HomeMy WebLinkAbout1989-1496.McKinnon.92-01-22 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE * C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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1496/89
TN THE YJLTTER OF ]tN J~RBZTIU~TZON
Under
THE CRO~ EHPLOYEE8 COLLECTTVB B~G~ZNZNG ~CT
Before
~ GRI~CE ~ETT~~ ~
BE~EN
OPS~ (HcK~nnon)
~rievor
The Cro~ in Riqh2 oE Ontario
(Minist~ of Correctionpl Se~ices)
~ployer
Bg~O~: S. Stevart Vice-Chairperson
I. Thomson ~e~er
~. O'Toole ~e~er
FOR THR A. Ryder
GRZ~OR Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE G. Lee
F~PLOYER Staff Relations Officer
Ministry of Correctional Services
HEItRiNG April 5, 1990
August 13, 16, 1990
December 13, 18, 1990
July 10, 1991
DECISION
In a grievance dated November 17, 1989, Mr. M. McKinnon
alleges that he was disciplined without just cause. Mr.
McKinnon is a Correctional Officer at'Metro Toronto East
Detention Centre. He has been employed at that institution
since ~ecember, 1977. The grievance arose from a letter
dated October 12, 1989 from Mr..G. simpson, Superintendent
of the Metro Toronto East Detention Centre, the text of
which reads as follows:
ALLEGATIONS MADE CONCERNING OTHER STAFF
On September 18, 1989, you made several
complaints concerning two (2) Correctional
Officers, relating to the inadequacy of their
training, the fact that you had to work with
and train one of t~em du~ing your tout of duty,
and that your safety in this institution was in
'jeopardy as a =esult.
You raised your concerns with the Unit
Manager, Sergeant G. Ellis who, after
investigating your complaints, provided you
with responses to each of them. However, you
then complained to others that Sergeant Ellis
did not address your complaints or discuss
them with you.
Later that same day you addressed these same
concerns plus others to Sergeant V. Daley
stating that you were suffering added stress
as a result of these concerns and the lack of
consistency among supervisors.
As a consequence to your complaints, the
officers and Supervisors i'nvolved were
instructed to submit reports in regards to
them, in order that the matter be fully
investigated. When these reports were
brought to my attention, I instructed Mr. A.
Dvorak, Senior Assistant Superintendent,
Corrections (A) to conduct a formal
investigation into all the circumstances. He
has now done so and I understand that he has
had a meeting with you and permitted Mr. W'.
Lee, Union Steward, to be present while he
went over his findings.
Having now read the reports myself, I am once
more left with the impression that as a
Correcti~na.1 Officer, you are the epitome of
negativity and continue t~ maintain, what
appears to be an obsession: that thi~
institution, its management and operations
are ineffective and that only you are in a
position to decide what is best for all
concerned. Your conduct towards Mr. Fraser, a
young Correctional Officer assigned to work
with you during his first day on 'the job, was
deplorable. Instead of sharing your
experience to assist and guide this young man
to learn his duties and responsibilities, you
took it upon yourself to point out his
failings and berate him for the manner he was
carrying out procedures he was obviously
unfamiliar with. In doing so, you may well
have de.stroyed this· young man's incentive -and
initiative for- the job and if not, certainly
.gave him reason to doubt his abilities to
function as a Correctional Offic6r.
Over the years I have' consistently attempted
to counsel and assist you to handle your
personal situation, but I am now satisfied
the only measure that will prove effective is
for you to seek professional intervention..
You are again showing yourself to be in an
unnaturally anxious and agitated state which
is affecting your judgement, and causing you
to be a disruptive influence in this
institut-ion. So much so that I intend to
assign you to a position where you will have
little contact with inmates and where you
should have little or no concern for your
safety. Therefore you will be assigned to
the 2B post indefinitely or,. until such time
that I am satisfied you have taken remedial·
steps to control your emotions and attitude.
If this is not satisfactory to you I suggest,
with the best of intentions, that you
consider other means of employment which will
be less stressful to you. If I can be of
assistance in this regard, please arrange to
see me. While you will undoubtly believe
otherwise, this decision is made in the best
interest of yourself and this institution and
is, in no way, to be considered or construed
as discipline.
By letter dated January 3, 1990, following the second
step of the grievance procedure, Mr. G. G. Simmons,
Regional Manager, Metro Region, wrote a letter advising Mr.
McKinnOn that the Employer was withdrawing the October 12,
1989 letter. At the commencement of the hearing it was the
position of the Employer that as the letter had been
withdrawn there was no issue of discipline for the Board to
determine. It was the P°sition.of the Union that there was
an issue for the Board to determine, in that the relief
sough.t by Mr. McKinnon had not been g. ran.ted. Specifically,
it was the position of the Union that the Employe. r ought to
be directed to pay damages. The grievance claims damages
in the amount of $5OOO.OO., As well, the Union sought the
· posting of a declaration that Mr. McKinnon was disciplined
without just cause. The Board concluded'that it was
necessary to hear the evidence prior to making a decision
with respect to this matter, As this decision ultimately
indicates, it is our conclusion that there has been a
violation of the Collective Agreement in that Mr. McKinnon
was disciplined without ju'st cause and that the removal of
the letter of October 12, 1989 did nOt fully remedy the
violation. In our view, the facts of this case differ from
the facts of Maghsoudi 392/82 (Brandt), which was relied on
by the Employer in support of its position that there is no
4
longer a dispute between the parties to be resolved, since
the letter of October 12, '1989 has been withdrawn.
The Metro East Detention Centre is a maximum security
institution with four to five hundred inmates. On
Septe~.ber 18, 1989, Mr. McKinnon was assigned to 4A unit
working the 7 a.m. to 7 p.m~ shift. 'Mr. McKinnon was
assigned to work with Mr. M. Fraser, a casual employee who
was a member of the unclassified staff. This was Mr.
Fraser's first assignment to a unit.
Mr. McKinnon testified that early in the shift Mr.
Fraser asked him what the eleven keys Were for. He said
%hat Mr~ Fraser w~s unable tO distinguish one key from·
another until he provided Mr. Fraser with an explanation.
Mr. McKinnon testified that he told Mr. Fraser that he
was going to performthe "daily damage" report. This is
the procedure by which cells are inspected and any damage
in the cells is documented. While one.officer carries out
the inspection the other officer stands at the grille door
to ensure that the officer inspecting the cells is safe.
Mr..McKinnon testified that Mr. Fraser was unaware of what
had to be done with respect to the report.
Mr. McKinnon testified·that at this time the
5
supervisor, Mr. G. Ellis came in and asked if everything
was "okay" in the unit. Mr. McKinnon said that he
explained that he had had to inform Mr. Fraser about what
the keys were for and that he was unaware of the damage
report. Mr. McKinnon stated that this was obviously
embarr, assing to Mr. Fraser and that he regretted causing
him embarrassment. However, he wished to bring these
matters to the attention of management because he was
concerned that his partner was not fully trained and he
felt that he was personally at risk in the situation. Mr.
MacKinnon testified that Mr. Ellis advised him to keep him
informed.'
'Mr. ~cKinnon and Mr. Fraser were next involved in the
meal procedure. Mr. McKinnon said that he discussed the
meal procedure with Mr. Fraser and that Mr. Fraser seemed
clear about it. Mr. McKinnon stood at the grille door
while Mr. Fraser went inside to distribute the meals. Mr.
McKinnon stated that he sent Mr. Fraser inside because he
did not feel confident with him at the door. Mr. Fraser
distributed the meals on the east side of the cell. Mr.
McKinnon said that he asked Mr. Fraser if the doors had
been locked and that Mr. Fraser replied 'that they had.
After the meals had been served the other side they noted
that a cell door had been left open on the east side. Mr.
McKinnon described this as a significant security breach.
6
Mr. McKinnon stated that Mr. Ellis again came to the cell
area and that he related the event to him and expressed his
concerns. He stated that Mr. Ellis replied that Mr. Fraser
had received all the-training he would obtain.
In his evidence, Mr. Ellis acknowledged that Mr.
McKinnon spoke with him regarding his concerns about Mr.
Fraser. Mr. Ellis stated that he spoke to a training
officer about the training that Mr. Fraser received and
that he returned and advised Mr. McKinnon tha~ Mr. Fraser
had received sufficient training to perform his duties.
Shortiy afterward, ~hen the inmates were in-the course
of cIeaning their cell~, ~a plumber~came up to the unit to
deal with a plumbing problem in one of the cells. Mr.
McKinnon went into the c'ell area with Mr. Fraser remaining
at the grille door. During the cleaning procedure the
inmates are not in their cells. Mr. McKinnon testified
that while he was in the cell area he observed the i~mates
rushing up to the grille door. There is a line three feet
in. front of the grille door which the inmates are not
supposed to cross. The inmates had gone across that area
and were at the area of the grille door. Mr. McKinnon said
that he could 'also see inmates in the corridor on the other
side of the grille door. He stated that he was Unable to
see Mr. rFraser. He noticed another correctional officer,
7
Ms. Deslieres, by the stairwell door. Mr. McKinnon went to
the grille door, opened it and'left the cell area with the
plumber. Mr. McKinnon observed Mr. Fraser to the left of
the grille door. Mr. McKinnon stated that Mr. Fraser told
him that he had been pushed down. Mr. McKinnon described
the i ~n~ates as screaming and yelling in a situation in
which there was no control. He stated that aside from the
fact that Mr. Fraser had been unable to observe him, there
is a rule against such inmate contact because of concern
about the inmates in the corridor passing information or
contraband. This incident occured around 10:00 a.m. Mr.
McKinnon was ~ritical o~ both Ms. Deslieres and Mr. Fraser
on the basis that they. were not eKerting the necessary
control over ~he inmates in that 'situation.-
Mr. Ellis again came into the unit and Mr. McKinnon
related the events and expressed concerns about the
adequacy of Mr. Fraser!s training. Mr. McKinnon testified
that Mr. Ellis indicated that Mr. Fraser had received the
training that the institution provides and that "if he
wanted something done about it he should put it on paper".
Fo%lowing this discussion there, were complaints from
inmates that they had not been offered an opportunity for
yard exercise. Mr'. McKinnon asked Mr, Fraser about the
matter. Mr. Fraser advised him that he had asked the
-inmates if they wished to go to the yard and they had
8
refused. Mr. McKinnon had difficulty in accepting that the
offer had been made. He was concerned about the potential
for this matter becoming volatile as the opportunity to go
to the yard is a matter of some importance to the inmates.
Mr. Ellis' evidence suggests that the conversation in which
there ~as reference to the preparation of a report took
place following Mr. McKinnon reporting the "yard" incident
to him. Mr. Ellis' evidence was that he directed Mr.
McKinnon to write a report about the incidents.
Mr. McKinnon stated that he felt that the situation
was a serious matter and he prepared a report which he gave'.
to Mr..'Elli's. Mr. McKinnon also raised the matter with
Sargeant V.-Daley, another supervisor.' Mr. Daley =equested
and obtained reports from the staff members involved in the
incidents. He reviewed Mr. McKinnon's concerns in a
memorandum dated September 18., 1989, to Mr. Simpson. Mr.
Daley indicates in this memorandum that Mr. McKinnon felt
that his concerns had been minimized. Mr. Daley concludes
this memorandum as follows:
· ..it is my opinion that to relieve certain
concerns inherent in this report we. should:
1. Re-institute the concept of an assigned
training unit with the I.T.O. and directly under
his span of control.
2. Implement a [illegible] & Substance course
etc. within the Phased Training Process with the
intention of meeting T.E.D.C. specific needs.
3. Establish Orientation Officers with the
responsibility of assisting new staff in
hands on experiences.
Mr. Fraser prepared a report with respect to these
incidents. As well, Mr. Fraser gave evidence before the
Board. Mr. Fraser acknowledged that he was not fully
familiar with- the keys and that he was not aware of how to
complete a daily damage report. Mr. Fraser testified that
Mr. McKinnon complained to him about having to work with
him. As well, Mr..Fraser acknowledged that he had failed '
to lock one of the cell doors. Mr. Fraser also
acknowledged that the inmates were crowding the grille door
from both sides but stated that he did not lose sight of
Mr. McKinnon. Ms. Deslieres was not called to give-
evidence, ho~eve.r her report of the incident indicates that
her escort of the inmates at the relevant time was
"orderly". With respect to the yard incident, Mr. Fraser
testified that he had asked the inmates if they wished to
go to yard and that they refused. In his report, Mr.
Fraser stated that he felt %hat Mr. McKinnon demonstrated a
"negative attitude" toward him which made his work harder.
The Board heard evidence from Mr. R. Spencer who is
employed as a Correctional Officer at Toronto East
Detention Centre. Mr. Spencer gave evidence regarding his
concerns about a Correctional Officer which caused him.to
10
write a memorandum to Mr. Simpson. In this memorandum Mr.
Spencer expressed concerns about the performance of the
officer, who was relatively new, in connection with
security matters. Mr. Simpson responded to Mr. Spencer by
memorandum dated December 16, 1985, in which he thanks Mr.
Spence. r for bringing the matter to his attention and
advises Mr. Spencer that he has arranged for additional
training for the officer.
Mr. McKinnon attended at a meeting with Mr. A. Dvorak,
senior assistant superintendent, on October 2, 1989. At
that time all of the reports of the incident were reviewed..
Accordi.ng to a report of that meeting, which was signed by
'Mr.-Dvorak, the purpose of .the meeting was to "offer
'guidance to Mr. McKinnon and help in the training of new
staff members assigned to work with him". There was no
reference to Mr. McKinnon's assignment to 2B. Mr. McKinnon
testified that he was assigned to 2B shortly after his
meeting with Mr. Dvorak. It was not until sometime later
that he received' the letter indicating that he would be
receiving this assignment on an indefinite basis. Mr.
McKinnon stated that he was assigned to 2B for three and
one-half to four months. This area is where the inmates
who work in the institution reside. They are considered to
be lower security inmates. The job entailed opening two
corridor doors for the entire shift. All staff members may
11
be assigned to this unit as part of their regular duties.
However, Mr. McKinnon stated that it was known as a
"punishment posting" by staff and supervi.sors. His
evidence in this regard was confirmed by Mr. Spencer and
Mr. Lee, another Correctional Office~ at the institution.
While ,the evidence suggested that a lengthy assignment to
2B may not be regarded as a "punishment posting" for an
older Correctional Officer who was about to retire, such an
assignment has a different connotation for a young
Correctional Officer like Mr. McKinnon. Mr. Spencer
testified that an assignment to 2B was "a way of showing
the institution that you had screwed up". Mr. Dvorak and
Mr. simpson denied that it was a "punishment postin.g".
They described it as a "low stress" unit.
Mr. Spencer and Mr. Lee both testified that they would
be concerned about situations in which their partner was
not aware of the function of all of the keys, was not able
to complete a daily damage report, left a cell door
unlocked and allowed inmates to crowd the grille door.
Both Mr. Spencer and Mr. Lee s{ated that they would bring
such matters to the attention of their supervisor.
There is a standing order in the institution which
requires employees to "be vigilant and promptly report
safety and/or security breaches". As well, there is a
12
standing order which obliges employees to "exhibit
courteous and professional behaviour.in all of their
de~lings with each other., o"
Mr. Ellis' report of the matter to Mr. Simpson was
critic, al of Mr. McKinnon. Mr. Ellis reported that all of
Mr. McKinnon's complaints had been addressed by him and
expressed the view that Mr. McKinnon had behaved toward Mr.
Fraser in a "belittling and demeaning manner". Mr. Simpson
did not meet with Mr. McKinnon prior to issuing his letter
of October 12', 1989. Mr. Simpson testified that he made
his decision to send the'. letter after reviewing the reports
prepared in connection with the matter.
The Board heard some evidence regarding incidents in
the past which reflects difficulties between Mr. McKinnon
and some members Of management, including Mr. Simpson..
However, Mr. McKinnon's performance appraisals which were
filed with the Board reflect favourable assessments of Mr.
McKinnon's performance as a Correctional Officer. On the
evidence before us it is not possible to conclude where the
responsiblity lies for these difficulties, if in fact the
responsibility lies exclusively with any particular person.
However, it is our view that perhaps Mr. Simpson"s
unfavourable perception of Mr. McKinnon coloured his views
with respect to the merits of his concerns about the events
13
of September 18, 1989.
Mr. Simpson's letter of October 12, 1989 is clearly
disciplinary in nature. Notwithstanding its statement to
the contrary, the criticism of Mr. McKinnon's conduct is
such that there can be no doubt that the letter is
disciplinary. It is our conclusion ithat the transfer of
Mr. McKinnon to 2B was a disciplinary transfer. Even
though an assignment to this unit may be part of a
Correctional Officer's rotation, we accept the evidence of
the Union's witnesses that the indefinite assignment of Mr.
McKinnon was intended to be an act of punishment and would
be viewed by Mr. McKinnon's supervisors and co-workers as
such. We cannot agree with Mr. Lee's submission that the
transfer 'should be characterized as a matter of the
exercise of the Employer's right to transfer pursuant to
section 18(1) of the Crown Employees Collective Bargaining
Act. The circumstances of this case distinguish it from
Beauparlan~, 1203/89, (Verity), referred to by Mr. Lee.
While the Employer has the right to transfer employees in
the exercise of its managerial rights, it may not transfer
employees as a disciplinary measure and avoid its
obligation under the Collective Agreeement to discipline
only for just cause by virtue of haVing chosen this method
of disciplinary action. It is clear, in our view, that the
purpose of the transfer was to punish Mr. McKinnon.
We turn now to the issue of whether there is just
cause for the discipline that was imposed.. It is our
conclusion .that just cause has not been established. The
events of the morning of September 18, 1989, give rise to
some clear objective basis~ for Mr. McKinnon's concernsl
Aside from'the matter of whether Mr: Fraser asked the
inmates about going to the yard, the evidence is clear that
Mr. Fraser demonstrated, a lack of knowledge about the keys
and the daily damage, report. As well, there is no dispute
that he left a cell door unlocked. Whether or not Mr.
Fraser lost s, ight of Mr.-McKinnon while Mr. McKinnon was in
the cell area, Mr. Fraser acknowledged that the inmates
were crowding the door. The Employer's witnesses
acknowledged that leaving a cell door open and allowing
inmates to crowd the grille 'door are serious matters.
While Mr2 McKinnon could have been more diplomatic in his
dealings with Mr. Fraser it must be recognized that in the
work environment of a correctional institution such
concerns may have significant implications for the safety
of a' correctional officer. We are convinced that Mr.
McKinnon was raising sincerely held concerns about Mr.
Fraser's training. It is significant that Sargeant Daley
felt that the matters raised by Mr. McKinnon were of
sufficient concern that he made recommendations. The
response of the Employer to Mr. McKinnon's concerns, in
15
contrast to the response to similar concerns raised by Mr.
Spencer, is striking. We agree with Mr. Ryder's submission
that an objective view of the evidence supports the
conclusion that there was substance to the matters raised
by Mr. McKinnon. Given Mr. McKinnon's positive obligation
to re~p~.rt such matters, his. action in doing so in the
circumstances of this case does not properly give rise to
the imposition of discipline. Accordingly, our conclusion
is that the di.scipline imposed on Mr. McKinnon was unjust.
Having concluded that the discipline imposed on Mr.
McKinnon was unjust, we turn to the issue of the
appropriate remedy. By virtue of the lette~ of January 3,
1990, the October 12, 1989 letter has been withdraWn.
There was some suggestion in the evidence that copies of
this letter may still exist in the Employer's records.
While we do not think it inappropriate for Mr. Lee to
retain a copy of this letter in the file established in
connection with this case, we direct that any other copies
in existence be destroyed. The copy of the letter in Mr.
Lee's file is to remain in his custody and control. The
other aspect of the discipline that was imposed on Mr.
McKinnon is his assignment to 2B. It was Mr. Ryder's
submission that the appropriate remedy is monetary
compensation as well as an order directing the Employer. to
post a notice of the Board's finding that Mr. McKinnon's
16
assignment to 2B was disciplinary in nature and was unjust.
We have reviewed the decisions submitted to us dealing
with the issue of damag.es. We are not convinced that
monetary damages are appropriate in the circumstances of
this case. A remedial order ought to be compensatory but
.ought not to be punitive. Mr. McKinnon suffered no. loss of
income as a result of the transfer to 2B. However, this
transfer subjected him to a public punishment' before his
co-workers and supervisors. It is this public punishment
that ought to be remedied. It is our view that the
appropriate remedy in this case is an order directing the
Employer to post a notice in t.he 'following form:
in the fall of 1989, Mr. ~'ichael McKinnon,
Corredtional Off'{cer, 'was assigned to ' '
2B for a peri. od of approximately three and
one-half months. The Ontario Crown Employees
Grievance Settlement Board found this
assignment to have been disciplinary and
that the discipline was imposed without
just cause. This notice is posted pursuant
to the direction of the Board.
In accordance with the foregoing, the grievance is
allowed. We have determined that Mr. McKinnon was
disciplined without just cause. All copies of the letter
of October 12, 1989 in the possession of the Employer,
except for the copy in Mr. Lee's file, are to be destroyed.
The Employer is to post the notice referred to above for
seven consecutive days. It is to be posted in a prominent
place at the institution, where it may be observed by Mr.
McKinnon's co-workers and his supervisors. The Board will
remain s~ized in the event that the parties experience any
difficulties in the implementation of this decision.
Dated at Toronto, this 22day of January, 1992
S. L. Stewart - Vice-Chairperson.
,-'~L/~'.~/ ~ho~so~- ~er
M. F. O'Toole - Member