HomeMy WebLinkAbout1988-0469.Taylor-Baptiste.92-04-15 ', · ONTARIO EMPLO Y~$ DE LA COURONNE
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~' GRIEVANCE C,OMMISSiON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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469/88
ZN ~ ~TTER OF ~ ~ZT~TION
Under
Befo~e
~E GR~EV~CE 8ETT~~ BO~
BE~EN
OPS~ (Taylor-Baptiste)
Gr~evor
The Crown in Right of Ontario
(Minist~ of Correctional Se~ices)
~ployer
'BEFOg= N. Dissanayake Vice~Chai~erson
T. Browes-Bugden Me.er
I. Cowan Me.er
FOR THE J. Hayes
GRIEVOR Counsel
Cavalluzzo, Hayes & Shilt0n
Barristers & Solicitors
FORT HE J. Benedict
EMPLOYER Manager, Staff Relations and Compensation
Ministry of Correctional Services
HEARING February 28, 1989
Septe~lber 26, 1989
July 6, 11, 1990
DECISION
Mr. A.H.R. Taylor-Baptiste, a correctional officer at the
Metropolitan Toronto West Detention Centre has grieved as
follows:
I grieve that management at the Metropolitan
Toronto West Detention Centre are not making
reasonable provisions for my health and safety,
during my hours of employment in that; they endanger
my health and safety with an inadequate meal service
procedure. Subject matter discussed with S.A.S.
Pickering & D. Superindent Mackinnon, May 03, 1988.
He seeks by way of relief':
That this procedure be replaced with one that
meets both staff safety and management's needs.
That I be fully compensated for all monies and time
lost to the resolvement of this grievance.
The Board heard extensive evidence on the procedure used.
at the institution to feed the inmates.. In addition, the
panel took a view of the premises and observed a meal being
served at the institution.
The Metro-Toronto West Detention Centre is a maximum
security institution. Its inmate population consists of adult
male inmates, and male and female young offenders, either
convicted or facing charges for offenses ranging from very
minor to the most serious offenses like murder. This
grievance concerns the adul~ male area which consists of 7
units. Each 'unit has two sides, left and right, with access
3
from a lobby known as the common area. Two correctional
officers (CO's) are assigned to each unit,~ which houses
approximately 60 inmates, 30 on each side.
Each side of a unit consists of a.day area with 6 metal
picnic tables and wooden benches which are bolted to the
floor, a TV, a radio Speaker. Along the outer wall there are
10'cells and a washroom. The inmates spend the majority of
their d~y in the day area, watching TV, listening to music,
playing cards etc. Three inmates share a ceil, which has.two
bunk beds and a mattress on the floor, a urinal and a sink.-
The same meal procedure is followed at the institution
for breakfast, lunch and dinner. Meals are prepared by a
contractor in the kitchen of the institution, with the
assistance of a number of inmate helpers who are designated
for kitchen duty.' The kitchen staff prepares individual meals
on trays and places them on metal meal carts for the various
units. Once notified that the meal cart for their unit is
ready, one of the CO's from the unit goes down to the kitchen
to pick up the cart and uses the elevator to wheel th~ cart
to the common area of the Unit, where he plugs it in to keep
the meals warm. He then checks the meals to ensure that
.everything is in order. If he finds something wrong, eg. soup
is cold,, steak is burnt or that a special diet is m~ssing, it
is his.duty to inform ~he corporal in charge of the uRit, who
4
would instruct the CO. as to what is to be done. Once the
CO's are satisfied that everything is in order, one officer
would go in to one side of the unit and unlock any~inmates who
are in their cells. Once this is done there would be
approximately 30 inmates in the day area. The cart has a rack
containing 60 metal spoons. The CO divides the spoons into
two halves. One officer hands a spoon through the bars to
each of the inmates, as they come up to the entrance in a
line. The other CO has a list of names of all the inmates on
the particular side and he puts a mark beside the name of each
inmate as he receives a spoon.
Once the spoons are distributed, the door to the day area
is opened and the "inside officer" wheels the meal cart in to
the day area, The door is locked behind him by the other
officer who stands outside the entrance and observes the
activity in the day area. The inside officer places the cart
and himself in a position where he can be clearly seen by the
outside officer. The inside officer designates one or more
inmates to assist in the serving of the meal. The inmates
line up and obtain a dish containing the hot meal of the day,
bread, butter, a~dessert and tea or coffee. While the food
is being served by the designated inmate helpers, the inside
officer watches to ensure that each inmate only gets one meal.
Once an inmate gets his meal he takes i~ to one of the six
picnic tables and begins to eat. They have 30 minutes 'to
5
finish their meal. When one side of the unit is served and
all the inmates begin to eat, the officer pulls the meal cart
out of that side and goes t'o the other side of the unit where
the same procedure is followed. The inmates are unsupervised
while they eat.
At the end of. the meal, the Officer re-ehters that side
with the cart. The inmates stack their plates on the floor,
but hold on to their spoons. With the assistance of the'
inmate helpers, the CO places the empty dishes, cups, etc. on
the cart, and wheels it out. Then the inmates line up and
each inmate hands over his spoon through the bars. One of ~he
CO's again makes a notation on his clip-board as each inmate
hands over'his spoon. Once all the spoons are collected the
meal procedure is complete and the officers move over to the
other side Of the unit and follow the same procedure.
The grievor testified that when he first joined as a CO
in 1982, there was a different meal procedure in effect.
Meals ~ere served while.inmates were still locked up in their
cells. The evidence is that 6 inmates and the union launched
a law suit against this meal procedure, one of the main
complaints being that inmates were required, to eat sitting on
their beds with the plate on..their laps. The management
reviewed the complaint and decided to remedy it. They
increased the number, of picnic tables in the day area to
6
ensure that 30 inmates can eat at the tables. From about 1985
the inmates were thus allowed to eat in the day area, sitting.
at the picnic tables.
The present procedure for serving meals has been in place
since that change in 1985, except for a very brief deviation
on the unit on the first floor. On this fl~or, the bars on
the door to the day area were out off to form a slot. The
'meal tray and the spoon were passed through this slot to
inmates, while both officers remained outside the entrance.
As noted, this deviation lasted only for a brief period.
While the slot on the door still exists, now the first floor
also follows the same procedure a~ all other units.
The grievor's concern in a nutshell is this. According
to him inmates are very sensitive about three things in their
daily life in the correctional centre, namely, their meals,
personal mail and visit periods. If the slightest thing goes
wrong with meals, mail or visits, they get very upset. When
they are upset they usually direct their complaints towards
the CO's, usually in an aggressive manner.
Almost at every meal there are complaints. These
compl-aints can be about a range of things like the quality or
quantity of the food, that the food is cold or that a special
diet had not been provided. The grievor testified that when
7
he is on'inside duty he is qUite concerned~ab°ut being in the
day area.with 30 inmates at meal time. He testified that~each
inmate has a spoon, which can be a potential weapon. His
concern is that if one or more inmates get sufficiently angry,
they can set upon the inside officer and injure him before any
assistance arrives.
The union adduced in evidence log books for unit lA, for
the period Dec'ember 1987 to June 1988. For some reason most
of the problems appear to have taken place in the right side
of unit A. A log book is maintained for each unit. The log
book for unit iA indicates a number ofincidents of complaints
by inmates about m~als. In most cases no threats or
disruptions were involved. ~sually, when there is a complaint
the CO refers, it to the corporal whose duty is to walk around
the various units observing the meal procedure. In most
cases, the complaint gets resolved without incident. However,
there was one incident of an inmate yelling and another where
an inmate threw.a dish. There were no injuries involved in
any of the incidents noted in the log book.
The grievor and another C02 Mr. O. Bachus, brought their
concerns about the meal procedure to the management's
attention. On May 3, 1988 a meeting was held between the CO's
and management re~resented by Ms. D,. MacKinnon (Deputy
Superintendent) and Mr. G.W.' Pickering (Senior Assistant
8
Superintendent). 'The CO's Conveyed~ their concerns about
having to be in the day area with 30 inmates while meals were
being served. They cited an incident where an inmate had
thrown a meal. They wanted to know why the meal procedure had
been changed in 1985 and why meals cannot be served through
the bars, without the necessity of a CO going in to the day
area. The management'stated that the present procedure of
feeding inmates in the day area was adopted because of a law
suit by OPSEU and some inmates. They expressed their view
that the existing meal procedure was sound and that iif the
CO's followed the prescribed procedure the safety risks will
be greatly reduced. Mr. Pickering expressed.his concern that
a misconduct had not been placed against the inmate who threw
his meal.
The evidence indicates that Mr. Bacchus and the grievor
became frustrated when management defended the meal procedure.
One of them made the allegation to the effect that the
management was not in control and that the inmates were
running the institution. Mr. Pickering took exception to this
statement and a heated exchange ensued. At this point Mr..
Bacchus got up and left the meeting and was followed by the
grievor. The grievor testified that they left when it became
obvious that they were not "getting anywhere" because the
management was condoning its p~ocedure and putting the blame
on the COs for not following the procedure.
Shortly after the meeting there was'an incident on the
right side of unit l-A, where the grievor was the inside
officer. This incident was noted in the log book, but
elaborated in greater detail in a subsequent report from the
grievor to the superintendent. That day, dinner was served
to the left side of unit 1-A without incident. However, when
the grievor entered the right, side and· began serving the
meals, four inmates on vegetarian diets started t6 complain
about the colour of the eggs. The grievor referred this
complaint to the corporal on duty, Ms. Young, who happened to
be outside watching. She assured the inmates that there was
nothihg wrong with the eggs. Then some inmates on raw
vegetarian diets complained that in addition to a salad and
two chunks of. cheese, they should have got cottage cheese or
peanut butter. They were also referred to Ms. Young and the
complaints were resolved. Next the vegetarian diets
'complained that their meals .were cold and one inmate
complained that his pork chop was "all fat". Another. inmate
started complaining that his low-calory diet was cold and that
it should not have included potatoes. Finally, another inmate
'started shouting that he had been in the shower and that
someone had taken his meal. The grievor notes in his report
that at this point there was a great deal of shouting, and
.voices were heard calling for '"a riot,, if th~ food was not
replaced. He could not pick out who uttered the word-"riot".
10
The evidence indicates that under Ms. Young's instructions,
some of the food was replaced, some meals were heated up and
the meal was completed without further incident.
Counsel for the union submits that based on his
experience the grievor has two concerns about his health and
safety during meal periods when he is assigned .inside duty.
First, inmates frequently get agitated during meal time and
he finds himself alone in the day area with 30 inmates, each
of whom has a metal spoon, which may be used as a weapon in
an assault. Secondly, the grievor is concerned that in cases
of code alarms that may occur during meal time there is'a long.
response time, because he has to pull out the meal c~rt before
responding to the alarm.
Counsel submits that tkese concerns are not speculative,
but reasonably foreseeable and demonstrable by the evidence.
According to him, the exposure of the grievor to this risk,
constitutes a violation of article 18.1 of the collective
agreement, which reads:
ARTICLE 18 - HEALTH AND SAFETY AND VIDEO DISPLAY
TERMINALS
18.1 The'Employer shall continue to make reasonable
provisions for the safety and health of its
employees during the hours of their
employment. It is agreed that both the
Employer and the Union shall co-operate to the
fullest extent possible-in'the prevention of
accidents and in the reasonable promotion of
safety and health of all employees.
By way of remedy, the union seeks a direction requiring
the employer to implement a meal procedure where meals are
served to inmates through a slot in the bars, with both
officers remaining outside. In this regard, the union called
evidence to show that that is the method used to feed inmates
at the Toronto Don Jail. Alternatively,'counsel suggested
that, if the Board is reluctant to direct a specific meal
procedure, the Board should refer the matter back to the
Employer/.Employee Health and SafetY Committee with directions
%o find an alternate meal procedure and to report back within
'90 days..
Counsel for the employer raised a number of issues in
response. First counsel argued that this grievance is not
arbitrable because it is in fact a policy grievance disguised
in the form of an individual grievance. Secondly, he submits
that by failing to call any expert evidence, the union failed
to satisfy its onus of establishing that the employer'had
failed to .make reasonable precautions for the employees'
health and safety. Counsel submits that the grievance should
be~ismissed because a violation of article 18.1'has not been
made out.
Both counsel referred us to numerous prior decisions of
this Board as well as some awards from the private sector.
12
Since the outcome of each health and safety grievance must
depend on its particular facts, we will not review the
decisions cited to us except to the extent where they contain
relevant general principles.
However, we must first deal with the employer's
preliminary or procedural arguments. On the issue of the form
of the grievance, it is common ground that the collective
agreement provides 'for mutually exclusive policy (or union)
~rievances and individual grievances. See, Re Fox, 572/82
(Draper). Articles 27.2.1 to 27.5 describe the procedure to
.be followed for an individual grievance and articles 27.8.1
to 27.8.3 describe the procedure for a union grievance. An
individual employee cannot file a grievance on behalf of the
other employees in the bargaining unit. The vehicle for that
is a union grievance, which must be signed by the president
or vice-president of the local union.
The grievance before us can only be an individual
grievance since it is signed by the grievor. Does it purport
to grieve on behalf of other correctional officers. We do not
think so. The statement of grievance claims that the employer
· s not making reasonable provisions for "m_~z health and safety
during m_~ hours of employment", and that "... they endanger
my health and safety". We disagree with employer counsel that
a policy cannot be challenged in an individual health and
safety grievance. The key to a proper individual grievance
is that there must be a claim that the grievor's rights have
been affected. Whether this infringement of the right has
resulted from some individual action taken against the grievor
specffically or by some general action taken by the employer
is not relevant as. long as the result is~ that the grievor's
rights have been affected.
Of course, the remedy that is granted in a successful
individual grievance may not be as broad as in a union
grievance. Thus for example in certain circumstances it may
be inappropriate to grant~a remedy of general application in
an individUal grievance. Any remedY ·provided may be
restricted in its application to the particular grie¥or and
the issues raised in the grievance. What' is an appropriate
remedy obviously will have to be dependent on the nature of
the contravention found. If the employer's point is that the
remedy sought by the grievor is inappropriate, that is a
different issue from the arbitrability of the grievance
itself. We find the present grievance itself is arbitrable
as an individual grievance.
We also reject the employer's second position. It is
absurd to suggest that in every health and safety case the
union is 'obliged to call expert testimony. Employer counsel
did not suggest what kind of "expert" the union might have
14
called to show the alleged health and safety risk. While in
some cases, such as where stress related health and safety
risks or technical or scientific issues are .involved, it may
be necessary to call experts to testify, that is not required
in all cases. Whether expert evidence is required depends on
the complexity of the evidence that go to establish a health
and safety risk. This is not such a case. The absence of
expert evidence is not fatal, if the union can prove the
violation through other evidence.
Now we turn to the real issue we have to decide, that is,
has the grievor-established a violation of article 18.17 In
'Re Union GrieVance 70/84 (Samuels) the Board emphasized that
the collective agreement requires only reasonable precautions
and that "there is no obligation to guarantee an employee's
safety against every possible risk, no matter how remote the
possibility that it' will occur". See also, Re Union
Grievance, 335/85 (Roberts) and Re Brlek et al, 1466/87
(Dissanayake).
It is generally conceded that a CO's job is inherently
more hazardous than most other jobs in the Ontario Public
Service. That is a relevant .factor because what is a
reasonable precaution ~for a clerk' working in. a government
office will not be the same for a CO. In the case of a CO,
the Board in Re Union Grievance (Samuels, supra) observed that
15
what constituted a reasonable precaution had_to be assessed
upon an objective review of the relevant circumstances, which
balanced "the safety of the emplOyees against the need for
care and custody of the inmates and the purposes of the
i~stitution".
The grievor's concerns about how long it may take to
respond to an alarm was premised on his belief that the inside
CO officer was required'to wheel out his meal cart before, he
can respond. Mr. Pickering during his evidence assured the
Board and the grievor that there was no such requirement. In
our view this should allay the grievor's concerns in that
regard. That leaves the grievor's concern of being assaulted
or attacked by inmates, while he is mingling with up to '30
inmates'inside the day area during meal periods.
The evidence is abundantly clear that by the very nature
of the job, the grievor is in constant contact with the inmate
population. While this may expose the grievor to risk, the
grievor agreed that that is part of the job. The grievor
finds himself confined in a relatively small area With groups
of inmate~ at various times. He enters the day area. several
times a day (in addition to meal times). On each occasion
another CO watching through the bars from outside. He enters
the day area in this manner on regular patrol every two hours;
to unlock inmates from their cells in the morning; ~to lock
16
them up; to take inmate counts 3 times a day;. and to supervise
inmates during clean up. The grievor agreed that at clean up,
inmates have access to buckets, mops and brooms which
potentially can be used as weapons.. In addition, the grievor
testified that he supervises up to 50 inmates in the gym and
in the outside exercise yard. At this time, inmates have
access to sports equipment such as hockey sticks' and pool
cues, which may be used as weapons. The grievor also finds
himself in the midst of some 25-30 inmates during visiting
periods and chapel. He agreed under cross-examination that
from time to time inmates complain about various things and
that they are usually not polite when they.do so. He also
agreed, that if the inmates choose to attack or assault.him,
that can be done at any of these times, and that the grievor
realized that the risk was always there.'
The grievor was asked why he was so concerned about being
in the midst of 30 inmates during meal time,' when 'it was not
at all unusual for him to' be with even larger numbers of
inmates carrying potentially more dangerous weapons than
spoons. His response was that meal time was different.
Inmates eas$1y get agitated if they perceive something to be
wrong with their meal. According to the grievor, there is a
much greater likelihood of inmates getting hostile during meal
time than at other times.
17
Mr. Picketing testified tha~ when management, decided, as
a result of the law suit, to abandon the old procedure of
feeding inmates while they were locked up in their cells, they
attempted to. come up with a meal procedure which can be
c6nsistently implemented through the institution. From the
management's point of view a consistent procedureis i~portant
because employees must be capable of working in any area of
the institution. Mr. Pickering affirmed the management's
belief that the e~isting meal procedure, which has been in
effect since 1985, posed no unreasonable risk to COs.
Mr. Pickering testified that the management was not in
.fav0ur of the proposed method of serving the food through
slots cut in the' bars. He conceded that the cost involved in
cu~tihg the slots was minimal, and is not a concern. However,'
he pointed out that there were other problems. He felt that
the physical lay-out in the female'unit would not permit meal
cart to be parked outside the entrance. ~He further pointed
out that it is essential to make ~ure that every inmate gets
'his proper meal. sometimes, inmates attempt to take ~ore than
their share or "bully" weaker inmates into giVing up their
meals. This type of activity is discouraged and reduced when
the. CO is inside the day area.
According to Mr. Pickering the major flaw with the
proposed procedure was that it ran counter to the
18
institution's general philosophy of encouraging CO's to
intermingle with inmates at every possible opportunity. He
cited a number of benefits that flow from this approach. He
testified that as a result of intermingling, a rapport and a
relationship ~evelops between officers and.the inmates. He
testified that during this intermingling inmates sometimes
tip-off about concealed contraband or security breaches.
Intermingling also enables COs to get a better sense of the
mood of the inmates. According to him, a system where
officers intermingle with inmates is a "proactive and
preventative" approach which is'far superior to a system that
builds barriers between officers and inmates. Mr. Pickering
al~o testified that the existing system also allows COs to
treat inmates firmly but fairly. In his view, it is a more
dignified way. of feeding inmates than passing food through a
slot cut in the iron bars.
'The Board heard evidence of assistance available, to the
inside officer in'the event of a problem inside the.day area
during meal time. Firstly, the officers haVe access to the
log-books and occurrence reports, which note any unusual
behaviour or incidents. These give the CO's some sense of
what had gone on in the unit. The grievor agreed that he
would not go in to the day area if he got the sense that
inmates were in a hostile mood. There are periodic searches
of the premises and frisk searches of the inmates to detect
19
any concealed weapons or other contraband. The officer
inspects the meals in the common area, and to the best of his
ability, satisfies himself that everything is in order, before
taking~the cart ~nside the day area. Once he is inside, the
second officer's duty is to keep watch from the outside. That
officer carries 'a portable radio which is linked to the
central control~ and to 7 other officers in the male unit who
carry radios. Just outside the entrance, where the outside
officer is watching the meal procedure, there is ~ panic
button, which can be pushed to summon help in case of a
problem inside. There is also a telephone in that same area.
COs have the power to charge inmates who make threats Or.
engage in disruptive conduct, with "miscohducts". If found
guilty, a misconduct can result~in a penalty, including loss
of privileges and confinement to a segregation cell. And of
course, ~n assault or a threat of an assault, may also lead
to criminal charges.
It is now well established that in a health and safety
grievance, the union is not required to prove that there had
been actual injury or harm, in order to establish that
reasonable provisions for the health and safety had not been
provided by the employer. Re Union Grievance 1252/85
(Joliffe).
In Re Union Grievance 826/88 .(Kates) the Board referred
to the need to balance the safety of the employees against the
needs of the institution in adopting appropriat~ measures for
compliance with the collective agreement. Then the Board
observed:
And in our view so long as the employer
maintains the aforesaid process of addressing the
attendant risks in balancing the,necessity 'for the
safety of its employees against the care and custody.
of the inmates involved then it will b~ incumbent
upon the trade union to demonstrate that the
balance, having regard to those risks, h~s been
improperly placed.
And to this end, the trade union adduced no
persuasive evidence to demonstrate that an
inappropriate risk to the safety'of the employees
was assumed in either of the situations that were
described in evidence. As hitherto'indicated we as
lay persons on a tribunal may readily be swayed as
to w~at might constitute safer procedures. However,
we require cogent, dispassionate and objective proof
that an "unnecessary" risk for extraneous and
irrelevant considerations has indeed been assumed.
in order to succeed, the grievor must establish
objectively that he is exposed to a real and unnecessary risk
when he is in the day area during meal periods. After very
careful'consideration and reflection of the evidence before
us and the able submissions of the counsel, we have come to
the conclusion that a violation of article 18.1 has not been
made out.
The institution is subject to the Ministry· of
Correctional Services Act and its regulations. The Board has
recognized that this legislation.envisaged contact between COs
and inmates. [Re Union Grievance, (Samuels) supra].' AnYtime
a CO is in the midst of inmates he is at risk. It is fair to
say that the larger the numbe~ of inmates the greater the
risk. As noted, it is not at all uncommon for officers to
intermingle with groups of 25, 30 or even 50 inmates at a
time. We find merit in the em~10Yer's .philosophy of
encouraging intermingling and contact between COs and inmates
as much as possible. In order for us to find that adherence
to this phi-losophy during meal periods constitutes a violation
of article 18.1, we must be satisfied that safety risks faced
by the grievor are so real andsubstantial, that the employer
is not justified in enforcing its general philosophy of
promoting officer-inmate contact; during meal periods.
Union counsel did not question the merits of the
employer's philosophy of encouraging contact between CO~and
inmates, as a general matter. His point is that at each meal
the average time an officer spends inside the day area is
about 10-15 minutes. Counsel submits that in that brief
period, not much of the benefits of intermingling, like the
development of a rapport, receiving of tips about contraband
etc., can take place. On that basis, counsel argues that the
2.2
current meal procedure' is not necessary to maintain the
institutions' philosophy.
When meal periods are seen is isolation, the contact is
limited to a maximum of 45 minutes per day (15 minutes @ 3
meals). Even if we accept that 45 minutes per day. is not
critial for the maintenance of the.management philosophy, it
may well be possible to argue that it will be safer for
officers to not be in direct contact with groups of inmates
at other times as well, such as chapel, visit periods, gym or
yard exercise. In all of these activities, the officer's
exposure to a group of inmates poses, a potential 'risk. The
fact is that'there is no objective evidence to establish that
the contact that occurs at meal time poses any greater risk
than at other times when COs are in direct contact with
inmates.
The evidence is that inmates generally are not a polite
'or orderly group. They are constantly complaining and they
do it frequently in a hostile and confrontational manner.
Most of "the incidents" about Which we heard were of this
variety. The~evidence is that such complaints were ~eferred
to the corporal, and were resolved without further incident. ~
There was an incident of an inmate throwing dishes. It should
.not surprise anyone, that from time to time inmates will'--
23
engage in disruptive conduct. The officers are empowered to
charge inmates in these cases.
While the' evidence clearly indicates .that there are
fr~quent~ complaints at meal time and that on occasion these
complaints are communicated in a hostile manner, there, is no
evidence to suggest that this is unusual. While the inmates'
frustration may some%imes be manifested by disruptive conduct
such as throwingLof dishes or abusive protests, there is no
indication that in .any of the incidents, there was any
intention to injure the officer.
The incident .that immediately triggered this grievance
occurred on May 3', 1988, and involved a number of complaints
about the food and an utterance of the word "riot" by an
unidentified inmate The grievor testified that at the time
the word was uttered, he was Outside the day area talking to
the other CO and the corporal. In his occurrence report the
grievor writes: "The word riot was uttered ~by some inmates,
whether in a joke sense or otherwise, but nothing transpired".
When he was asked in cross-examination what he meant by "in
a joke sense or otherwise", the grievor 'said: "Its possible
they used the word just to intimidate or may be as a joke.
If they had intended to riot, they would have". The grievor
was asked if the inmates were able to intimidate him. He
24
replied "~o, I have been there for sometime. I have a good
rapport. They know me and I know them.".
There is a lack of any objective evidence to suggest that
the inmate dissatisfaction with a meal is likely to translate
into personal hostility towards the inside officer to cause
an assault on him. While an assaUlt is not out of the
question, it is no more than a remote possibility. In our
view, the risk involved is not significantly greater than what
a CO faces any time he is exposed to a group of inmates.
There is no question that from the grievor's point of
view, the proposed slot system is safer than the existing
procedure. However, as the Board observed in +Re Moul~on,
" it is not enough to show that
230/88 (Watters) at p. 12, ...
the granting of a remedy might improve safety within the
workplace. Rather, t~eunion must establish that the working
conditions suggest a real or serious .possibility of harm".
One might be able to come up with a. number of proPOsals, which
this Board may be convinced, will make a CO's job safer than
it is. However, optimum safety is not the. test in article
18.1.
The evidence before us does not suggest that the grievor
is exposed to a real.or serious possibility of harm when on
inside duties at meal time.· He may be the recipient of verbal
complaints, sometimes'communicated in a hostile and abusive
manner. However, considering the grievor's experience ahd the
good rapport he had developed with the inmates and the various
Safety precautions that exist, we cannot conclude that there
is a real or serious possibiiity of harm to him. The risk
involved does not, in our view, cross the boundary of.
.reasonableness, envisaged in article 18.1. In'our view, the
balancing of the degree of risk involved-(considering the
nature of the job) and the institutional interests serVed by
the existing meal procedure, does not lead us to conclude that
the employer has failed to provide reasonable precautions for
the grievor's health 'and safety as required by article 18.1.
Accordingly the grievance is dismissed.
Dated this 15th ~ay of April, 1992 at Hamilton, Ontario.
N. Dissanayake
Vice-Chairperson
"I Dissent" (dissent to follow)
T. Browes-Bugden
Member
_
Member