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HomeMy WebLinkAbout1991-0510.Straughan.93-04-30 ". : ONTARIO i. . .. ~,. CROWN EMPL 'J 'fEES DE L 'ON I'ARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 18:3 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MEG ~'Z,E TELEPHONE/T'~L'~'PHONE: (416j 326- I388 180, RUE DUNDAS OUEST, BUREAU 2;00, TORONTO (ONTARIO), M5G 1Z$ FAC$1MILE/T~Lc~COPIE .' (4~[6) 326-'1396 510/91 IN THE ~t?TBR OF ~J~ITI~TION Under THE CROWN EHPLOYEEB COLLECTIVE BARGAINING ACT Before THE GR[EV~.NCE SETTLEI~NT BOARD OPSEU (Straughan) Grievor - and - The Crown in Right of Ontario (Ministry of Community & social Services) Employer N. Dissanayake Vice-Chairperson P. Klym Member R. Scott Member FOR THE M. McFadden UNION Counsel Koskie & Minsky Barristers & Solicitors FOR THE K. Renison EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING September 18, 1992 DECISION The grievor, Mr. Jim Straughan, a correctional officer employed at the London Detention Centre for Youth, has grieved that he has been unjustly disciplined, and seeks a direction that the letter of reprimand in question be rescinded. The Centre is a security service centre for boys and girls under 16 years of age. The letter of reprimand was issued following an escape of 14 year old male youth resident "FD" on December 4, 1990. The evidence is that FD had injured a finger and had an appointment to have an x-ray at Victoria Hospital. The grievor and another correctional officer, Ms. Lisa Lyons were assigned to escort him to the hospital. FD was in the centre on eight different charges including break and enter, possession of a stolen vehicle, theft under $ 200 and failure to attend court. He was a repeat offender and had once before escaped from custody. He was classified as a maximum security risk. At the time, the grievor was aware that FD had been in the institute before, but not aware of the previous escape. Shortly after the grievor, Ms. Lyons and FD left the Centre for the hospital, the grievor's supervisor received information that FD may be planning to escape custody. While the evidence indicates that the supervisor had the means of warning the escorting officers via 3 cellular phone, for reasons not explained, the supervisor did not communicate this information. At the hospital the grievor opened the door to the x-ray room and looked around and was met by an x-ray technician, who told him that he will have to stay outside while the x-rays were being done. Accordingly, the grievor and Ms. Lyons posted themselves outside the door and~waited. The grievor testified that on two or three occasions he opened the door and could observe FD inside the room. However, the next time he looked in the technician inquired if FD was with him, because he could not be located inside the x-ray room. A search revealed that FD had escaped through a door located behind the x-ray technician's booth', which led to a hall-way. As a result of the escape Ms. Lyons was issued a non- disciplinary letter of counsel for breach of policy described as follows: Upon investigating this matter, it was apparent that you and your colleague did not maintain constant supervision on this young person while he was being X-Rayed. It is a policy at LDCY that escorting staff must maintain constant supervision of young persons at all times. The grievor received a disciplinary letter of reprimand, from Superintendent Mr. Owen McElhinney. It reads: In following through on a review of events that took place on December 4, 1990, I find you ( 4 were negligent as a "seasoned staff" in the escorting of a young person for medical treatment. It was apparent that you failed to maintain constant supervision and carry out the policies and procedures as outlined in our Policy and Procedures Manual. This letter of reprimand is issued in the hope that you will adhere to the standards of conduct expected of an employee of this Centre in the future. The escort policy relied on by the employer is contained in the Policy and Procedure Manual: Staff must ensure that certain security measures are followed at all times. These measures and guidelines function to minimize the risk of A.W.O.L. It goes without saying that residents escorted to and from outings and court appearances must be supervised very closely. For example, washroom visits by residents at court/outings must be supervised by staff. At no time m~ust a resident not be within reachin~ distance of escorting staff. (Emphasis added) Specifically, the employer claims that the grievor was disciplined for non-compliance with the obligation in the emphasized sentence to be "within reaching distance" of a resident at all times. The union while recognizing that resident escapes are a legitimate and serious concern, claims that the discipline imposed on the grievor was not justified in the particular circumstances. It is submitted that the policy was ambiguous and not consistently applied. Moreover, i~ is submitted that § the discipline was discriminatory because, other correctional officers in similar circumstances received no discipline. The union particularly relies on the fact that Ms. Lyons, the other officer on this particular escort, received no discipline. Reference was also made to an escape of a resident during a court visit. The two offiers who permitted an unsupervised washroom vist were not disciplined. Mr. McLellan was asked in direct examination why the two officers who were responsible for the custody of FD were treated differently for permitting the escape. His answer was "we felt here that Mr. Straughan was worthy of a reprimand because he had been a seasoned employee with many years of service and Ms. Lyons was relatively new. That was the rationale behind the decision." When Mr. McElhinney the superintendent who made the ultimate decision on discipline was asked in direct examination to explain the different treatment, he replied "Mr. Straughan has been with us as a probationary staff since 1983 and as a part-time casual for a long time. Ms. Lyons has been part-time casual from May 1990 only. In addition, Mr. Straughan personally indicated to me that if there was to be any discipline he felt he should receive it more so than Ms. Lyons because she was new." Having carefully reviewed the evidence and submissions of the parties, we have concluded that the grievance must succeed. We are satisfied from the evidence that while the written policy states that at all times the officer must stay within reach and while the policy does not recognize any exceptions to this rule, the officers in practice understood that there were several exceptions. Following FD's escape, on December 6, 1990 Mr. McLellan sent the following memorandum to all staff: Recently it has come to my attention that in some instances residents receiving medical treatment or care have been left in the care of the medical practitioner without staff supervision. I have been told that medical personnel such as doctors, X-Ray technicians, etc. have made such requests of our escorting staff. The Centre has a clear policy that under no circumstance is the young person to be left unsupervised at any time while on an escort off the property of L.D.C.Y. In future, if staff are requested by medical personnel to leave the examination area, then staff must identify themselves (use Ministry I.D. Card) and indicate to such medical staff that the young person is in custody and as such must be under supervision at all times. If this expectation poses difficulties for the escorting staff, then those staff can suggest to the medical person to call LDCY and speak with a Manager. If you have any questions please see me. In addition, a revised policy directive was issued shortly after FD's escape. It included the following: UNDER NO CIRCUMSTANCE IS A YOUNG PERSON TO BE LEFT UNSUPERVISED AT ANY TIME WHILE ON AN ESCORT OFF THE PROPERTY OF L.D.C.Y. For example, if staff are requested by medical personnel to leave the ? examination area, then staff must identify themselves (use Ministry I.D. Card) and indicate to such medical staff that the young person is in custody and as such must be under supervision at all times. If this expectation poses difficulties for the escorting staff, then those staff can suggest to the medical to call LDCY and speak with a Manager. (emphasis original) In our view, the issuance of the memorandum and the revised policy directive indicates a recognition on the employer's part, of a need to clarify and correct a misunderstanding by escorting officers about their obligations on medical escorts. This is further supported by the evidence of Ms. Lyons and the grievor. Ms. Lyons testified that she had made 4 or 5 hospital escorts during her employment at the centre and that on all such occasions except one, she and her partner had stayed outside the door, in the same manner she and the grievor did on December 4, 1990. The only time she went in was when a female youth who was being internally examined specifically requested that she be present. The grievor testified that he understood that there were several exceptions to the stay within reach policy. His understanding was that it was permissible to stay outside the door during sexually transmitted disease examinations and during medical and dental procedures. When asked how he came to those understandings, the grievor stated that it was through discussions with other officers and from observation 8 of what other officers did. Prior to this incident, the grievor has had approximately 10 hospital and dental escorts. He testified that in each case he and his partner acted in the same manner as on December 4. Mr. McLellan agreed that where a resident needs privacy, and he cited an example of a girl being internally examined, it was acceptable for the officers to remain outside. However, he was of the view that such an exception did not apply for all medical appointments. The policy in its written form does not permit any exceptions to the "reaching distance" requirement. Nevertheless the employer agrees that where privacy and decency warrants it, in practice an officer may be exempted from that requirement. The evidence indicates that there was a general understanding, albeit incorrect, that such an exception applied to all medical visits. It is the existence of this misunderstanding of policy that caused Mr. McLellan to send a memorandum to all staff, specifically making it clear that there is no exemption for medical visits. During Mr. McElhinney's testimony, employer counsel alluded to a prior occasion, when a resident escaped while being escorted by the grievor. However, we are convinced that that prior incident was not part of the employer's reasons for the differential treatment at the time the decision was made. As already, noted, neither Mr. McLellan nor Mr. McElhinney 9 referred to that prior incident when asked to explain the different treatment of the grievor and Ms. Lyons. Moreover, if that was part of the reason for the discipline, it would have been mentioned in the letter ~f reprimand. That letter makes no such mention. Indeed, Mr. McElhinney agreed that the prior incident had occurred some 7 or 8 years before December 4th incident and that after two years, by mutual agreement, all references to it were removed from the grievor's file. Therefore, the issue is whether the grievor's greater experience as ~ correctional officer as compared to Ms. Lyons justified the differential treatment. The evidence indicates that the employer has treated similar conduct by other correctional officers differently in the past as well. In August 1990, two escort officers permitted a resident to make an unsupervised visit to the washroom while attending a court hearing. The resident escaped through a window in the washroom. The employer concluded that the two officers were in contravention of the policy. We observe that the policy (supra p.4) specifically refers to washroom visits at court, while there is no explicit mention of medical visits. However, neither officer was disciplined. Like, Ms. Lyons, they were issued non-disciplinary counsel letters. One of the officers had been an unclassified correctional officer for over two years before becoming a classified full-time officer earlier in 1990. The other officer was unclassified at the 10 time. Mr. McLellan again testified that those two officers were not disciplined because they were relatively new and inexperienced. We cannot accept that the' grievor's relative experience Der se justifies the differential treatment. In certain circumstances a particular employee's length of service may indicate the presence or absence of certain information or knowledge which goes to rthe culpability of the conduct in question. An experienced employee's conduct may be deemed to be more culpable than similar conduct by a relatively new employee in those circumstances. In other words, the new employee's conduct may be excused or at least mitigated by the lack of information and knowledge, which would only be acquired by experience. For example, where the experienced employee has had safety training over the years and the new employee because of his short service has not had that opportunity, and the two are found guilty of an identical unsafe act, the more experienced employee may be said to be more culpable than the other, not because of his length of service per se, but because of his greater knowledge and training. The reasoning is that the senior employee knew that such conduct was unsafe, while the other employee did not. In other circumstances, due to extensive experience additional responsibility may be imposed on an employee, for 11 example in the role of a group leader. It may be reasonable to treat an infraction by such an employee as more culpable than similar conduct by a relatively new employee who did not have that additional responsibility. Again, this is not because of the greater length of service per se, but because of the greater responsibility the senior employee bore. On the facts before us there is no justification in treating the grievor's conduct as deserving of a more severe response. The evidence indicates that the grievor's experience did not place him in any different position than Ms. Lyons or the other two officers, as to the obligations during a hospital escort. The evidence of the employer is that all correctional officers were familiarized with the employer's policy relating to escorts at the time of hire and that they all receive all subsequent memoranda or directives. There is nothing to suggest that the grievor had any greater or different knowledge or information about the escort policy than Ms. Lyons or any other less senior officer. Also, there is no evidence suggesting that the grievor, because of his greater experience bore any leadership role or other additional responsibility. The employer's policy on escorts contains the following directive: Prior to the outing, the Team Leader on duty will appoint one of the escorting staff as the person in charge of the outings. This is necessary due to the fact that staff being equal in status are sometimes hesitant to assume the role of "person- in-charge". 12 The uncontradicted evidence is that this directive is not followed 'by the supervisors. Specifically, it is common ground that neither the grievor nor Ms. Lyons was appointed to be in charge during this particular hospital escort. In these circumstances, to impose a greater penalty on the grieuor is to Denalize him simply because of his greater experience, which is the same as his greater seniority. In a regime of collective bargaining, one of the most precious assets an employee can acquire is seniority. The usual rule is, the greater the seniority, the greater the job security and benefits. One situation where seniority works to an employee's advantage is in mitigating disciplinary penalties. In assessing the appropriateness of the degree of discipline, greater seniority is regarded as a mitigating factor. In the particular circumstances here, when the length of service was of no significance in relation to the culpability of his conduct, the grievor's greater seniority worked to his disadvantage. He was subjected to harsher discipline, simply because he had greater seniority. This in our view is not justifiable. The evidence indicates that during the investigation, the qrievor indicated to management that if anyone was to be disciplined as a result of FD's escape, it should be himself rather than Ms. Lyons. The grievor testified that he took that position because as a classified staff he had more job security. He feared that if Ms. Lyons was disciplined, it may lead to the loss of her job because she was a contract employee. While Mr. McElhinney alluded to this while attempting to explain the differential treatment of the grievor and Ms. Lyons, he did not rely on it as a reason for the decision. In any event, the employer has to make an objective assessment of culpability before deciding disciplinary action. There is nothing to suggest that the grievor did not intend to admit to greater culpability for the escape. The statement made by the griewor does not justify the differential treatment in the circumstances. In summary, we find on the basis of all of the evidence that there was a general misunderstanding among the correctional officers as to the policy governing hospital visits. The grievor acted in accordance with this incorrect understanding, as did Ms. Lyons. We also find that given the co~mon misunderstanding, the grievor's conduct, was no more culpable than Ms. Lyons or the other two officers who were responsible for the prior escape in August 1990. By imposing a greater penalty on the grievor in the circumstances, the employer discriminated against him without justification. In the result, the grievance is allowed. The Board finds that there was no just cause for the letter of reprimand. The ~4 employer is 'directed to expunge the letter and any reference to it from the grievor's files. Dated this 30th day of April 1993 at Hamilton, Ontario N. Dissanaya~e Vice-Chairperson P. Klym Member Member