintendent of the Jail, provides in paragraph 14 Officers will report to the Superintendent or Shift Supervisor anything unusual going on during his course of duty. Occurrence Reports are available in the duty office and must be used at all times where there has been a breach of security or a threat to security made by an inmate.. Clearly this was an an “unusual” event. It simply cannot be argued that finding an inmate trussed and undressed is part of the ordinary course of affairs. Not only is it unusual, but it is obviously a potentially dangerous situation. The grievor may have had a rape on his hands. Management had ^ c 5 to be told of the events so that an investigation could be carried out. Perhaps misconduct charges were warranted against those involved in the attack. Furthermore, in September 1982, Superintendent Doan had issued a memorandum, to which the grievor and all his colleagues affixed their signatures, in which it was made clear that “Arm wrestling and horseplay will not be allowed at any time”. This kind of incident may be used to cover activity elsewhere, such as an escape attempt, by distracting the correctional officer. If inmates are allowed with impunity to attack other inmates in this fashion, there is a loss of control by the institution over the inmates. And it is a serious problem if inmates feel that they are not safe from other inmates. In short, the situation involved here was a “threat to security”, which ought to be perceived by a reasonable correctional officer, and about which management of the ,institution should know. The Standing Order makes it clear that incidents like this should be reported to the Shift Supervisor. Obviously the officer ought to file an Occurrence Report. Standing Order No. 42 deals with the maintenance of logbooks, and provides in paragraph 4: The employees shall record all important occurrences... And this was an “important” occurrence. A young inmate had been immobilized and undressed. At our hearing, Mr. Luczay suggested that this was of the same significance as a bird flying in the window. We don’t accept ~the suggested similarity. A reasonable person in the grievor’s situation would have understood the importance of the incident. It should have been recorded in the logbook. 6 In sum, we find that the grounds for the discipline.have been proven’by the Ministry. The issue then becomes the appropriateness of the penalty imposed. The grievor’s record discloses a counselling in November 1982 for losing his temper during an argument with an inmate, and inviting the inmate to come out into the guards’ corridor alone; a counselling in May I983 for provoking an inmate by calling him names in front of others; and a counselling in November 1983 for leaving his post without making the required entries in the logbook. Bearing this record in mind, together with the seriousness of the incident involved here and the need to ensure that the grievor and others respond properly to such an occurrence ln the future, we find that the four-day suspension was just in all the circumstances. For these reasons, we dismiss the grievance. Done at London, Ontario, this 23rd day of November 1984. S.-J. Dunkley, Member h /$&j&&G A. G. Sfapleton, Member