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HomeMy WebLinkAbout1987-2412.Bishop.88-07-12‘AFl,O EMPLOY~S DE L4 COURONNE ,WNEMPLOYEES DEL’ONTARIO GRIEVANCE C$NVvlISSION DE SEllLEMENT REGLEMENT 3ARD DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEKENT BOARD Between: Before: .For the Grievor: For the Employer: OPSEU (M.E. Bishop) and The Crown in Right of.Ontario (Ministry of Correctional Services) 3. Forbes-Roberts Vice-Chairman H. O'Reagan Member L. Turtle Member R.R. Wells Counsel Gowling and Henderson Barristers and Solicitors J.F. Benedict Manager Staff Relations & Compensation .Ministry of Correctional Services Grievor Employer Hearing: May 24, 1988 Tke instant grievance results from a disc:plinary response handed out to a Correctional Officer 2 employed at the Hamilton-Wentworth Detention Centre ("the Institution"). The grievor, Mr. Robert Cole was suspended for three (3) days without pay. llnder the grievor's care and control an inmate - was temporarily released from tke Institution to attend at a local hospital for medical attention. In the course of that visit the inmate escaped. The majority of the facts are either not in dispute, or through failure of memory can be neither confirmed nor denied. The sole issue before this. Board is quantum of penalty. The undisputed facts are as follows. The grievor is a Correctional Officer 2 ("C.O.2") employed at the Institution. Ate the ‘time of then incident he had approximately six and one-half (6 l/2) years seniority and an unblemished record. The Institution is a maximum security .facility containing almost exclusively remand inmates. This means that the inmates are waiting trial or sentencing for crimes ranglng from unpaid traffic fines to murder. C.0.2'~ are responsible for the care and control of the Institution's inmates. All remand inmates l are classified as a maximum security risk. Consequently when they are transported outside the Institution for medical, . - 2 - dental, etc., appointments it is pa.~:t of Standing Orders that they at al: times travel in leg irons & handcuffs, or at the very least he at all times secured by one (1) of these two (2) pieces of "security equipment." On Cctoher 7, 1981 the grievor w;ls charged with the responsibility of accOmpanying inmate K on a trip to the hospital for, as it turned nut, an allegedly injured leg which reqrr:red physiotherapy. To allow such an escort~ed temporary release of a? inmate the Institution's Medical unit generates a form c:nn.flrmi~g the Inmate's appointment time and the lncatlon. It is the9 up to the appropriate shift Supervisor to "O.K." the temporary release, assign an escorting C.O. 2, acd more imnortantlv 1 assig> a security classification to the inmate. The form facl:itating the visit :a entitled Acceptance of MedIcal Temgnrary Absence Conditions. In a section entitled Additiona? Conditions inmate K's form stipulates "Leg irocs and cuffs. 0.n.e on at all times." This notation was made by the grievor's~ Shift Supervjsnr. The form was sjgned by the.Shift Supervisor, the grievor and inmate K. The grievor was advised by telephone of his chaperon assignment. His Shift Supervisor did not verbally communicate the ,restraint instructions vis a vis inmate K. Nor did he communicate a rumou,r that inmate K had previously escaped custody and was known as a "runner." The Supervisor's reasons for falling t‘o communicate this informdtion were two fold. - 3 - First, he did not feel that it was qece~ary. Second, at the time of the rumoured first escape inmate K was under the jurisdiction of the Young Offenders Act. The Supervisor thought the provisions of that Act forbade him by Jaw from communicating that inmate K had been incarcerated, BecaUSe inmate K was on crutches the grievor could only use the hand cuffs as a method of restraint. As part of inmate K's ther,apy he was put In a metal chair and lowered into a whirlpool. For a reasnr?. which was never.made clea? the grievor removed inmate K's handcuffs prior to the inmate helng lowered Into the hath. He was thus without any restraints, Following his treatment he was removed from the bath ard proceeded. tn dress. The water in the Whirlpool apparently had mlracUlOUs healing power. It improved inmate K's affliction so dramatically that he wasp ahle to sprint down the hall, through three doors and out onto the street. The grievor gave hot pursuit but lost him on the streets of Hamilton. Being equipped with a two (2) way radio the grievor immediately notified the Detention Centre of the situation. The .Hamilton;Wentworth police assisted the grievor in a fruitless search for inmate K. From-the police the grievor learned of inmate K's previous history of escape. Some two (2) hours later the police were successful in apprehending him. The grievor agreed that he had on numerous occasions escorted inmates on hospital visits, all other trips being without mishap. - 4 - > As ahove noted, as a result nf.~.inmate K's escape the grievor was assessed a three (3) day suspension. Several "Standing Orders" were put into evidence. It was apparent from the evidence of the Employer's witnesses that these "Orders" transcend the hounds of mere guidelines and constitute directives, The grievor admitted being given a copy of the Standing Orders. The relevant portions are as follows. In cases of' inmates‘ community hospital vi.sits: 2.3 The Shift Supervisor is responsible for advising the escort officer as to the appropriate equipment/' precautions to be applied. The written instruc- tions will be given both orally and in writing. The written instructions will he in the form of an entry in the Hospital Log Rook written in red ink stating the date, time, inmate's full name and institution number, included in the entry will be pertinent details of security precautions a& : inmate history necessary for the escort officer to effectively assume responsibility. (emphasis added) . . . 2.10 The level of security required is to be expressly noted on documents accompanying the inmate to the hospital. See Standing Order Escorts C-67, Sec. 3. . . . 3.3 The security level as designated by the Shift Supervisor (2.3 above) must be followed by escorting officer(s)... . . . - 5 - 3.8.12 In all circumstances where hospital duty is re- quired the Shift Supervisor will determine the officers detailed for hospital duty are suitable for the assignment, bearing in mind such consl- deration as the physique of the inmate, the charges against him, the sentence he is serving, and any other relevant matters. Remember, inmates~ may feign illness to gain hospital admission in order to facilitate escape. BE ALERT! (emphasis not added) It is ironic that Standing Order 3.8.12 contemplates precisely the circumstances of inmate K's escape. Indeed the G.S.R.'s jurfsgrudence documents the popularity of hospitals as inmates' escape locations. The Employer argued that in light of the circumstances and the severity of the offence, a three (3) day suspension was just and reasonahle.- The Shift Supervisor's ,written instructions were crystal clear and the grievor simply chose not to follow them. It was argued that three (3) days easily fell within the range of reasonable penalties and therefore that this Board ought not to interfere with it. Union counsel argued that the Employer had not come to the hearing with clean hands. The Union accepted that the Standing Orders were not merely guidelines but rather directives dictating certain standards of conduct. While it was admitted that the grievor had breached Standing Order 3.3 (above), it was argued that the Employer was equally guilty of breaching Standing Order 2.3 (above). The Shift Supervisor had failed to - 6 - orallv communicate the instructions regarding the application of one or both of the leg irons and handcuffs. The Supervisor had also failed to communicate inmate K's rumoured previous history of escape. It was argued that if the grievor had to comply strictly with Standing Orders, then so did the Employer. The latter's failure to strictly comply with Standing Order 2.3 severe:~y mi:igz,tec? the circumstances of the grievor'? failure to comply - wi'th Standing Order 3.3, and ought to similarly mitigate the penalty assessed. 1t was suggested that in Iight of the !Smplnyer'.s procedural shortcoming a written warning would be a more appropriate penalty. Momeztariiy leiiving aslee the issue of the oral communication of security Instructions, we note the following portlon ~of Standing Order 2.3. . . . The written instructions will be in the form of an entry in the Hospital Log Book... Included in the entry will be pertinent details of security precautfons and inmate'historv necessary for the 7. (emphasis added) Surely it was not only relevant and prudent but reauired that grievor be advlsed of inmate K's proclivity for escaping. FOI- what other purpose would the Shift Supervisor be directed to note an Inmat$'s history? This was not done in the present 5 - 7 - :: case. Even more disturbing is the reason why it was not done. The Supervisor believed that something in the young Offender's Act prohibited him from revealing that inmate K had been in custody before. The Act contains no such prohibition. We find it unconscionable that the very persons charged at least in part with administering the Act do not know what it says, The Employer also failed in respect of its obligation to verbally instruct the grievor to,apply the restraining devices. - We view this as basically a matter of form rather than silbstance, and not of particular importance. The written instructions, contained in the Temporary Absence Form were very Clear and the grievor agreed that he was aware of and understood them,, All of whjch brjngs us to the bottom line of the appropriate quantum of penalty. What the grievor did was extremely serious. In choosing to ignore his Supervisor's clear written instructions he potentially put the public at great risk. The grievor removed the handcuffs ~because. he did not know that inmate K had a history of escape. What the grievor did know was that he was under strict orders to apply either handcuffs or leg irons or both at all times. The grievor did not do this. In the past, for virtually the identical offence, panels Of the Grievance Settlement Board have uniformly imposed fairly substantial discipline ranging from twenty (20) days to three ” 2 - 0 - ; 5 (3) months. This is obviously in ,,recognition of the severity of'the offence. Because of its part in this piece, had the Employer imposed a similarly heavy penalty this Board might have beep Inclined to interfere with it. But the Employer did not. It duly considered the grievor's excellent record and imposed a three (3) day penalty, amongst the most lenient of possible disciplinary responses tn an extremely Se?ioi.is offence. This Board finds that, in the circumstances the penalty was justified. and within a reasonable range fo.? the misconduct. The grievance is hereby dismissed. Pated~at Toronto this 12th day of .July , 1923s $I@!---, .J. Forbes-Roberts, Vice-Chairman H. O'Regan; Member ir L. Turtle, Member -