HomeMy WebLinkAbout1989-0218.Faler.90-04-23~ ~.. ONTARIO EMPLOY£S DE LA COU~ONNE
~ ~ C~tOWNEMPLOY££S DEL'ONTARIO
GRIEVANCE C,OMMISSION DE
SEITLEMENT REGLEMENT
.BOARD DES GRIEFS
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218/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Faler)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
-- and -
BEFORE: B.B. Fisher Vice-Chairperson
E. Seymour Member
H. Roberts Member
FOR THE J. Hayes
GRIEVOR: Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
FOR THE J. Benedict
EMPLOYER: Manager
Staff Relations and Compensation
Ministry of Correctional Services
HEARING: April 5, 1990
INTRODUCTION:
This is a discharge grievance. Ori~nally the grievance involved two separate
allegations of inmate abuse, however, in an earl/er interim decision dated March 1990, this
Board dismissed one of the allegations as a result of a non-suit application brought by the
Union.
The only remaining allegation is that on Saturday, Sanuary 14, 1989, the
grievor, without just provocation, used excessive force against an inmate named Yates.
All of the events took place at the Waterloo Detention Centre, an institution
holding approximately 95 male inmates. The inmates are generally in for a short term stay,
usually on remand awaiting trial.
Employer's Witnesses:
Sharon Davis is a shift supervisor and has been with the Ministry for 18
years, all of that time at Waterloo Detention Centre. At approximately 1:00 p.m. on the day
in question she was doing a count on the first floor of the institution. Inmate Yates was
mouthing off to one of the staff. Ms. Davis instructed two C.O.s, Mr. Holton and the grievor,
to take inmate Yates to segregation. Mr. Holton and the grievor then proceeded to walk with
Inmate Yates down the corridor.
At one point inmate Yates started yelling obscenities at Ms. Davis and also
raised his arm to strike her. At this point Mr. Holton and the grievor grabbed inmate Yates
and wrested him to the ground, thereby preventing him from striking Ms. Davis. Ms. Dav/s
proceeded to the intercom and made an all-call announcement in order to obtain the assistance
of other siaff. Two other C.O.s answered the call, Mr. Stocker and Mr. Powis. Mr. Powis
proceeded to put Inmate Yates into a "sleeper" hold (an arm around the subject's neck, in
effect a choke hold). Ms. Davis noticed that at this point the inmate went limp and appeared
to become semi-conscious. This took place according to Ms. Davis at location # 1 on the
-2-
attached sketch. Then Messrs. Powis and Stocker each held an arm on Inmate Yates and
carried him through the door at position #2, At this point Mr. Powis let go of the headlock
on inmate Yates, who by now was llmp. Yates was unable to walk by hlm~eff so was in effect
being carried by Messrs. Swcker and Powis.
The inmate was then carried through the door as position #3 and they
proceeded to carry Yates up the stairs at position #4. At this time Ms. Davis was standing at
the bottom of the landing, near position #3 but inside the stairwell.
Ms. Davis testified that she observed Messrs. Powis and Stocker holding the
inmate under the arms, with his back to the floor and his face slumped on his chest, being
carried up the stairs. Then the grievor went a few steps ahead of them on the stairs. The
grievor then came around to the bottom of the stairs so that he was at the inmate's feet, and
at that point he stopped at Yates' face and started to gouge at the inmate's eyes with both
his fingers. Mr. Stocker told the grievor to back off, which the grievor did. The grievor
then picked up the inmate's feet, and proceeded to carry blm off to segregation, with the
assistance of Messrs. Powis and Stocker.
Following the incident Mr. Davis filled out an Occurrence Report dated
January 14, 1989. The only mention she made of the grievor in relation to anything that took
place on the stairwell was the following passage:
"Mr. Power, Mr. Faler and Mr. Stocker carried inmate Yates
to segregation and removed his clothes for his own protection."
Two weeks later, on January 31, 1989, Mr. Beeton, Deputy Superintendent,
called Ms. Da, ds into his office and told her that inmate Yates was charging C.O. Holton with
assault, .specifically that on January 14, 1989, C.O. Holton had punched him and gouged his
eyes. Ms. Davis then told Mr. Beeton that it wasn't Holton who did this, it was the grievor.
Mr. Beeton then asked her to do another report. Her second report, dated January 31, 1989,
was not drafted as a supplemental one to her January 14, 1989, report, rather it is intended to
replace the previous report, in this report she clearly implicated the grievor.
3'
In her examination in chief, Ms. Davis indicated that she did not write a full
report on January 14, 1989, because of the importance of getting along with the line staff and
that she knew how vindictive the grievor could be. She was not disdplined for failing to fill
out her first report accurately.
Under cross-examination Ms. Davis admitted that she had participated in a
cover-up of the incident by filing a false report on January 14. She believes that C.O.
Stocker also saw the assault, but that he changed his testimony at the criminal trial of the
grievor. She believed that the grievor, Stocker and Powis ali lied at the criminal trial and
that she is the only honest one among the wimesses.
On the day of the incident Ms. Davis congratulated all the officers on their
conduct, including the grievor.
Ms. Davis testified at the criminal trial of the grievor on charges of assaulting
Inmate Yates. The grievor was acquitted of those charges. These contradictions axe as
follows:
Ms. Davis contradicted herself on a number of serious items between her
testimony at the arbitration and the earlier criminal trial.
1. At the arbitration, she denied that she had commended the grievor and others
in writing. However, at the trial (page 57 of the transcript) she testified that she had
commended the grievor and others in writing to the Superintendem.
2. At the arbitration she said the gouging took 30 seconds. At the criminal ~rial
(page 40) she said it took 5 - 10 seconds. When she was timed in reply, her estimate turned
out to be 7 seconds. She testified under cross-examination that she didn't know whether it
was 5 or 30 seconds.
-4-
3. At the arbitration she testified that she was absolutely sure that at the time
of the gouging, Mr. Stocker was on the right side of the inmate, putting him by the railing.
She was as sure of this as she was that she saw the gouging. However, at the cr/minal
trial (page 36) she clearly said that Mr. Stocker was on the wall side. When
confronted with this blatant contradiction she said she was telling the truth at the
arbitration. She blamed the problem on the fact that at the criminal trial she was being
examined by an inexperienced 'rem-a-Crown" and that she didn't have the use of a diagram to
assist her, like she did at the arbitration.
4. At the arbitration she testified that she was absolutely sure that Mr. Powis
first applied the sleeper hold on the inmate at position #2. However, at the criminal trial she
testified that the sleep hold was first applied at position #3. When confronted with this
contradiction, Ms. Davis reverted back to her January 31 report and restated that the sleeper
hold was first applied at position #2. She said that she was wrong at the criminal trial and
correct at the arbitration hearing.
5. At the arbitration hearing she said that when inmate Yates was cowing
through the door at position #3, he was being held by Mr. Powis on the left and Mr. Stocker
on the right.. At the criminal trial (pages 31 and 32) she said that Powis alone had the
inmate under control at this time. Ms. Davis again said that she was wrong at the criminal
trial and correct at the arbitration.
6. At the arbitration hearing, Ms. Davis said that the gouging was from the
forehead to the middle of the cheek. At the criminal trial (page 38) she testified that the
grievor "started raking tmdemeath his eyes". Ms. Davis again said her subsequem testimony
at the arbitration hearing was true and that the criminal trial testimony was mistaken.
Ms. Davis' demeanour while testifying was quite defensive and aggressive. It
is interesting to note that when asked to decide between which testimony was true, her
criminal trial testimony or her arbitration testimony, she consistently reconfirmed the
testimony which painted the grievor's actions in the worst light.
The next witness for the employer was C.O. Holton- When inmate Yates was
going through the door at position #2, he was being held by Messrs. Stocker and Powis, with
Mr. Holton and the grievor holding on to the inmate from behind. Mr. Holton stood at
position #5 while he watched Messrs. Po, vis and Stoeker take the inmate through the door at
position #3.
Once they had passed through the door at position #3, they were out of his
sight. He went to record the incident in the log book. He then heard a commotion coming
from the stairs and he returned to position #3 to see ff his help was needed. By the time he
got to position #3, it was quiet again_ He saw Mr. Powis holding the inmate in a headlock
and Mr. Yates appeared to be red-faced and semi-conscious. He thinks Stocker had the
inmate's legs. He doesn't recall seeing either the grievor or Ms. Davis. Mr. Holton was not
cross-examined.
Ms. June Dowdy was employed at the time of the incident as a Registered
Nurse at the institution. She examined inmate Yates approximately an hour after the incident.
Her medical report notes scrapes on both cheeks and a bruise on the upper left eyelid, as well
as other injuries. She testified the scrapes on the cheek were consistent with being scratched
by clothing, jewellery, fingernails or any similar such object. She was not cross-examined.
The last witness for the employer was Ruth Kenny. At the time she was
employed as a casual C.O. She no longer works for the Ministry.
At the time of the incident she was at position #6, looking down at the
stairwell fi.om the second floor landing. She had a clear view of the entire area around
position #4.
She observed C.O. Powis on the second step, with Yates between his legs, his
back pressed agaimt Po,aris' chest. Mr. Stocker was also beside the inmate and the grievor
was in between Mr. Stocker and the inmate. The grievor had hold of the inmate's arm and
was twisting it backwards. At this point inmate Yates passed out. Mr. Stocker than said to
the grievor "Back off Danny, he's gone~ and pushed the grievor back lightly with his arm.
The grievor backed off, then Mr. Stocker raised inmate Yates' arm and it fell to his side.
At this point Ms. Ken. ny went back to the segregation unit on the second floor. She doesn't
recall seeing Ms. Davis in the stairwell area during the incident.
The whole incident took a few _minutes. She did not testify about observing
the grievor attack the inmate's face. Insofar as her view was from the top of the staixs
looking downward towards the incident, it was a clear and unobstructed one.
Union's Witnesses:
Mr. Paul Powis iaas been with the Ministry as a C.O. for eleven years.
He responded to the all-call and when he arrived at the scene he saw Messrs.
Holton and Faler trying to subdue inmate Yates. This was at position #7.
At position gl, Mr. Powis put a headlock on the inmate. They had difficulty
getting the inmate through the door at position g2 as too many people were holding onto him.
It was at this time that C.O. Stocker said "It's okay, Patti has him".
Mr. Powis then proceeded to go through the door at position #2 and also the
door at position #3. By this time the inmate had stopped resisting.
Once in the stairwell (position g4) he dropped the headlock and took the
inmate by his armpits, with the inmate's back to the floor. Mr. Stocker came around to the
front (up the stairs) and grabbed the inmate by the legs. In other words, the inmate was
going up the stairs feet first, back to the floor.
At no time during the entire time they were in the stairwell or on the stairs
did the grievor come into any contact with the inmate. He never observed the grievor
scratching the inmate's face and he is quite sure he would have seen it ff it had happened as
the inmate's face was fight in front of him at all times and the stairwell was adequately lit.
Mr. Powis assumes that the grievor was behind him in the stairwell although he is not sure as
he did not see him at that time. He doesn't recall Mr. Stocker telling anyone to back off
while in the stairwell, rather he says the back-off comment took place earlier at position #2.
He is also sure that the grievor did not walk by him up the stairs while the inmate was in
the stairwell.
Mr. Duncan Stocker has been a C,O. for 22.5 years, and is due for retirement
next year.
He con~rmed Mr. Powis' testimony that he said the back-off comment at
position #2. The inmate went llmp shortly thereafter, in between positions #2 and #3. In the
stairwe~ he took the inmate's legs and Mr. Powis took the !nm~te under the armpits. At no
time in the stairwell did he see the grievor either come into physical contact with the inmate
nor did the grievor scratch the inmate's face.
On cross-examination, Mr. Stocker said that while he and Powis were carrying
the inmate up the stairs they were the only C.O.s in the stairwell. In other words, according
to Mr. Stocker, the grievor was not even in the stairwell at the time of the alleged assault.
Mr. Stocker also denies that he made the "Danny back-off" statement in the stairwell.
The grievor, Danny Faler, is 39 years of age, married with two young children.
His wife is a housekeeper at the Kitchener-Waterloo Hospital. He has been separated from his
wife since November 1989. His seniority date with the Ministry is January 2, 1975.
The grievor says that by the time he first entered the stairwell area, Messrs.
Stocker and Powis were already carpfing the inmate up the stairs. He simply followed behind
them up the stairs. He denies that he ever gouged or attacked the inmate's face. Although
not clearly stated, it would seem to follow from the grievor's testimony, as supported by
Messrs. Powis and Stocker, that he had no physical contact with the inmate ia the stairwell.
In fact ia his report he mentions that the inmate was moved to segregation by Mr. Stocker
and Mr. Powis.
Decision:
As usual, this case comes down to one of credibility.
There are really two issues to be decided on the basis of the evidence.
First, was the grievor ia the stairwell at the time of the incident and did he
have some physical contact with the inmate?
Ms. Davis, even ia her first report, puts the grievor ia the stairwell helping to
carry the inmate to segregation. More importantly, however, Ms. Kenny also places him in
the stairwell at the relevant time and has him twisting the inmate's arm. The evidence of
Mr. Stocker, Mr. Powis and the grievor is that the grievor was not present ia the stairwell at
the time the incident allegedly took place and ia any event the grievor had no physical
contact with the inmate ia the stairwell.
Of all the above-mentioned witnesses, the most credible and forthright was Ms.
Kenny. She was a bargaining unit member called by management. She is no longer an
employee of the Mini.~try. Her creditability was not attacked ia cross-examination, nor ia
argument. She was quite frankly the only witness who had no ax to grind, in other words,
she had no vested interest to do anything but tell the whole truth, and nothing but the truth.
Her ability and powers of observation were not undermined, in fact both counsel relied on her
testimony to support their case.
!9-
Therefore, where the evidence of Ms. Kenny differs from any of the other
mentioned witnesses, we prefer the evidence of Ms. Kenny.
Therefore, we find that the grievor was in the hallway at the relevant time
and did have physical contact with the inmate in the stairwell.
The next question is therefore, did the grievor's physical contact with the
~nmate include scratching or gouging of the eyes or face?
The only witness which says such an attack took place was Ms. Davis, and
only from her second report onwards. Her testimony was not felt by this Board to be
reliable, in light of the numerous contradictions between her testimony at the criminal trial
and the arbitration, her complete turn around between her January 14, 1989, report and her
January 31, 1989, report and her tendency to exaggerate her testimony.
This is especially so when her testimony is compared to that of
Ms. Kenny, who we have already found to be a most credible witness. Ms. Davis said that the
sequence of events in the stairwell was that first the grievor attacked the inmate's face and
then Mr. Stocker said "Danny, back-off'. Ms. Kenny testified that she had been viewing the
scene for quite a while when she heard the "Danny back-off" comment. Thus, she must have
been viewing the scene exactly when Ms. Davis said the attack took place. However,
Ms. Kenny saw no such attack, but she did see the grievor grab and twist the inmate's arm,
and that is what seemed to prompt Mr. Stocker to tell the grievor to back off. It is ~.lmost
inconceivable that Ms. Kenny would not have seen a vicious prolonged attack on the inmate's
face ff the grievor had done so as described by Ms. Davis.
This Board finds therefore that on the evidence presented to us at the
hearing, the employer has failed to prove on the balance of probabilities that the grievor used
excessive force on the inmate Yates by attacking and gouging his face on January 14, 1989.
- 10-
The grievance is therefore allowed. The grievor is therefore to be immediately
reinstated as a C.O. 2 at the Waterloo Detention Centre with complete compensation, including
interest in accordance with the decision in Hollowel House Ltd. (1980) OLRB Rep. Jan 35.
This Board remains seized of any matters of implementation of this award and
problems in calculating compensation.
DATED at Toronto this 23rd day of April, 1990.
Barry/~/i~er, Vice-Chairperson
-~Z~-r~ _. '(Addendum attached)
E. Seymour
r: ,\ ,,~..-~X~'.~, (Addendum attached)
H. Roberts
AD DE N D U N
218/89 OPSEU (Faler)
Ministr~ of Correctional Services
I fully concur with the decision rendered in this award.
However, I feel compelled to write an addendum to highlight one
disturbing aspect of this case which was not addressed. That is
the quality of the investigation which led to the discharge.
Mr Tom Bolton, Superintendent, at the Waterloo Detention
Centre, is the individual whose ultimate decision it was to
discharge the grievor. It was Mr. Bolton's responsibility to
order the investigation into the alleged wrongdoing and to gather
the necessary information to determine whether the incident
actually occurred and if so to decide what penalty if any was
warranted. Mr. Bolton stated, as a result of the investigation
and based on the reports submitted, it was his opinion that
excessive force had been used. He met with the grievor, Mr.
Armour and Mr. Beeton for approximately 20 minutes. He claimed
that at the meeting he reinterated the allegations and offered the
grievor the opportunity to express his views. The grievor,
according to Mr. Bolton categorically denied involvement, and when
he attempted to elicit responses from the grievor none were
forthcoming. At this point he concluded the meeting.
Following this meeting Mr. Bolton claimed he went to London
to discuss the allegations with the Regional Manager and expressed
the view that the allegations were substantiated. Under direct
examination Mr. Bolton was forthright and on the surface his
testimony seemed to be reasonable. Under cross-examination
however, while he remained candid a different picture began to
emerge. It quickly became evident that Bolton's investigation was
not as thorough or as objective as it should have been.
It is important to understand that Mr. Bolton was not an eye
witness to any of the events about which he was making judgements.
It was therefore essential for him to conduct his investigation as
objectively as possible.
Mr. Bolton admitted it was absolutely essential to get
reports from all persons who were witnesses to an alleged
occurrence. It was also elementary to conduct the investigation
when the incident actually occurred and to record the findings in
the log book. Despite this, he admitted that he himself did not
know if the incident was recorded in the log books and he didn't
look at them when conducting his investigation.
We already know from the main award the unreliablility of Ms.
Davis' testimony. Yet Mr. Bolton readily admitted the only
information he had connecting the grievor with the alleged
occurrence was from Davis.
Under cross-examination, Bolton admitted that he did not ask
Powis for a report because it would be superfluous.
Initially there were no reports from any of the Correctional
officers and Powis as we already know .was never asked for one,
because, according to Bolton, he "did not think it was necessary".
Bolton further testified that he did not get a report from
the inmate because he did not know who assaulted him.
From Mr. Bolton's testimony alone it became clear that of the
people present when the alleged incident occurred:
- the inmate didn't know who did it;
- Holton made no reference to the grievor;
- Stalker said no excessive force was used;
- Powis wasn't even asked;
- the grievor denied the incident; and
- Davis the only person who saw the alleged attack
gave so many different versions of the incident
her testimony was totally unreliable.
Mr. Bolton admitted under cross-examination that he didn't
believe any of the Correctional officers. He claimed, Powis,
Stalker, Holton and Faler would all lie about what they saw and
"The bargaining unit members left things out". He further
admitted that he nor anyone else, as far as he knew, asked the
witnesses; Did you see Faler gouge eyes?
Mr. Bolton's justification for his view that the witnesses
were unreliable was the "Code of Silence", which he described as
the most severe - next to the Don Jail, as any place he ever
worked.
The consequences for breaking the Code, according to Mr.
Bolton was that, "you are ostracized. The potential for
assistance in a response situation would be reduced, but being
ostracized is the most difficult of all". He said, it depended on
the strength of the individual whether he could rise above it.
Elaborating further, he said he "understood it because he lived
through it and at the same time I refuse to fall victim to it and
will do everything to overcome it" Mr. Bolton admitted the Code
of Silence was a major factor in his investigation. In response
to a question from the Vice-Chairperson, Mr. Bolton said that the
Code of Silence effected the Management Ranks.
In concluding, Mr. Bolton stressed Ms. Davis made significant
strides in rising above the Code of Silence. It is the opinion of
this member of the Board, that Mr. Bolton's objectivity was so
flawed by his paranoia about the "Code of Silence" that he failed
to conduct a proper investigation into the incident. Had he
conducted a proper investigation he would no doubt have come to
the same conclusion as this Board and found there was little by
way of evidence, even on the balance of probabilities to implicate
the grievor with the alleged incident.
Mr. Bolton's total lack of objectivity directly resulted in
the grievor losing his job, and because of it the grievor
experienced considerable mental anguish and financial hardship.
It is incumbent upon the Ministry to ensure that Mr. Bolton
is never again charged with the sole responsibility to conduct an
investigation the result of which might lead to the discipline of
an employee.
Mr. Bolton's investigation bordered on the incompetent and
the grievor's discharge was based on virtually, no substantive
evidence.
The grievor appeared in Court over the incident and the
result was a directed decision which absolved the grievor of any
wrongdoing.
This Board rendered a non suit decision with respect to
another incident involving the same grievor. Despite this the
Ministry persisted in proceeding with the case which took a total
of eight days spread over several months to hear (including the
non suit), At times it appeared that the Ministry was
deliberately prolonging the hearing. Several witnesses were
called and contributed nothing substantive to managements'
allegation. Several offered testimony so insignificant it wasn't
worthy of' cross-examination. On at least one occasion the
Ministry didn't have enough witnesses to carry the day resulting
in an early adjournment.
I raise these concerns because the grievor suffered
considerable anguish, most of which could have been avoided. In
conclusion this case was one of the most disturbing I have ever
participated in my 28 years in the labour relations field. Ail of
which is respectfully submitted.
Member
ADDENDUH
218/89 OPSEU (Faler)
Ministry of Correctional Services
I am concurring with the decision reached in this award
more on the basis of "not proven" rather than total absolution.
Certainly in the often contradictory and inconsistent
evidence given, there is not any clear thread binding the grievor,
without question, to the allegation of excessive force.
Eyewitnesses, ~ome of them pre~ent and active in the
subduing of inmate Yate$, have the grievor present at the scene
and directly involved; some have him present but not involved;
some can't even place him at the site.
The medical report and the testimony of the institution's
nurse clearly indicated that there were scrapes or scratches down
each cheek of inmate Yates. When and how these injuries were
sustained, or who inflicted them has, however, not been
established.
H. Roberts
Member