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HomeMy WebLinkAbout2013-0559.Cashion.14-04-09 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-0559 UNION#2013-0411-0016 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cashion) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Jonathan Rabinovitch Ministry of Government Services Legal Services Branch Counsel Gary Wylie Ministry of Government Services Centre for Employee Relations Employee Relations Advisor CONFERENCE CALL HEARING December 20, 2013 November 5, 2013 and February 13, 2014 - 2 - Decision [1] Stephen Cashion, Correctional Officer at Ottawa Carleton Detention Centre was suspended for five days for excessive use of force. He filed a grievance that alleged the discipline was without just cause. [2] The Letter of Suspension, dated March 4, 2013, stated that the following allegations were investigated and substantiated: o That you were in contravention of Ministry policies and procedures when you used excessive force when with your open right hand, you deliberately pushed/poked the inmate in the right arm as the inmate was about to exit through the segregation unit doorway. o That you failed to submit an accurate report of the occurrences. Your report did not contain information of your use of force. o That you conducted yourself in a manner that does not meet the standards of professional behavior for Correctional Officers, Ministry Representatives or Ontario Public Service employees as outlined in the Ministry’s Statement of Ethical Principles and our Standing Orders. [3] Rather than undertake a litigation process that could easily have taken in excess of a dozen days, the parties agreed to a truncated process for the adjudication of this matter. It was agreed that Article 22.16 of the Collective Agreement would apply and that two days of hearing would be scheduled. On the first day the Employer gave a fulsome opening statement and disclosed most of the relevant documents. The disclosure included: • Allegation Letter • Suspension Letter • Occurrence Reports – from various staff members • Local Investigation Report • The Inmate’s Report to Police • Minutes of Allegation Meetings • Video of the Incident • CISU Report – and audio tapes of the interviews • Various Ministry Policies – Defensive Tactics Diffusion of Hostility - Use of Force - Inmate Management & Discipline Misconduct - Statement of Ethical Principles - Inmate Management – Condition of Confinement - - 3 - [4] On the first day of hearing the parties also identified those individuals who would give evidence. It was agreed that the witnesses would exchange will-say statements on the same day prior to the second day of hearing. It was understood that those witnesses – unless advised otherwise – would be made available for brief cross-examination on the second day of hearing. [5] Prior to the second day of hearing, the Union informed the Employer that it was not necessary to have William Last, Superintendent of OCDC attend at the hearing as it was content that he not be cross-examined. [6] When the second day of hearing began, each party and the Board had received and fully reviewed all of the disclosure and will-says. [7] As noted above, the Employer provided a will-say statement from the Superintendent and Greg Ireland, Provincial Co-Ordinator for Use of Force Programs, Ontario Correctional Services College. The Union provided a will say statement from the grievor. Both Mr. Ireland and Mr. Cashion were cross-examined. [8] As is usual for matters litigated under Article 22.16, it was agreed that this decision would be relatively short. However, the parties asked that some rationale for the decision be set out. [9] It is not my intention to review the facts of this matter. It is sufficient to say that I undertook a thorough review of every document and the video of the incident. In particular I found the video, the occurrence reports and the interviews held with staff during the CSIU investigation of assistance. As was suggested by counsel, I viewed the video on a frame by frame basis. [10] The incident for which the grievor was disciplined was at the beginning of a larger confrontation between an inmate and Correctional Officers. It was not Mr. Cashion who acted inappropriately during the altercation that followed. Indeed, it was found that his behavior during this time accorded with policy and procedures. The activity for which the grievor received a five day suspension occurred at the outset of the incident. [11] Mr. Ireland’s will-say reviewed the proper methods of inmate contact and his view of why the grievor’s actions as seen on the video do not comply. In cross-examination Mr. Ireland conceded that situations such as the one at issue can move and change very quickly. He also agreed that there is nothing inappropriate about a CO stopping and inmate and attempting to counsel him about his behavior. He noted that the grievor said he utilized a C-clamp grip with the inmate and said that it appeared that the grievor’s hand was open as it moved toward the inmate. However, he stated that COs are taught to - 4 - use a C-Clamp grip when approaching an inmate from behind. He thought that the grievor was too close to the inmate resulting in an inability to see his hands and feet. Further, it was suggested that if the grievor wanted to de-escalate the situation, the pointing of a finger is not amongst the tools utilized to settle an evolving situation. [12] In his will-say statement, the grievor said that the inmate had been verbally abusing the COs and threatening to hurt them. He said that the OM had been approached and asked to deny the inmate the right to have a visit because of his demeanor earlier in the day. This request was denied according to the grievor. According to his will-say statement, as a result of the continuing verbal abuse from the inmate he: “…..attempted to stop him by placing a “c” clamp on his right arm. As I reached to place the “c” clamp on his right arm, the inmate flinched back to avoid my grasp. At this point, the inmate was facing me and I felt that I had his full attention. I told him firmly that he would need to calm down and stop verbally abusing and threatening [us] or he would be placed back in his cell and denied his visit.” [13] He went on to say that the inmate just glared at him and so he thought it was reasonable to continue to take the inmate for his visit. However, the inmate turned away from him and then became involved in an altercation with another CO. [14] In his cross-examination the grievor was asked about his failure to state in any of his three occurence reports that the OM was asked to deny the inmate the visit. He conceded that this was an important detail and had no explanation about why this detail was omitted other than because he was not relieved from duty to write his first report. He also maintained that he had the inmate in a “c” clamp for a few seconds. He acknowledged that usually this is done from behind for the purposes of escorting an inmate but it was his intention to settle the inmate. He said that he told the inmate that if he stopped his threatening behavior he would be allowed his visit – that all he had to do was walk quietly down the hallway. When it was pointed out that this discussion appears in none of his occurrence reports nor in his will-say he said that he recalled it when speaking with his union representative. [15] The grievor stated that he pointed his finger at the inmate “to focus his attention”. He was also questioned about other inconsistencies between the video and his various occurrence reports and statements to the CISU investigators. He maintained that the inmate bumped into the other CO, heard his co-worker complain that the inmate spit on him. He also testified that he saw the inmate clench his fist, taking a stance as if he was about the throw a punch at the other CO. - 5 - [16] The Employer, in its submissions, reminded the Board that a finding of excessive use of force is not contingent upon an inflicted injury. It was urged that the grievor’s version of events was not consistent. His evidence shifted and varied between his three occurrence reports, his comments to CISU investigators and his evidence before this Board. Further, most of his statements – irrespective of which version of events one accepts – are entirely inconsistent with the video. Because of his actions with the inmate and his inaccurate occurrence reports a five day suspension is appropriate, according to the Employer. [17] The Union maintained that hindsight is always twenty-twenty and that it is now easy to say what actions might have been better taken. However, there is nothing that the grievor did to substantiate a five-day suspension. It was suggested that there is no evidence to substantiate that the OM was not notified of the situation. The grievor’s uncontradicted evidence in this regard should be accepted. In any event, the grievor was justifiably concerned that the inmate was going through the door without him and continually abusive. It was appropriate to stop the inmate and ensure that he was compliant. The grievor’s actions were understandable and not contrary to policy or procedure. Indeed, the grievor’s conduct was not abusive and therefore should attract no penalty whatsoever. In the alternative, if his actions were wrong, there are a number of mitigating factors, such as the grievor’s length of service and lack of previous discipline that should bring about a reduction in the penalty. [18] It should be noted that the inmate was a young man who is at least a head taller than any of the three COs attending him and probably close to seventy-five pounds heavier. DECISION [19] As noted above, there was an issue arising from the evidence at the hearing regarding whether the grievor informed the OM prior to this incident that the inmate should not be allowed to have a visit. The Union suggested that the grievor’s evidence was uncontradicted and should be accepted. Upon review of various exhibits the Operating Manager in attendance that day wrote in one of his reports that prior to the inmate being taken out of his cell, he was “not aware of any immediate concerns regarding his behavior.” [20] After an extensive review of the video and all of the considerable documents, I do not accept the grievor’s version of events. Indeed, I agree with the Employer’s conclusion that the grievor inappropriately pushed/poked the inmate. Whether the grievor’s hand was open or somewhat “c” shaped is not as clear as it might be from the video – however, it is clear that a “c” clamp is to be used when an officer is behind an inmate for the purposes of leading. The grievor stated, at various times, that his “c” clamp grip on the inmate lasted about two seconds. I am of the view that the video reveals that the grievor - 6 - never had a “grip” on the inmate. He may have attempted to do so –although I am not convinced of that - but what occurred was a poke or a slight push. [21] The grievor testified and wrote in various places that he was attempting to settle the inmate. Simply put, that explanation is not congruent with the evidence. Mr. Cashion said that he used a pointed finger to “focus” the inmate’s attention. Again, it does not look like that from an extensive frame by frame review of the video. It appears as if the grievor is speaking harshly to the inmate and attempting to intimidate the inmate, not settle him. [22] Mr. Cashion said that his actions were taken because the inmate was about to go to the visiting area without the COs. Again, that stated concern is not substantiated by the video. Another CO is on the other side of the inmate, partially blocking the door. It would not have been possible for the inmate to merely stroll off toward the visiting area leaving the COs behind. [23] This situation might have brought about a lesser penalty if the matter did not further escalate. But it did and the Employer was of the view that the escalation was – at least in part – due to the grievor’s actions. I understand that view. [24] The Union urged that if this Board determines that there was just cause to discipline the grievor, it should be taken into account that he had no discipline on his file at the time. I accept that often the lack of a disciplinary record will mitigate the amount of penalty when just cause has been determined. However, given the totality of the incident itself and the grievor’s lack of forthrightness during the investigation up to and including the hearing, I am left with no alternative but to uphold the five-day suspension. [25] For those reasons, the grievance is dismissed. There are two further grievances of which I am seized. I ask counsel to contact the Board to set up a conference call to discuss the process for the litigation of these matters. Dated at Toronto, Ontario this 9th day of April 2014. Felicity D. Briggs, Vice-Chair