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HomeMy WebLinkAbout1985-0221.Nerad.87-10-06BETWEEN: File # 0?21/85 IN THE MATTER OF AN ARBITRATION Under :.: ,t.,_ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before ;...~-- . . ..i _ THE GRIEVANCE SETTLEMENT BOARD OPSEU (Jaromir Nerad) - and - The Crown in Right of Ontario (Ministry of Correctional Services) BEFORE: FOR THE GRIEVOR: FOR THE EMPLOYER: HEARINGS: R.J. RoberKs Vice Chairman F. Taylor Member A.G. Stapleton Member C. Murray Grievance Officer Ontario Public Service Employees Union D.. Milic Staff Relations Officer Human Resources Management Ministry of@rrectional Services ~? February 20 and July 14, 1987 DECISION This is a discipline case. The .grievor, who was a Correctional Officer at the Peterborough Jail, received a five- day suspension for sleeping on the job. For reasons which .~. follow, the grievance is allowed in part and a one-day suspension . . is substituted for the original discipline. The evidence disclosed that the Peterborough Jail was-a maximum security institution for the Peterborough area. It -housed inmates who faced charges varying from traffic offenses to murder. Af,tr+sentencing, the inmates generally were classified according to their background and type of crime and then sent to other institutions. At the time of the grievance, there were cells for 46 male inmates. The actual inmate count was 51; with 5 inmates using as their sleeping quarters the recreation room on the second floor of the institution. The incident leading to the discipline in this case occurred at about 6.~20 a.m. on February 7, 1985. The grievor was just completing a twelve-hour- shift extending from 7:00 p.m. on February 6 to 7:00 a.m. on.February 7. At the time, the grievor was one of three Correctional Officers.pn duty. The only other staff member in the jail was the Shift Supervisor, Sergeant Johnson. The grievor was assigned to the second floor. . ..The --other two Correctional Officers, Mr. M. Cuikeen and Mr. T. Arnott, were assigned to the first~floor. The routine which was followed by Correctional Officers after the inmates were locked up involved checking each cell every thirty minutes. This function would be performed by two Correctional Officers working together. One officer would enter the day room in order to check each cell and the other officer would act as a backup;standing outside the day room. In between these rounds, the Correction Officersnormally would sit at a desk provided for them in' the area for which they were responsible. Such a desk was provided .for the officer assigned to the second floor. It was management's general expectation that the second floor officer would be seated at this desk unless he were performing rounds or had entered the nurse's office on the second floor in order to use the washroom. This was the only washroom which was available for the use of a Correctional Officer in this area. Mr. Arnott testified that at 6:13 a.m. on February 7, the grievor had just completed acting as backup for him inmaking one of his rounds. He left the grievor, presumably to return to the second~.'floor, and headed toward the female Unit to make a clock punch there. When he arrived at this unit,-Mr. Arnott stated, he noticed Sergeant Johnson opening the door for Mr. J. Raper, the Deputy Superintendent. It seemed that Mr; Raper had arrived to .w I ; 3 make an off-hours inspection, which was one of the requirements of the superintendent or his designate. Mr. Raper testified that after speaking briefly with Sergeant Johnson he inspected two corridors on the first floor .i and then went upstairs to inspect the corridors on the second floor. He noticed that the grievor was not at his desk. Peering into the nurse's office, he saw the grievor sitting in a chair beside the nurse's desk,with his eyes closed.. Mr. Raper stated that he stood there for about a minute or so 'and the grievor did not react. He then went down the stairs and summoned Mr. Culkeen to act as a witness to the fact thatthe grievor was sleeping. Mr. Raper further testified that when he observed the grievor, he was leaned back in the chair with his head back and his eyes closed. The lights in the nurse's office were out but there was sufficient light coming in through the window from the yard and the hallway for Mr. Raper to see him very clearly. .At the time he mahe this observation, Mr. Raper stated, he. was only four to five feet away from the ~grievor. When he returned to the doorway with Mr. Culkeen, Mr., Raper testified, the grievor was in the same position as before. But at this moment, the grievor opened his eyes and started to rub them. ,Mr. Raper turned and tient back downstairs, with Mr. 4 Culkeen following. He remarked to ~Mr. Culkeen as they went downstairs that then grievor was sleeping a minute ago. Mr. Culkeen, who indicated that he was the grievor's steward, testified that he watched Mr. Raper begin to go up the stairs. Mr. Culkeen then walked toward his desk, turned and went back toward number2 corridor. It was at this point, he stated, that Mr. Raper came back down the stairs and motioned for him to following' him upstairs. This whole sequence of events, Mr. Culkeen estimated, would have occurred within the space of a few seconds .' ~.~~~- He confirmed Mr. Raper's. testimony that when the two of them arrived at the door to the purse's station the ~grievor was sitting in the chair rubbing his eyes. Mr. Arnott gave--testimony tending t0.confir-m Mr. Culkeen's estimate of the amount'of time that Mr. Raper was upstairs before returning and summoning Mr. Culkeen to accompany him. He said' that Mr: Raper walked up the stairs. It sge.med that four to five seconds passed. Then he turned ~around and came three quarters of the way down and signaled Mr. Culkeen to follow him upstairs. "' .The grievor testified that at about 6:15 a.m.. he finished assisting Mr. Arriott with his rounds and returned upstairs. He then went to the nurse's office to use the'..bathroom. '.After that, he washed his hands and sat down in the chair in the nurse's _ ,. : 5 office. It was the grievor's estimate that it would have taken about two minutes to do all that. He said that by this. time his eyes were feeling "pretty sore" because he had been up all night and was nearing the end of a twelve hour shift. He closed his ..eyes to rest them. The next thing .he knew, the grievor stated, .he saw Mr. Raper and Mr. Culkeen looking at him. It seemed to him that this was less than a minute after he sat down. He said that to the.best of his knowledge he was not asleep. Just as' the grievor's shift was ending, Mr. Raper advised .him that he would be putting him on report. Mr. Raper then made out an Occurrence Rkport for Mr. A. ~Johnson, the superintendent of the jail. The report stated, inter alia, that he had observed the grievor sleeping for several minutes. Mr. Johnson testified that he reviewed this report and discussed it with Mr. Raper. He then requested and received a report from Mr. Culkeen. After this, he decided to have a disciplinary meeting with the grievor to afford him an opportunity to "'answer the allegations against him. This meeting was held an March 13, 1985. On March 15, Mr. Johnson sent to the grievor a letter reading, inpertinent part, as follows: , Dear'Mr. Nerad~: On March 13, 1985, YOU met with the undersigned in order to respond to the following allegations: 6 a) That on February 7, 2985, during the 1900 to 0700. hour shift you left your assigned post without authority, and further, b) That on February 7, 1985, at approximately 0620 hours you were found asleep on duty. . . . With regard to the second allegation you acknowledged sitting in the nurses office with the lights out. YOU stated you had used the washroom and sat down Andy closed your Keyes in.an attempt to. alleviate a headache and soreness in your eyes. While you insisted that you were not asleep, but merely resting, there is no doubt in my mind that you were asleep. As stated during the meeting Mr. Raper, Deputy Superintendent observed you through the open door sitting in the chair with your eyes closed. You did not waken in spite of his close presence and it was not until Mr. Raper returned with,, another officer, Mr. M. Culkeen, that you finally wakened and responded to their presence. . . . In relation to the second allegation, it is obvious that your actions seriously jeopardized the security of 5 the.institutlon, the safety of correctional staff and the safety of those inmates under your care. It is expected that as an experienced correctional officer., you should be well aware of the importance in remaining. alert at all times, in order. to effectively deal with unexpected situations, should they arise. I have reviewed the facts in this situation and have taken into consideration. your positive work record within the Ministry. Although a more severe disciplinary penalty was considered it is, my decision. to remove-you from duty without pay for a total of five days (forty hours), in accordance with Section 22(2) of the Public Service Act. Any future incident of this nature may result in your dismissal from the Service. Mr. W. Raper has received a copy oft this letter and will advise you of the dates of your removal from duty. Yours truly, A Johnson, Superintendent. . ~. ,~.~ 7 The grievor was suspended for a. period of five days., On March 25, the grievor filed the grievance leading to the present .~ proceeding. At the hearing, counsel-for the Ministry stressed that, -given the nature of the .environment in which the grievor was employed, a five-day suspension was within the range of reasonable disciplinary responses to the grievor'.s misconduct. The grievor realized,'he stated, that Correctional Officers were-:.- expected to be alert, observant and vigilant for the sake of security. Otherwise, emergencies such as attempted suicides, escapes, assaults, fires or even riots might occur. The requirement to be alert and vigilant was underlined, he stated, inthe Ministry of Correctional Services Act and the Regulations. The attention of the Board was directed to a number of'decisions, .,.. including Re~.Canadian Union of Public Employees, Local 872 and Collegiate Institute Board of the City of Cornwall (19651, 16 L.A.C. 275 (Lane) (one month suspension for sleeping on the job); and Re International Association of Machinists, Airline Lodge 714 and Trans-Canada Airlines (1964) 14 L.A.C. 424 (Thomas) lreinstatement without compensation for sleeping. on the job). On the other hand, counsel for the Union suggested that the evidence did not sustain any contention that the grievor had fallen asleep. It was pointed out that on a;l-1 of the evidence, the grievor had been upstairs for only a few minutes before he a was found by Mr. Raper. What Mr. Raper observed, it was contended, was the grievor rezting his eyes after having been on shift for almost twelve hours. It was .noted that the lights in the hallway on the second floor created a glare a.nd that the grievor's eyes were sore. In light of the doubt as to whether the grievor had, in fact, fallen asleep, it was submitted, no discipline should have been imposed. Having weighed these submissions, it is the conclusionof. the Board that there was cause for discipline. There seems to be little doubt that the grievor dozed off, at least momentarily. While the weight'of,the evidence is that Mr. Raper observed the. grievor for several seconds and not over a minute, there is no doubt that the grievor was oblivious to Mr. Raper's presence during his initial observation. The grievor himself stated that the first thing that he was aware of after having closed his eyes was ~being observed by Mr. Raper and Mr..Culkeen together. This testimony is most consistent with his having fallen as'leep. But at the same time, it is the view of the Board that the five-day suspension which was .imposed upon the grievor was too harsh. A more appropriate penalty would have been a one-day suspension. The Board was impressed by the grievor. He gave his .testimony in a, straightforward and honest fashion. Both Mr. Johnson and Mr. Raper testified that he was an exemplary Correctional'officer both before and.after this incident. There . ;. 9 was no prior disciplinary record. Moreover, the evidence showed that the grievor never had the intention of going to sleep. There was no carefully planned sleeping accommodation. The grievor did not attempt to hide. He simply put himself in a position where falling asleep was a distinct possibility and :. unfortunately he did doze off for a very short time. It was only in this sense that the grievor violated his'duty to remain alert at all times. We think that a one-day suspension would have been more than sufficient to bring home to the grievor the need to avoid plac~ing himself in situations where this possibility might arise. And a one-day suspension would not have been inconsistent with the reasoning expressed in another case cited by the Ministry,~ Re Municipality of Metropolitan Toronto an&Canadian Union of public Employees, Local 43 (1981~ji-.29 L.A.C. (2d) 169 (Samuels). The grievance is allowed in part. The grievor is entitled _. to compensation for' wages lost over and above a one-day suspension. The Board will remain seized pending implementation of the terms of this award. DATED at London, Ontario, this 6th