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HomeMy WebLinkAbout1989-1818.Semeniuk.90-07-11 I RECE V'E"D i ONt'AR[O EMI:Y. OY~:'$ DE LA COURONNE CROWN EMPL OYEES DE L'ONTARJO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS - DUNDAS STREET WEST, TOF~ONTO, ONTABtO. MSG IZE- SUITE 2100 TELEPHONE/T~'L/ZPHONE RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG tZ8- BUREAU 2100 (4'16)598.0688 1818/89 IN THE MATTER OF AN'ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Semeniuk) Grievor - and - The Crown in Right of Ontario (Minist.ry of Correctional Services) Employer - and - BEFORE: W. Kaplan Vice-Chairperson J. Laniel Member M. O'Toole Member FOR THE M. Reran GRIEVOR: Grievance Officer Ontario Public Service Employess Union FOR THE S. Wilson EMPLOYER Counsel' Mathews, Dinsdale & Clark Barristers & Solicitors HEARING: June 6, 1990 2 By a grievance dated January 8, 1990 Michael Semeniuk grieves "unfair and unjust discipline where as I was suspended two (2) days without pay." Most of the facts in this case are not in dispute. The grievor works as a Correctional Officer at the Quinte Detention Centre in the Young Offenders Unit. On the evening of November 4, 1989 the grievor was responsible for locking the young offenders' in their respective cells in the East Wing Corridor. Doug Thomson, the Young Offender Unit Manager, testified as to the bedtime lock-up procedure that is followed in the Young Offender Unit. The procedure begins by the Correctional Officer determining the bedtime for the different Young Offenders subject to his or her superVision. Young Offenders will be locked in their cells at 8:00 p.m., 9:00 p.m., 10:00 p.m., and 10:30 p.m. depending on their~ behaviour. The best behaved can stay up the longest; the worst behaved are put in their cells at 8:00 p.m. Correctional Officers are responsible for determining which young offenders go to bed at which time, and they do so by referring to the Incentive Level Board. This board is located to the right of the staff control office desk, as is the Cell Location Board. Once the bedtime and cell location have been determined, the Correctional O~ficer enters the Dayroom area. This is a common 3 area used by the Young Offenders. Another Correctional officer lets him or her in and acts as a back-up. The Dayroom is adjacent to the cells. In general, two young offenders are housed in each ~cell. If both have the same bedtime, they will both be escorted by the Correctional Officer to their cell. Otherwise, the young offenders are locked up one at a time. After the door is locked, the Correctional Officer checks it by pulling on it. Once the lock-up is completed, the Correctional Officer makes a walk with a watchman's key-punch clock. On the night of November 4, 1989 the grievor checked the Cell Location Board and wrote down the names of the inmates scheduled for lock-up at 9:00 p.m. Two inmates, Young Offender "A" and Young Offender "L", were scheduled for lock-up in Cell 3. The grievor entered the Dayroom and. put Young Offender "A" in Cell 3. This is where Young Offender "A" belonged. However, Young Offender "L" advised the grievor that his cell had been changed and that he was now housed in Cell 4. The grievor took him at his word and put him in'Cell 4. As was his practice and the custom, the grievor checked the locks on both doors and did the walk. Another lock-up was scheduied at 10:00 p.m. This time it was conducted by Correctional officer Jessica Beaton, who was then a junior probationary employee. Ms. Beaton put Young Offender "F" in Cell 3 when he should have been put in Cell 4. And at 10:30 4 p.m. Ms. Beaten put Young Offender "J" in Cell 4 where he belonged. As it turns out, Young Offenders "L" and "J" had conspired to break out of Quinte, and they "muscled" Young Offender "F" into going along with their plan. Cell 4 was the .preferred spot from which to attempt to break out because there was a problem with the lock on the door. Around 11:10 p.m. the griever heard a loud banging coming from the East Wing Hallway. The griever determined that the loud banging was coming from Cell 4, and he noticed the door was moving, as if the result of someone kicking it. In his report filed just after midnight on November 5, 1989, and his testimony at the hearing, the griever describes what happened next. After hearing the loud bangs the griever attempted to contact a superior officer, Lieutenant Shorts. He was unavailable as he was conducting the lock-up in the maximum security ~re~. Around 11:25, the griever heard some more loud banging; again it appeared as if someone was kicking at the door. Moreover, he noticed an arm come out ~nd check the lock. The griever decided to investigate. 5 He went to the cell area and found both young offenders in bed as if nothing had happened. He noticed, however, that the metal plate on the door appeared~ loose and bent outward. He then secured the Dayroom door and returned to his desk and called for the Lieutenant and asked for back-up. When the back-up arrived the door to Cell 4 was opened and the damage to the door examined. The latch was severely damaged, so much so that it could be removed with a finger. One screw on the latch was completely severed. The two young offenders were placed in a segregation cell. The grievor then sat down to write his report, and in the process of doing so he realized that a cell switch had taken place. He asked Young Offender "F" about it, who advised the grievor that he had been forced into going along with the switch. All of this was included in the grievor's report along with the grievor's conclusion that the switch had been deliberately engineered in order to facilitate the unsuccessful escape attempt. During the ensuing investigation Mr. Semeniuk explained to the employer, that in accepting "L's" word about the cell switch he was attempting to develop a trust relationship with him. Moreover, Mr. Semeniuk explained, he wished to complete his rounds. Following this incident a disciplinary meeting was held. 6 Mr. Semeniuk was questioned about his behaviour on the night of November 4th by Ms. Kim Gallow, the Deputy Superintendent and Mr. Doug Thomson. He acknowledged responsibility for the incident and he also indicated that it would not happen again. The employer was particularly concerned about the grievor taking Young Offender "L's" word as to the cell .in which he was housed. Mr. Semeniuk openly admitted that he made a mistake. Mr.. Thomson testified that establishing good communication with young offenders was important, but security came first and in taking "L's" word about the cell switch the grievor lost sight of that fundamental fact. In Mr. Thomson's words, communication means listening, interaction and relationships with the young offenders, but does not extend to trusting them. For her part, Ms. Gallow, a master's graduate in criminology who had joined Quinte as the Deputy superintendent in April 1989, agreed with Mr. Thomson about security coming first. She also testified about some of the security problems that could arise by inmates being placed in the wrong cells. Obviously, escape attempts, such as took place here, become possible. Some such attempts could succeed, hostage taking could result, and other undesirable consequences could occur. Aside from these concerns, and the union agreed that they were serious ones, Ms. Gallow testified that the institution must know at all 7 times who is in what cell. It is extremely important that prisoners be in the cell assigned to them. The Board shares all of these concerns. In the end, discipline was imposed by Ms. Gallow in consultation with the Superintendent. This was the first time Ms. Gallow had imposed discipline on a Correctional officer since joining the institution some seven or eight months earlier. She discussed the discipline with the Superintendent' and then wrote Mr. Semeniuk a letter advising him that he had been suspended without pay for three days. The letter said, in part,: "A person of your experience, training,- and continued involvement with young offenders should have demonstrated better judgement by following the lock up procedures'and placing the young' offenders in their designated cells. Your lack of proper judgement in this incident jeopardized the security of the institution, the safety of staff and young offenders." The letter also made reference to the grievor being naive in trusting young offenders and it expressed the hope that Mr. semeniuk had learned from this experience and would continue to perform his duties in his "usual high calibre." The letter concluded: "It is because of your dedicated and excellent service that I have chosen not to discipline you more severely." 8 After the letter awarding Mr. Semeniuk a three-day suspension was issued it came to the attention of the Superintendent. He realized that a mistake had been made, and that in fact two days was what he had agreed upon in his discussion with Ms. Gallow. A revised suspension letter was issued. Ms. Gallow testified that the grievor's long-term service and good record were taken into account in determining the penalty, and that, in 'fact, more serious penalties were discussed. Ms. Gallow testified that the suspension was .for placing the. young offender in the wrong cell and for trusting the young offender. Ms. Gallow also testified that in the disciplinary interview the grievor indicated that he believed that trust took priority over security. When he testified, Mr. Semeniuk denied this and indicated that he believed that security always came first, and that in taking "L's" word he was not breaching security. It is noteworthy that the other guard .involved, Ms. Beaton, also received a two-day suspension. Ms. Gallow explained that she received a two-day suspension because she did not base her mistake on trust. She just made a mistake. As a junior employee, the two-day suspension was appropriate to her ~ircumstances. As a senior employee with a good record who made a mistake and did so as a result of relying on an inappropriate criterion, namely trust, a two-day suspension was appropriate to the grievor's circumstances. Ms. Gallow was particularly 9 concerned that Mr. Semeniuk did not appear to appreciate the significance of his misplaced and inappropriate trust. Ms. Gallow testified that developing a relationship with inmates was appropriate for Correctional officers, but never at the expense of security. In his annual appraisal for the period prior to the grievance (January 1, 1988 to January 31, 1989) Mr. Semeniuk received an "exceptional" rating for security meaning: "Initiates as appropriate, extra searches, counts. Alert at all times; varies patterns. Possesses a security intuitiveness." The appraisal also stated, among other things, that Mr. Semeniuk was "an asset to the Y.O. Unit." The grievor testified that when he put "L" in his cell, he checked it manually to ensure that it was locked. The grievor agreed that it was wrong not to verify the information "L" was providing to him prior to acting on it~ but he said that he did not breach security in the result. He placed the prisoner in a locked cell. Mr. Thomson, Ms. Janice Thompson, a Correctional Officer called to testify for the union, and the grievor all testified that cell changes were not uncommon. Ms. Thompson also testified that as part of developing trust with an inmate she would have accepted his word about the cell change, but would have verified it by referring to the Cell Location Board. The grievor also testified that he does not "trust" any of the inmates, but that he attempts 10 to develop trust with them by taking their word when it is appropriate to do so, and that means never when security is at stake. In his words: "Security is always a top priority for me and it will continue to be." Mr. Semeniuk also testified that he recognizes that he made a mistake on November 4, 1989 and that he has learned from it. He does not dispute the fact that some discipline is in order; he just grieves the discipline imposed as being excessive. While some evidence was led at the hearing in regard to the functioning of the lock on Cell 4, and repairs being done to it, what is important for the purposes of this case is the fact that when Mr. Semeniuk locked "L" in that cell he thought it was working, and ~e verified that by checking it manually. There was no reason, therefore, for Mr. Semeniuk to think that security was being jeopardized by putting the young offender in Cell 4 rather than Cell 3. obviously, Mr. Semeniuk did not know at the time that an escape was planned. An escape attempt did, however, take place, and the attempt was facilitated by Mr. Semeniuk's mistake. The question for this .board is whether the discipline imposed is just, there being no question that some discipline was warranted. 11 On the one hand, the potential seriousness of the mistake must be taken into account. While the attempt fortunately failed, dire consequences could have resulted. On the other hand, cell changes were not uncommon, and in taking the young offender's word and locking him a cell which he thought was secure, the grievor can not be said to have knowingly put security at risk. Moreover, he is a 21 year employee with a good record and a~high security evaluation. Counsel for the employer urged us to uphold the discipline and he cited OPSEU (Picard) 825/84 and 826/84 (Knoph), OPSEU ¢Czerniakl 0688/85 (Delisle) and Essex Terminal Railway, 20 L.A.C. (3d) 1 (MacDowell) in support ~f his submission. In Picard a five-day suspension was upheld by this Board, while in Czerniak a twenty- day suspension was upheld. Essex Terminal Railway stands in part for the proposition that the degree of carelessness is not to be judged or based on the extent of the damage that occurred, and Mr. Wilson argued that this principle should be borne in mind in assessing the penalty imposed by the employer in this case. For the union, Mr. Bevan pointed out that the Picard case involved this Board upholding a five-day suspension given to a Correctional Officer responsible for allowing an inmate to escape, and Czerniak was also an escape case. Obviously a 12 successful escape is a far more serious offence than that which took place here. Moreover, Mr. Bevan argued that the degree of damage was a relevant criterion in assessing the penalty. Mr. Bevan also cited a number of cases to us in which panels of this Board have mitigated disciplinary penalties. Ultimately, these cases must be decided on their facts, and with reference to certain general principles. Mr. Semeniuk immediately admitted his error and indicated that the mistake would not happen twice. Mr. Semeniuk's demeanour on the witness stand, his long service, and his previously exceptional security rating all impressed the Board. We are confident that the mistake has been recognized and will not be repeated and that the grievor will continue to render valuable service to the Ministry. In our view, a letter of reprimand is the appropriate and just result given the grievor's seniority, good work record and the nature of his mistake. A letter of reprimand will formally put the grievor on notice that such mistakes will not be tolerated in the future and will indicate to him that a progressive approach to discipline is being adopted. A letter of reprimand is an appropriate first step in that approach. 13 Accordingly, we order that the two day suspension be rescinded and that the grievor be made whole for lost wages and benefits. Any reference to the suspension must be removed from the employer's records. We further order that a letter of reprimand be issued to the grievor with respect to his error on November 4, 1989. We retain jurisdiction to deal with any matter arising out of the implementation of this award. Dated thisllday Of 3uly1990. ~illiam Kaplan Vice Chairperson J. Laniel Member "I DISSENT" (Dissent attached) M. O'Toole Member DISSENT 1818/89 OPSEU (Semeniuk) Ministry of Correctional Services The majority are persuaded that a case has been made for interfering with the penalty imposed by the employer. I regret I cannot agree. In my opinion, the reasoning of the majority is flawed in several respects. These are: 1.) they mischaracterize the nature of the misconduct relied on by the employer as grounds'for its penalty; 2.) they fail to pzoperl¥ appreciate the true nature and extent of the security risk posed by the.grievor's misconduct; 3.) they mitigate the penalty imposed by the employer on the basis of either inappropriate factors or factors already~ considered by the employer in arriving at such penalty. I shall address each of the above matters seriatim The Grievor's Misconduct It is clear from the letter of discipline and from the Majority's summary of Ms. Gallow's evidence that the misconduct for which the Grievor was disciplined is two fold: 1.) He did not follow established lock up procedures which required young offenders to be placed in their designated cells; 2.) He trusted a young offender; The majority appear to be quite satisfied that the above misconduct occurred. Nevertheless at page 11 they emphasize that the grievors did not "knowingly put security at risk". This implies that the .grievor was disciplined by the 'employer for acting "knowlingly". This is clearly not the case . The misconduct upon which the employer relied to justify its discipline~ can only be characterized as negligence or carelessness by the Grievor in the performance of his duties. Specifically, the Grievor had a duty to take care to observe established lock-up procedures. This he admitted he had failed to do. Further, it was reasonably foreseeable that a risk of harm to the security of the institution could result from such failure. The G£ievor's lack of care was, therefore, culpable and serious even if he did not act knowlingly. The Security Risk The majority at page 10 find as follows: "what is important for the purposes of this case is the fact that when Mr. Semeniuk locked 'L' in that cell he thought it was working, and he verified that by checking it manually. There was no reason, therefore, for Mr. Semeniuk to think that security was being jeopardized by putting the young offender in Cell 4 rather than Cell 3. Obviously, Mr. Semeniuk did not know at the time that an escape was planned". In my opinion the foregoing considerations are not particularly important in assessing the seriousness of the security risk resulting from the Grievor's misconduct. What is important, and in fact is recognized by the majority at pages 6 & 7, is that placing inmates in the wrong cell per se creates security risks by facilitating escape attempts. If true, then it necessarily follows that the most secure cell in physical terms can be rendered insecure by placing in it 2 inmates who are conspiring to escape. But for such placement, the inmates would not have the opportunity to attempt escape in concert. That was exactly the situation resulting from the Grivor's negligence'and the security risk inherent in the situation is not in any way altered by the Grievor's subjective beliefs as to the physical state of a cell's lock mechanism. The Appropriate Penalty The majority at page 12 subsitute a letter of reprimand for the two day suspension imposed by the employer on the basis of the following factors. a) the Grievor's seniority; b) his good work record in par.ticular his exceptional sec~kity rating; c) the nature of his mistake; d) the Grievor's recognition of his mistake; e) ~ progressive approach to discipline. It is clear from the concluding paragraph of the letter of discipline quoted at page 7 and from Ms. Gallow's evidence summarized at page 8, that factors a) to c) above were weighed by the employer in its determination of the penalty. Accordingly,. it is submitted that it is improper for the majority to now rely on such factors to further reduce the penalty imposed ~by the employer. With respect to factor d) it is submitted that the evidence is, at best, ambiguous. The Grievor in his testimony steadfastly maintained that he had not "trusted" a young offender but had only "taken his word". It is submitted that there is little if any, difference between these two terms and that the Grievor's attempt to distinguish them is little more than pure sophistry. The majority, nonetheless, appear to "buy" the distinction. In my opinion, however, it is too shaky to support the conclusion that the Orievor has recognized his mistake. With respect to factor e) it is submitted that normally the first step in a progressive disciplinary system is a warning, either verbal or written. However, progressive discipline is a flexible concept; the nature and consequences of some misconduct will necessitate a suspension as a threshold measure. Given the nature and consequences of the Grievor's negligence, a period of suspension is just and reasonable. Moreover, a 2 day suspension is still a relatively minor penalty. In addition, it is entirely consistent with the purpose of progressive discipline. AS noted in Re: Alcan Smelters & Chemicals and Smelter Workers; 12 L.A.C. (3d) 324 (Hope) at page 329" The major thrust of progressive discipline is that it must be corrective, not only with respect to the employee who is disciplined, but with respect to other employees in the bargaining unit". For the foregoing reasons I would have dismissed the grievance.