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HomeMy WebLinkAbout2014-2618.Conry.16-08-12 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2014-2618 UNION#2014-0517-0023 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Conry) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE David Williamson Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel HEARING January 6, May 27, September 24, October 2, October 14, 2015; April 11, April 19, June 20, 2016 - 2 - Decision [1] On August 14, 2014, Mr. Stephen Conry was dismissed from his employment as a Correctional Officer (“CO”) at the Metropolitan Toronto West Detention Centre (MTWDC) by Superintendent Tom O’Connell as a result of an incident that took place on October 5, 2013. Mr. Conry commenced work as a Correctional Officer in 1992 at MTWDC at the age of thirty-one and has worked solely in this facility. At the time of the incident Mr. Conry was fifty-two years of age and had worked at MTWDC for twenty-one years with an absolutely clean work record. [2] Mr. Conry’s employment was terminated for using unjustified and excessive force on two inmates on October 5, 2013, for not reporting this excessive use of force, and for not being truthful during the course of the subsequent investigation. Mr. Conry was dismissed from employment during the course of a meeting he attended on August 14, 2014, with Superintendent Tom O’Connell, Acting Deputy Superintendent Trevor Dunscombe, and Union Representative Dan Marshall. This Result of Allegation Meeting followed the completion of an Investigation Report by the Correctional Investigation and Security Unit (CISU) that had been initiated on October 25, 2013 by David Hatt, Regional Director Central Region, upon the request of Superintendent O’Connell. On August 14, 2014, CO Conry filed a grievance against his termination of employment. [3] Mr. Conry’s grievance came to be heard at arbitration at which time he did not dispute the Employer’s finding that he used excessive and unjustified force on two inmates in the course of his duties on October 5, 2013. As such, with the use of force incident not needing to be proved, the central issue at the hearing became that of the appropriateness of the penalty of discharge. It is the position of the Employer that Mr. Conry’s dismissal should be upheld. It is the position of the Union that Mr. Conry has been a very good employee with an outstanding work record, that the work relationship has not been irreparably broken, that Mr. Conry is genuinely remorseful for what has taken place, and that a substantial suspension without pay should be substituted for the termination with Mr. Conry being returned to a position with the Employer. - 3 - [4] Evidence was heard on the particulars of the incident and on matters specific to the grievor’s work record and personal life that would serve as mitigating factors. Entered into evidence were written documents relating to the incident and the subsequent investigation, a video clip of the incident, and the viva voce evidence of CO Stephen Conry, his wife Karen Conry, and that of Deputy Superintendent Trevor Dunscombe. [5] The evidence discloses that on October 5, 2013, the day of the incident, Mr. Conry was working his regular assignment as an inside officer at living unit 2B at MTWDC when a fight broke out between two inmates. Mr. Conry asked them to stop but they continued to fight. To break up the fight Mr. Conry initiated a code blue to have all available officers come to his assistance. The video shows that after the fight was stopped Mr. Conry escorted inmate Gibson out of the unit and while in the sally port he delivered with a closed fist two swift blows to the head of inmate Gibson before handing him over to other officers to be escorted away. He then returned to escort inmate Mendez out of the unit. Upon entering the sally port CO Conry then pushed inmate Mendez up against the wall and twice struck inmate Mendez in his upper body before passing him off to other officers to be removed from the area. The whole incident was over in a very short time. [6] On October 5, 2013 CO Conry submitted an occurrence report to his manager at the time of the incident, SGT Bazger. There was no reference in this report to any use of force applied by Mr. Conry or any other officer. On October 15, 2013, Correctional Officer Ms. W who had been involved in breaking up the fight between the two inmates told Mr. Conry that she was about to file an addendum to her October 5th occurrence report and state that Mr. Conry had used unnecessary force during the incident on October 5, 2013. Also on October 15th SGT Bazger asked Acting Deputy Superintendent Dunscombe for permission to suspend Ms. W because she had submitted an occurrence report that contained lies about the conduct of SGT Bazger and CO Conry on October 5th. Following this request Mr. Dunscombe viewed the video recording of Mr. Conry and his use of force in the incident involving inmates Gibson and Mendez on October 5, 2013. - 4 - [7] On October 16th Mr. Conry filed an addendum to his occurrence report of October 5th in which he referenced that he had applied force to inmates Gibson and Mendez, but that was not fully accurate nor complete. In this addendum Mr. Conry stated that he had held inmate Gibson against the window in the sally port to gain control and wait for backup officers to arrive, and that in the case of inmate Mendez he had offered a backhand distraction when escorting him through the sally port. On October 16, 2013, Mr. Conry was suspended from duty pending investigation. SGT Bazger was also suspended. [8] Subsequent to October 16, 2013, Superintendent Tom O’Connell referred the matter of the October 5, 2013 incident to be investigated by Correctional Services Oversight & Investigations (CISU) and a team of inspectors from this unit then interviewed a large number of people connected with the incident as to what they knew, saw, and did. CISU submitted their final investigation report on May 2, 2014. [9] Mr. Conry was interviewed by two inspectors from CISU on December 11, 2013 and provided a voluntary statement. At this interview he admitted he had used force on inmate Gibson and inmate Mendez and had not initially reported it. Mr. Conry told the inspectors that inmates Gibson and Mendez were fighting and continued to fight while he told them several times to stop. He then took hold of inmate Gibson and another officer took hold of inmate Mendez and separated the two men who then continued to yell at each other. He said the tensions were high between the two men as he escorted inmate Gibson towards the sally port. He stated that in the sally port he pushed inmate Gibson against the glass to restrain him and struck this inmate two or three times with an open hand to get his attention and gain control of the situation before he passed inmate Gibson to another officer to be escorted out of the unit. Mr. Conry told the inspectors that he had been assaulted in the past by inmates in this institution and that he was not going to let his guard down with this inmate. Mr. Conry advised that he then returned to the unit and took hold of inmate Mendez and proceeded to escort him out of the unit as well. On entering the sally port inmate Mendez tensed up and resisted when he caught sight of inmate Gibson in an adjoining room and Mr. Conry stated that in response he struck inmate Mendez with a couple of open hand distractions to the side - 5 - of the head to maintain control of the situation. In this interview Mr. Conry expressed regret for striking the inmates and for the way he controlled them as he escorted them out of the unit, and for not correctly reporting the incident on the occurrence report. He told the inspectors that he made a bad call and expressed remorse for what he had done. [10] On June 2, 2014, Mr. Conry was asked to attend an Allegation Meeting to be held on June 16, 2014. During this June 16th meeting he saw for the first time the video recording of the October 5, 2013 incident. At the start of this Allegation Meeting, and before he saw the video, Mr. Conry read a statement to Mr. O’Connell and Mr. Dunscombe in which he acknowledged that he used force on both inmate Gibson and inmate Mendez and that in the absence of injuries to either inmate he downplayed the incident when reporting it. He emphasized that his actions that day were unprofessional and out of character as to how he performs his duties at work, that he was remorseful, and very much regretted losing control of himself during the incident on October 5th. He said he had been truthful to the best of his recollection at the meeting with the investigators held on December 11, 2013. Mr. Conry’s chosen Union Representative was also present at this meeting. [11] Mr. Conry testified he had taken verbal abuse from inmates on a daily basis over several months prior to the incident on October 5th because inmates had been locked in their cells for extended periods of up to twenty-four hours at a time without getting showers, phone calls, visits, and fresh air, and that when inmates Gibson and Mendez ignored his orders and would not stop fighting it somehow resulted in him losing control and acting out of character. He said he had been assaulted in the past by several inmates that caused him injuries including a broken orbital bone, a mild concussion, and a broken finger, although he had no reason to use force on inmates Gibson and Mendez as they had done nothing to him. [12] On May 2, 2014 CISU submitted their final investigation report. In relevant part it found that CO Conry punched inmate Gibson with a closed fist in the sally port and that this force was unjustified and therefore excessive; that the action by CO Conry of - 6 - pushing inmate Mendez up against the wall inside the unit was unnecessary and therefore excessive; and that CO struck inmate Mendez in the sally port with either an open hand or closed fist and that this force was unjustified and therefore excessive. The investigation found that in relation to the matter of the reporting of this incident that the practice of MTWDC staff writing reports only when requested by a Sergeant contributed to this incident of excessive use of force going unreported for ten days. The investigation also found that SGT Bazger was aware that force was used in this incident and failed to manage the incident when he did not direct all the staff in the area to submit occurrence reports; that he did not ensure the incident was reported as a use of force; and that he did not take any action when he saw that the report from CO Conry did not include the use of force that occurred in the sally port. [13] Mr. Conry’s employment was terminated during the course of the meeting on August 14, 2014, by Mr. Tom O’Connell, following discussions that had earlier taken place between Mr. O’Connell, Mr. Dunscombe, and the Regional Director, Mr. David Hatt. The letter of termination to Mr. Conry dated August 14, 2014 sets out the following grounds for his dismissal: You used excessive force on an inmate in that: You punched inmate Gibson with a closed fist in the sally port; this force was unjustified and therefore excessive. By pushing inmate Mendez up against the wall inside the unit you used unnecessary force and therefore it was excessive. You struck inmate Mendez in the sally port; this force was unjustified and therefore excessive. You covered up the use of force on an inmate in that; You omitted in your Occurrence Report that you used force against inmates Gibson and Mendez and thereby you failed in your duty. You were untruthful to the Employer during an investigation. [14] It is the evidence of Mr. Dunscombe that in cases where there is excessive use of force the outcome is discipline up to dismissal, and that in the matter of Mr. Conry’s incident the police would have been contacted had this been accurately reported. He testified that the non-reporting of events impacts the proper running of the institution and that one of their most difficult issues is that there exists generally a code of silence - 7 - among staff as they fear reprisals of various kinds if they come forward to disclose an otherwise unreported incident. [15] In cross-examination it is the testimony of Mr. Dunscombe that Mr. Conry has reported to him over the years both directly and indirectly and that he is an excellent Correctional Officer who knows his job well, who works extended hours without complaint wherever he is assigned, and that he performs his work well. He testified that Mr. Conry is a long-term employee who has more than twenty years of service as a Correctional Officer, who has never been disciplined in the past and who had an absolutely clean record prior to the incident on October 5, 2013. He said he considered Mr. Conry’s conduct in this incident to be totally out of character and that he regarded Mr. Conry’s expression of remorse at the June 16, 2014 meeting to be genuine and heartfelt. Mr. Dunscombe testified that he was of the view Mr. Conry believed he was being fully truthful in the investigation from the time of the start of the CISU investigation and agreed that he voluntarily disclosed his use of force on both inmates prior to the time that he was suspended in October 2013. Mr. Dunscombe said that he considered that it would be possible for Mr. Conry to return to work as a Correctional Officer and deliver the level of work that he did before this incident. He said that while the work relationship between the Employer and Mr. Conry was damaged as a result of this incident, he considered it would be possible to work past that. [16] It is the testimony of Mr. Conry that in his first Occurrence Report he downplayed what had taken place in the incident with inmates Gibson and Mendez on October 5th but that he did not tell or put pressure on anyone else not to report the use of force that had taken place. Mr. Conry stated in evidence that it is SGT Bazger’s practice for Occurrence Reports from Correctional Officers to go to him for review and language clean-up before they are passed on. It is Mr. Conry’s evidence that when he handed in his initial Occurrence Report SGT Bazger made no mention to him that the report was either incomplete or was downplaying the incident even though SGT Bazger himself was present at the incident on October 5th. Nor, said Mr. Conry, did SGT Bazger act surprised on October 16th when Mr. Conry submitted his second report on the incident in which he stated that he had used force on inmates Gibson and Mendez. - 8 - [17] In his testimony Mr. Conry expressed great remorse for what had happened. He said there was no excuse for him having struck inmates Gibson and Mendez and that he has never done this in twenty-two years of working at MTWDC. He said that neither his frustration with inmates Gibson and Mendez for continuing to fight when he told them to stop, nor the tension in the workplace from extended lockdowns, nor his having been assaulted by aggressive inmates in the past, provided any justification for his conduct. It is the evidence of Mr. Conroy that it was not until part-way through the June 14th meeting that he first saw the video recording of the incident, and that from the time of his suspension he has been totally forthright and honest to the best of his recollection, and owned up to his actions in both the investigation meeting in December 2013, the allegation meeting in June 2014, and at arbitration. [18] Mr. Conry testified that the termination of his employment has had a significant impact on him and his family, particularly financially, and especially in relation to expected pension and the cessation of health benefits. It is his evidence that arising out of his termination after twenty-two years of service his pension would be significantly reduced from what it would have been had he continued to work, as was his intention, for a further eight years. Mr. Conry testified that no longer having work-related health benefits has significantly impacted him, particularly in relation to taking care of the special needs for braces and therapy of their teenaged boy who has cerebral palsy with limited use of his right hand and right foot. [19] Karen Conry, wife of Stephen Conry, testified to the impact of the ending of Stephen’s health benefits on their family and spoke also to her husband’s character. Karen Conry is a Rehabilitation Officer who interviews inmates for release into the community. Until quite recently she worked as a Correctional Officer at MTWDC for twenty five years but never worked directly with Mr. Conry. She testified that she and Mr. Conry and their collective seven children came together as a family some seventeen years ago after her husband left following her giving birth to twin boys eighteen years ago; one of whom had no vital signs and one who sustained lack of oxygen at birth that resulted in him having cerebral palsy. With injury to the left side of his brain she said all her son’s functions on the right side of the body are affected and, - 9 - while he is self-ambulatory, he needs assistance with dressing, feeding, and mobility. Ms. Conry testified that the financial impact of Mr. Conry’s termination, and the concurrent cessation of health benefits, has been devastating to the family. She said her son needs special leg braces, injections every eight months costing $2400 to relax the muscles, and a wheelchair and walker. Before his termination, testified Ms. Conry, Mr. Conry would work overtime to enable her to have more time with her son and the other two children who are still at home. [20] In speaking to Mr. Conry’s character, Karen Conry testified that he is a man of fine character who did not hesitate in taking on the foregoing family challenges some seventeen years earlier and since. It is Ms. Conry’s evidence that a number of years ago she made a living will and that Mr. Conry readily agreed that, if necessary, he would take care of all the children. She also testified that several years ago when she agreed to donate a kidney to a co-worker in need, her husband then took two months off work and became the primary care giver for the whole family. Ms. Conry added that they have an excellent family life and that her husband is generous to a fault. [21] It is the submission of the Employer that Mr. Conry’s termination should be upheld. It submits that the evidence is clear and undisputed that Mr. Conry applied force to two inmates on October 5, 2013, and that it was an unjustified and excessive use of force. In addition, submits the Employer, Mr. Conry did not report the use of force in his October 5th occurrence report and thus tried to hide it. Further, that in an addendum to this report on October 16th Mr. Conry was not totally forthcoming as he continued to downplay his use of force in this matter, and that he wrote the addendum only because he learned another CO had brought the matter to light by reporting the incident. As such, argues the Employer, Mr. Conry did not make a full and forthright admission of his conduct. In all, the Employer submits, Mr. Conry’s actions have resulted in a fundamental breach of trust in the working relationship between employer and employee. [22] In support of its position and submissions the Employer made reference to the following arbitral authorities: Re Ontario Public Service Employees Union (Beltrano et - 10 - al.) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB Nos. 2003-3597, etc. (Petryshen – August 11, 2008); Re Ontario Public Service Employees Union (Esser) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB Nos. 2011-3658, etc. (Watters – December 14, 2015); Re Ontario Public Service Employees Union (Horan) and The Crown in Right of Ontario (Ministry of Public Safety and Security), GSB No. 0670/01 (Herlich – October 23, 2002); Re Ontario Public Service Employees Union (Gallina) and The Crown in Right of Ontario (Ministry of Children and Youth Services), GSB No. 2009-2825 (Fisher – February 24, 2011); Re Ontario Public Service Employees Union (Gour) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2014-4668 (Misra – March 8, 2016); Re Ontario Public Service Employees Union (Maude) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB Nos. 2014-3306 and 2014-3748 (Petryshen – March 14, 2016); Re Ontario Public Service Employees Union (Wild) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB Nos. 2011-2731 and 2011- 2808 (Harris – March 29, 2016); and to Re Alberta Union of Provincial Employees v. Lethbridge Community College, 2004, SCC 28. [23] It is the position of the Union that Mr. Conry engaged in serious misconduct in using excessive and unjustified force against inmates Gibson and Mendez and that this warrants a disciplinary response from the Employer, but not termination. The Union submits that the GSB arbitral jurisprudence demonstrates that the use of excessive force on an inmate by an officer does not result in automatic termination, but that the appropriate disciplinary response depends on the nature of the use of force incident and the mitigating factors. It is the submission of the Union that the Maude case serves as a useful benchmark in that Mr. Maude was reinstated in a situation where the excessive force used by Mr. Maude was more serious than here. The Union seeks that Mr. Conry be reinstated to the work force with a suspension and loss of wages but continuing seniority. - 11 - [24] The Union notes that prior to being suspended Mr. Conry came forward with a voluntary addendum to his initial occurrence report and acknowledged his use of force. He has continued this acknowledgement, submits the Union, both during the CISU investigation and at arbitration and thereby obviating the need for the Employer to prove Mr. Conry’s use of excessive force with clear and cogent evidence over many days of arbitration. It is the submission of the Union that there is no evidence that Mr. Conry pressured any other officer to not report the incident or that he sought to persuade Ms. W not to file her addendum report, and that whatever Mr. Bazger may have done in relation to the reporting of this incident is irrelevant. [25] Additionally, the Union submits that Mr. Conry’s conduct during the incident of October 5, 2013, is totally out of character for a man with a more than twenty year unblemished and totally discipline free work record. Further, that Mr. Conry has owned up to what he did both at arbitration and at the investigation, and that he has expressed his remorse for his conduct to the Employer. Further, the presence of a pension is important for a man who is fifty-four years old and about six years away from retirement, as also is having health benefits where he has a son with special needs, and that these factors should be considered as mitigating factors. It is the submission of the Union that the evidence shows that Mr. Conry is a very good officer who was honest and forthright in his answers and who could, by the testimony of Deputy Superintendent Dunscombe, be able to return to work as a Correctional Officer. The work relationship here, argues the Union, is not one that is beyond repair. [26] In support of its position and submissions the Union made reference to the following arbitral authorities: Re Ontario Public Service Employees Union (Maude) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB Nos. 2014-3306 and 2014-3748 (Petryshen – March 14, 2016); Re Ontario Public Service Employees Union (Gour) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2014-4668 (Misra – March 8, 2016); Re Ontario Public Service Employees Union (Gallina) and The Crown in Right of Ontario (Ministry of Children and Youth Services), GSB No. 2009-2825 (Fisher – February 24, 2011); and to Re Ontario Public Service Employees Union - 12 - (Marshall et al.) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB No. 2012-1308, 2012-1309, and 2012-1310 (Abramsky – September 16, 2013). [27] It is not in dispute that, on October 5, 2013, Mr. Conry struck inmates Gibson and Mendez as he escorted them out of the unit after breaking up a fight and then did not report, as he was required to do, this use of force on the Occurrence Report he filed that day. Mr. Conry agreed that he had downplayed the incident in his report as the inmates were not injured and had not complained of how they were handled. Clearly, Mr. Conry’s conduct that day provided the Employer with just cause to discipline him. The central issue in this arbitration is whether, in all the circumstances, Mr. Conry’s behavior on October 5th and his subsequent related conduct, warranted the termination of his employment. [28] Eleven days after the foregoing incident, on October 16th, Mr. Conry voluntarily filed an addendum to his October 5th Occurrence Report and stated that he had applied force to both inmates Gibson and Mendez in the course of escorting them out of the unit. The filing of this addendum was brought about when he was informed on October 15th by Ms. W that she was about to submit a revised Occurrence Report about the events of October 5th which would disclose Mr. Conry’s use of force on inmates Gibson and Mendez. Mr. Conry, to his credit, did not try to suppress this report from being submitted but instead promptly filed his addendum and owned up to his misconduct. While in this addendum he downplayed the incident of October 5th, I am satisfied that it was not Mr. Conry’s intention to deny his misconduct. Indeed, he would have known that management would review the video recording of the events in unit 2B on October 5th after receiving Ms. W’s revised occurrence report of October 15th that referenced Mr. Conry’s use of force, and as such Mr. Conry had no incentive or reason to be other than truthful as to what had taken place. [29] The October 5th use of force incident was subsequently referred to CISU for investigation and Mr. Conry was interviewed by CISU investigators on December 11, 2013. At that time, some two months later, Mr. Conry again provided a voluntary - 13 - statement in which he admitted to the use of force against both inmates in the course of removing them out of the unit. While his report of what happened was broadly in agreement with the events captured on the video, there are discrepancies in the specific details. I note that when he made his statement to the investigators Mr. Conry was relying on his memory of events that passed quickly some two months earlier and that he did not see the video until the meeting in June 2014 when his employment was terminated. I am not able to find that because the details of his December 11th statement differed from those disclosed by the video that Mr. Conry was trying to mislead the investigation or suggest the use of force did not occur, as Mr. Conry had been consistent from October 16th onwards in admitting to the use of force against inmates Gibson and Mendes. I find that from October 16, 2013, Mr. Conry was seeking to be truthful to the best of his recollection and co-operative with the investigation. Accordingly, I find that Mr. Conry did not engage in culpable conduct from October 16, 2013 onwards. However, Mr. Conry’s use of force against inmates Gibson and Mendez on October 5, 2013, followed by his failure to promptly report this on an Occurrence Report warrants significant discipline. [30] Of the arbitral authorities referred to in submissions, the March 14, 2016, decision in Re Maude is of particular interest in relation to the present matter, on account of a number of similarities between the two cases. In Re Maude a Correctional Officer briefly struck an inmate in the head during the course of an incident and did not reference it in his Occurrence Report. Sometime later management noted that the content of Mr. Maude’s Occurrence Report did not match with what they saw on a video-recording of the incident and asked Mr. Maude to provide more information. Mr. Maude still did not reference this use of force in the requested addendum to his report. The first time that Mr. Maude acknowledged he had used undue force on the inmate was in his suspension meeting. He then continued to acknowledge this use of force both at the CISU investigation and at arbitration. On the basis of having admitted to his use of force on an inmate, and on account of the presence of a number of mitigating factors, Mr. Maude was reinstated by the Vice-Chair to an equivalent position but with a significant penalty. - 14 - [31] In two of the other use of force cases referred to in submissions, namely Re Gallina, and Re Gour, the allegations were not fully proven at arbitration and a significant suspension was substituted for the termination of employment. Both these cases differ from the fact situation in the instant matter where Mr. Conry owned up at an early stage to his unjustified and excessive use of force, and has expressed remorse for his conduct. [32] In the instant case, the issue to be addressed is whether it is just and reasonable in all the circumstances pertaining to this matter to substitute a different penalty in place of Mr. Conry’s discharge. An important factor taken into account by arbitrators in considering matters where there has been serious misconduct is whether the employment relationship has or has not been irreparably damaged. In addressing this question a number of factors are typically taken into account. Some of these include the grievor’s past work record, consisting of both length of service and disciplinary record; whether or not the misconduct is an isolated occurrence; whether the grievor promptly owned up to his misconduct or lied to the employer during the investigation and lied at arbitration; whether the misconduct was a premeditated matter or occurred on the spur of the moment; whether or not there was provocation for the grievor’s behavior; whether the grievor has recognized the gravity of his misconduct and expressed remorse; whether it appears to be more likely than not that the grievor will not reoffend; and any particular personal undue hardship that would result from termination. [33] Having considered the relevant factors, the evidence, and the submissions of counsel on this matter, it must be found that the employment relationship between Mr. Conry and the Employer has not been irreparably damaged and that it is reasonable and just to substitute an alternative and lesser penalty in place of the termination of Mr. Conry’s employment. The reasons for arriving at this conclusion are set out below. [34] At the time of the incident Mr. Conry had worked at MTWDC for twenty-one years with an absolutely clean work record. It is not that he had no discipline on his record because of the working of the sunset clause, it is that he had never been reprimanded - 15 - or disciplined in twenty-one years of work. Such an excellent work record must be taken into account and count for something when considering in a time of difficulty for Mr. Conry whether alternative discipline should be substituted for the penalty of discharge. Not only does Mr. Conry have a long and discipline-free work history, the evidence at arbitration by Mr. Dunscombe’s evidence is that he is an excellent Correctional Officer who knows and performs his work well. [35] When Mr. Conry struck inmate Gibson and inmate Mendez, both acts were part of the same incident inside a short time period and arose out of Mr. Conry’s frustration and annoyance that they ignored his instructions to stop fighting. How Mr. Conry felt does not provide justification for this serious misconduct and Mr. Conry has acknowledged that and expressed remorse. It is clear that this is behaviour that is totally out of character in a long and unblemished work history and is an isolated and unpremeditated incident. Mr. Conry has undertaken that, should he be reinstated, he will not use unjustified and excessive force on an inmate again. [36] Mr. Conry owned up to his unjustified and excessive use of force on inmates Gibson and Mendez before he was suspended and, while it would have been better for Mr. Conry to have immediately admitted to his misconduct in his initial Occurrence Report, to his credit he did not attempt to suppress the truth from coming to light in Ms. W’s supplementary Occurrence Report several days later. It is my view that Mr. Conry has been truthful and forthright in the CISU investigation, during the subsequent Allegation Meeting, and in his testimony at the Arbitration Hearing. In this regard the instant case differs from those where a Correctional Officer has used excessive force and has continued to deny it. A review of the GSB arbitration cases put forward by the parties demonstrates invariably that termination of employment has been upheld where the excessive use of force by a Correctional Officer is proven and the grievor has denied that the use of force took place. In this regard see Re Horan, Re Beltrano, Re Esser, Re Wild, and the matter of CO Sidhu in Re Marshall. The facts in those cases are not the same as in the instant matter. - 16 - [37] It is two years since the time Mr. Conry’s employment as a Correctional Officer was terminated. This discharge has had a deep emotional and financial impact on Mr. Conry and his family. In particular, the loss of benefits in taking care of family members has been severe. Even greater, has been the loss of the opportunity to retire from work in a few years on a full pension after a long and previously unblemished career. These are both significant factors that favour and point to an outcome other than termination. [38] Not only has Mr. Conry admitted to his use of excessive and unnecessary force, he has apologized and expressed remorse for his misconduct from an early stage. At the Arbitration Hearing Mr. Dunscombe, Acting Deputy Superintendent at the time of the incident, testified that he considered Mr. Conry’s misconduct in this incident to be totally out of character and that he believed Mr. Conry’s apology and expression of remorse at the Allegation Meeting in June to be genuine and heartfelt. I note as significant the further uncontroverted evidence at arbitration of Mr. Dunscombe that, while the work relationship between the Employer and Mr. Conry was damaged by this incident, he was of the view that it would be possible for Mr. Conry to return to work as a Correctional Officer and for the Employer and Mr. Conry to work past this setback. [39] On the basis of all the foregoing I have arrived at the conclusion that the employment relationship between the Employer and Mr. Conry has not been irreparably damaged and that it is reasonable and just in all the circumstances to substitute an alternative and lesser penalty in place of the termination of Mr. Conry’s employment. [40] The authority to substitute an alternative penalty is provided by subsection 48(17) of the Labour Relations Act, 1995 in the following way: Substitution of penalty. - Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances. [41] The latitude of this authority in the instant case is, however, circumscribed by subsection 7(4) of the Crown Employees Collective Bargaining Act, 1993 which provides: - 17 - Restrictions on substituted penalties 7. (4) In substituting a penalty under subsection 48(17) of the Labour Relations Act, 1995, the Grievance Settlement Board shall not provide for the employment of an employee in a position that involves direct responsibility for or that provides an opportunity for contact with residents in a facility or with a client if the Board has found that the employee, (a) has applied force to a resident in a facility or a client, except the minimum necessary for self-defence or the defence of another person or necessary to restrain the resident or client; Definitions 7. (5) In subsection (4), “facility” means, (e) a correctional institution under the Ministry of Correctional Services Act, “resident” means a person who is an inmate, patient, pupil or resident in or is detained or cared for in a facility. Substitute penalty 7. (6) In substituting a penalty under subsection 48(17) of the Labour Relations Act, 1995 in circumstances in which it is restricted by subsection (4), the Grievance Settlement Board may provide for the employment of the employee in another substantially equivalent position. [42] On the basis of the foregoing legislation I have the jurisdiction as Vice-Chair of the Grievance Settlement Board to substitute an alternative penalty for Mr. Conry’s discharge, and return Mr. Conry to work with the Employer in accordance with subsection 7. (6) of the Crown Employees Collective Bargaining Act, provided that it is to a substantially equivalent position that complies with the restriction set out in subsection 7. (4) of this Act. I note that this restriction does not apply to the Employer and thus, as such, it is open to the Employer to place Mr. Conry into the same position upon his return to work that he occupied prior to his termination. [43] Accordingly, I am returning Mr. Conry to work with the Employer and reinstating him to a position substantially equivalent to that which he occupied at the time he was discharged. In so doing, I recognize in particular the evidence of Deputy Superintendent Dunscombe that he considers it would be possible for Mr. Conry to return to work as a Correctional Officer and deliver the excellent quality of work that he did before the October 5th incident. Mr. Conry has a long and previously unblemished work record and the evidence is that Mr. Conry is unlikely to repeat his misconduct. It is - 18 - quite apparent that the work relationship between the Employer and Mr. Conry, while damaged, has not been irreparably broken. As such, I would anticipate that the Employer will give due consideration to returning Mr. Conry into essentially the same position he occupied prior to August 14, 2014. [44] Mr. Conry is to be reinstated to work from the date of this decision, with full seniority, but without compensation for the period from August 14, 2014 to the date of this decision. The discharge shall be removed from Mr. Conry’s record and in its place shall be substituted a suspension from the date of his discharge to the date of his reinstatement. This is a substantial suspension that reflects the seriousness of the misconduct. I direct the Employer to reinstate Mr. Conry to work in a position that is substantially equivalent to that which he occupied at the time of his termination, but one that does not involve direct responsibility for inmates or provide the opportunity for contact with inmates. The matter is remitted to the parties to determine a suitable position. I will remain seized in the event there are any implementation issues that arise. Dated at Toronto, Ontario this 12th day of August 2016. David R. Williamson, Vice Chair