Loading...
HomeMy WebLinkAbout1991-0968.Inkumsah.92-10-14 % ONTARIO EMlaf. OYE3 DE LA COURONNE ' '- ~* ~ ' cROWN EMPI, OYEES O~ L'ONT~tO : : GRI~ANCE C~MMI~ION DE ~/'~ S~LEMENT REGLEMENT BOARD DES GRIEFS 1~0 ~NDAS S~E~ WEST. SUI~ 2~, TORONTO, ~T~. ~O tZ~ TELE~ON~/TE~ONE: ~4 ~6) 3~6- r388 ~80, RUE ~N~ ~EST, BUREAU 2f~, TOR~ (~TAR~J. ~G tZ8 ~ACSIMILE,'~E~CO~E : (4 t6t 3~6- 1396 968/9Z gnde= ~ GReeCE 8ETT~ BO~ B~EN - ~ - The Cro~ ~n R~h2 oE .~plo~er B~FORE: S. Stewart Vice-Chairperson N. Cartiere Member I. Cowan Member FORT HE M. Bevan UNION Grievance Officer Ontario Public Service Employees Union FOR T~E J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services H~RING December 5, 1991 April 9, 16, 27, 1992 June 17, 18, 1992 The grievor, Mr. E. Inku~sah, alleges that he was suspended and then discharged without just cause from his 9osition as a correctional officer a= the Toronto Jail. The basis for Mr. Inkumsah's discharge is the Employer's conclusion that Mr. Inkumsah physically assaulted and injured an inmate on March I3, 1991. The'decision to terminate Mr. In~umsah's employment was made by Mr. D. Foulds, who was deputy superintendent of the institution a= the ~ime. Mr. Foulds issued a letter of termination, dated May 15, 199I, following an investigation carried out by Mr. P. Lambert, an inspector who carried out the investigation pursuant to s. 22 of the Correctional Services Ac__~. The conclusion expressed in =he investigation re~ort was =,hat Mr. Inkumsah had assaulted and injured the inmate as alleged. Mr. Inkumsah commenoed his employment with the Ministry of Correctional Services in October, 1989, at Toronto West Detention Centre. He began working at Toronto Jail in late 1990. Mr.' Inkumsah was a member of the unclassified service on contract at the time of his termination on May 15, 1991. _ On March 13, 1991, Mr. Inkumsah 'Worked the day shift, "~commencing at 6:45 a.m. He was assigned to unit 5B, a segregation unit. Mr. MacKinnon, the inmate Mr. Inkumsah is alleged to have assaulted, was in a segregation cell in that unit. Mr. Inkumsah acknowledged that he had a confrontation with Mr. MacKinnon in his c~ll during =he morning of March i3~ but denied that he injured Mr. MacKinnon. Mr. Inkumsah testified that the confrontation resul~e~ .~rom ~he i~ue's refusal =o ~ake his prescribed men, ca=ion and i= was his ~vi~ence that he did inflict any injuries on i~e Ma~innon a= this =i~ an~ =he entire confron=atio~ between =h~ t~k place in the presence of a nurse. I= was Mr. I~sah's evidence =ha~ Mr. Ma~innon had inju=ies =o his ~ace when he firs= saw h~ on =he morning of March 13~ ~991. The evidence established that Mr. MacKinnon had been transferred =he previous night, because of an altercation with his =climate, Mr. Webber. However, =here was no direct evidence, in =he form of oral evidence or log entries with. respect =o =he nature of the altercation or Mr. MacKinnon'.s physical condition following =hat altercation, Mr. L. Jeffers, shift supervisor for =he day shift on March 13, ~992, testified =ha= at =he time of the shift changeover the night shift supervisor told him =hat inmates MacKinnon and Webber "were not get=ing along" and'that they had to be separated. He testified that there was no reference to a "fight" in =he verbal report that he rec'~ived. According to Mr. Jeffe'rs, there were no written reports with respect to this incident. Mr. Jeffers testified that he passed this information on ac the morning staff meeting. Mr. Inkumsah testified that he heard Mr. K. Niemi, a correctional officer, tell another correctional officer that inmate McKinnon had been "b_eaten up" the night before. Mr. Inkumsah did not proceed directly to Unit 5B at the conclusion of muster. Mr. Inkumsah, along with several other officers, was ass£gned ~o carry out the search of a unit. According to the search record, =his search was completed at 7:33 a.m. Ms. L. Klinga, was responsible for 5B during Mr. Inkumsah's absence. Ms. Klinga is a correctional officer and her assignment that day was to unit 5C. Ms. Klinga carried out her duties in 5B, as well as in 5C during Mr. Inkumsah's absence. Ms. Klinga testified that she reviewed the log from the previous evening and there was no indication of an altercation between Mr. Webber and Mr. MacKinnon. She testified that she checked on Mr. MacKinnon twice, once at 7~IO a.m. and once at 7:30 a.m. Ms. Klinga skated that Mr. MacKinnon spoke to her first and asked how she was. Ms. Klinga said that she was "fine" and asked how he was. Mr. MacKinnon responded that he was "fine". Ms. Klinga testified that she did not see Mr. MacKinnon's face on the two occasions that she went to %he area. However, because he responded to her when she inquired ~bou~ him, she had no concerns about his wellbeing. Ms. Klinga testified that Mr. Inkumsah returned to the unit at 7=30 a.m.. In a report that she prepared later that day Ms. Klinga also referred to the time of Mr. Inkumsah's return as 7:30 a.m. Ms. Klinga testified that she was certain that Mr. Inkumsah returned no ~ater than 7:35 a.m. There is a log entry prepared by Mr. M. Barker, unit manager, at 8:03 a.m., indicating that Mr. Barker was present on the unit at that time. Mr. Inkumsah testified that after he finished the search he went to the kitchen to obtain the meal cart. He testified that he did not arrive a: the unit un=il approximately 8:20 a.m. The kog for 5B shows entries made by Mr. Inkumsah at 7:50 a.m. and 8:00 a.m~, however Mr. Inkumsah testified that he prepared those entries when he arrived later on behalf of Ms. Klinga, who .- advised him ~ha% she had not had time =o complete them and asked him to complete them for her. Mr. Inkumsah referred to seeing Mr. Barker on the unit. Mr. Inkumsah testified that he saw Mr. MacKinnon's face at approximately 8:20 a.m. when he first arrived on the unit and: that his face was injured. Mr. Inkumsah stated that he a~sumed that Mr. MacKinnon's injuries had resulted from an assault the night before but that he did not report this to a supervisor because it was his understanding that iu was general knowledge, given what he had heard Mr. Niemi say that morning. He stated, hbwever, that he did ask Mr. Niemi to arrange to have the doctor see Mr. MacKinnon. In a statement to Mr. Lambert on March 22, 1991, Mr. Inkumsah stated that he made this request of Mr. Niemi "somewhere between 08:30 and 09:00 hrs". Mr. Inkumsah testified =hat Mr. Niemi =old him that he knew about Mr. MacKinnon and that his initial request was essentially brushed off. A subsequent request, made after he and the nurse visited the cell, was comp 1 i ed .wi =h. Mr. Niemi testified that he had no knowledge of Mr. MacKinnon being assaulted =he previous evening and he denied discussing the matter at =he beginning of the shift that morning. Mr. Ni~m~ testified that Mr. Inkumsah spoke to him on two occasions about arranging to have the doctor see Mr. MacKinnon. However, according to Mr. Niemi's evidence, =he first occasion was a= 9:45 a.m. and the second time was at 10:00 a.m. Relevant =o the issue of the timing of the events, is the fact that Mr. Barker's log refers to the time of 9:35 a.m. in relation to a note that he was advised that Mr. MacKinnon had alleged that he had been assaulted by Mr. Inkumsah. Mr. Bar~er referred to receiving the call about this matter at 9~i9 a.m. in a written report. Mr. Barker testified that he received the call within five minutes either side of 9:19 a.m. Mr. Barker testified that Mr. Inkums~h came to see him at 9:05 a.m., at which time Mr. Inkumsah advised Mr. Barker that he had "had words" with Mr. MacKinnon. Ms. Cloutier-Devoe, registered nurse, testified that she attended au Mr. MacKinnon's cell in order to dispense prescribed medicine to him. In her statement to Mr. Lambert, Ms. Cloutier- Devoe indicates that =his took place a= around 8:50 a.m. · The evidence of both Ms. Cloutier-Devoe and Mr. Inkumsah was =hat the inmate did no= respond when they first knocked at his cell 'door. Either Mr. Inkumsah or Ms. Clou=ier-Devoe pulled a blanket off of the inmate and attempted to wake him up in order =ha= the prescribed medication could be administered. According =o Ms. Clouthier-Devoe's evidence, =he inmate told them to go away and Mr. Imkumsah =hen took a cup of water and threw it in =he inmate's face. In a initial statement ==ken by a supervisor, Mr. Walmsley, Mr. Inkumsah made no reference =o throwing wa=er in =he i~mate's face, however, he subsequently acknowledged to Mr. Lamber= =ha= he did so. Mr. Barker said =hat Mr. Inkumsah "may or may not have mentioned water or tea thrown" when he was first told about the incident by Mr. Inkumsah. ' According to the evidence of both Ms. Cloutier-Devoe and Mr. Inkumsah, the inmate re=alia=ed by kicking Mr. Inkumsah with his bare foot striking him on his upper leg and throwing a cup of tea or water, ~hich had cigarette butts and ashes in it. This was mainly dispersed on Ms. Cloutier-Devoe's ~ab coat.. Ms. C~out£er~Devoe ~s~ified' that Mr. Inkumsah was very angry and that he said tO the inmate "never touch me again or I will kill you" at least three times. Ms. Cloutier-Devoe testified that she was frightened and that she backed away from the cell. Both she and Mr. Inkumsah left the cell and went to disgense medications to two other inmates on the other side of Ms. Clouthier-Devoe testified %hat she saw Mr. MacKinnon's face when she and Mr. Inkumsah were in the cell and that she did not observe facial injuries at that time. She stated that the cell was dark but that she could see the ~inmate's face clearly, particularly when she kneeled down to attempt to rouse him. However, in cross-examination, she stated that if Mr. Inkumsah had a black eye she may well not have seen it because of the darkness. The statement provided by Ms. Cloutier-Devoe at the time of the investigation indicates %hat Mr. Lambert specifically asked her if she noticed any marks on Mr. MacKinnon's face, specifically on his left side, and that her response was "no". Mr. Inkumsah acknowledged that he. threw water on Mr. MacKinnon. He testified that he thought that Mr. MacKinnon might be dead. In one of his statements to Mr. Lambert he stated that the inmate had not said anything before he threw ~he water on his face. Mr. Inkumsah also testified that he was kicked by Mr..: MacKinnon and acRnowledged saying: "never touch me again or I will kill you". Mr. Inkumsah denied inflicting any injuries on Mr. MacKinnon. He testified that after leaving Mr. Mac~innon's cell with Ms. Cloutier-Devoe he did not re-enter the cell until he returned with Mr. Niemi. After the incident he notified Mr. Barker and.made a log entry with respect to the matter. The time next to the log entry prepared by Mr. Inkumsah is 8:55 a.m. Ms. C~outier-Devoe testified th_at she next saw the inmate when he came to the health care unit later that morning. She testified he was with an officer and that she thought i= was Mr. Inku~sah. She stated that at that time she observed facial injuries and blood on his face. She stated that she exclaimed "what happened to you" and that the inmate did not respond. She was attending to other patients and she was not involved in the medical care of Mr. MacKinnon. However, she testified that on the basis of her observation of the inmate, it was. her opinion that the injuries had been inflicted within an hour or an hour and a .half. As previously noted, there was some dispute about when Mr. Inkumsah asked Mr. Niemi to take Mr. MacKinnon to see. the doctor. However, it was com__.mo_n ground that Mr. Niemi did go to Mr. MacKinnon's cell at =he request of Mr. Inkumsah and that they went to Mr. MacKinnon's cell together. Mr. Niemi testified that there was blood on Mr. MacKinnon's face when he saw him. ~iemi then went to see Dr. Dubelsten to arrange to have h~m see Mr. MacKinnon. Mr. Niemi then returned to Mr. MacKinnon's cell and escorted Mr. MacKinnon to the health care area. Mr. Niemi stated that he prepared an occurence report with respect to this matter. This report has been lost. Mr. Niemi provided a statement to Mr. Lambert on March 14, 1991. In that report Mr. Niemi indicates that he heard Mr. MacKinnon tell Dr. Dubelsten that "the guard" had injured him. Mr. Niemi was also asked by Mr. Lambert whet_her the inmate's injuries were "recent or many hours o~d". Mr. Niemi replied as follows: "Recent~ one eye was discoloured from inmate MacKinnon's account of a previous flight. It was his right eye, =he other injuries were recent, within an hour or so. ". Mr. Niemi uelephoned Mr. Barker and advised him =hat Mr. MacKinnon had alleged that he was assaulted by Mr. Inkumsah. Mr. Barker went to the health care area where he saw the inmate. Mr. Barker con=ac=ed Mr. Walmsley, seouri=y officer, and advi-~ed him of the allegation. Mr. Walmsley arranged to have Mr. Inkumsah sen= to his office. Mr. Walmsley testified that he advised Mr. Inkumsah that he had been accused of assaulting Mr. MacKinnon and that Mr. Inkumsah denied =hat alle~a=ion. Mr. Walmsle¥ asked Mr. Inkumsah to dictate and sign a statement, which Mr. Inkumsah did. Mr. Inkumsah denied assaulting Mr. MacKinnon in that statement. Mr. Jeffers, Mr. Walmsley, Mr. Foulds, and Mr.DeFranco,. senior assistant superintendent, attended at the health care area. Mr. Barker took photographs of the inmate which were produced before the Board. The injuries shown in the p~otograph~ are consistent with Dr. Dubelsten's diagnosis. There is blood' on Mr. MacKinnon's face which appears to be fresh. As well, the photographs disclose that Mr. MacKinnon had a prominent "black eye" on his right side. Mr. Barker also took photographs of Mr. MacKinnon's cell, where there was blood on the mattress. Mr. Barker spoke to Mr. MacKinnon about the cause of his injuries. Mr.' Barker's record of Mr. MacKinnon's statemen% is referred to below. Mr. MacKinnon was examined by the institutional physician, Dr. P. Dubelsten. Dr. Dubelsten testified that he examined the inmate at around 10~00 a.m., and his diagnosis was bilateral periorbi=al bruises, swollen right side of face and nose and a one inch superficial laceration on his left cheek. In his evidence in chief, Dr. Dubelsten testified that he was of the opinion that the injuries had been sustained within one or two hours prior to the examination. However, in cross-examination, Dr. Dubelsten acknowledged that it was possible that the injuries had occurred the night before. A number of the witnesses described Mr. MacKinnon as limited in intellectual abilities. Mr. MacKinnon has been incarcerated in the Toronto jail on many occasions over the years. He has experienced difficulties in functioning in the general inmate population which has resulted in his incarceration in segregation. Mr. MacKinnon was .not called to give evidence. He was released subsequent to this incident. Mr. Foulds testified that he did not know whether the inmate had been back in the prison system since his release following this incident. In addition to the statement of Mr. Niemi with respect to wha= Mr. MacKinnon said about his injuries, there was oral and documentary evidence from a number of sources about statements by Mr. MacKinnon about the cause of his injuries. In the portion of a form for reporting injuries, Mr. Barker records the inmate as stating: "I was lying down sleeping, when the officer came and shook me to wake me up. He was rough so I told him to fuck off. He threw a cup of water in my face, so I threw a c~p of tea/water at him. He fought with me and kicked me in the face." In the portion of the form to be filled out by area staff, Mr. Barker writes as follows: "I/M Mackinnon stakes he was attacked by the officer on du~y this morning. He also claims he was attacked last night by an I/M named Webber. His eyes are swollen as are his cheek bones. There is bruising around both eyes. His nose is swollen." Sargeant Barker prepared a memorandum dated March 14, 1991 to the superintendent of the institution relating to a statement made by Mr. MacKinnon the previous day. In that. memorandum Sargeant Barker states that he was advised by Mr. Inkumsah at approximately 9:05 that he had "had words" with inmate MacKinnon and 'that he was then contacted by Mr. Niemi, at approximately 9519 and was advised that Mr. MacKinnon was being treated for "a beating" and that he-had accused Mr. Inkumsah of being "h'~s attacker". With respect to Mr. McKinnon's statements at that time Sgt. Barker writes: I spoke to him and he told me the officer had tried to waken him for medication, that water was thrown in his face, and that he had thrown a cup of tea back at the officer and that the officer then came back and hit him or kicked him in the face I s~oke to him briefly again before he was ~aken out to hospital and he =old me =ha= something had also happened the nigh= before, and he was attacked by'his cell mate, an i/m Webber. Mr. DeFranco testified that he asked Mr. MacKinnon what had happened and that Mr. MacKinnon told him that he had been kicked in the face by a black correctional officer. Mr. DeFranco stated that he then asked Mr. MacKinnon what had caused the incident and that Mr. MacKinnon told him that he had been rude or abrupt toward the officer which resulted in a kick to the face. Mr. Foul,s also asked Mr. MacKinnon what had happened to him. Mr. Foulds testified that Mr. MacKinnon told him that he had been kicked by a black officer in segregation. The inmate also provided a statement =o Mr. L~mbert, on the morning of March 14, 1991. Mr. MacKinnon's statement indicates =hat he was assaulted by "a black correctional officer". When asked why the officer assaulted him, Mr. MacKinnon is recorded as stating: Yeah, because I told him I didn't want any medication. I told him t0 'fuck off". He started to pull me up off the mat=tess. I was angry. He started to kick me with his boots. He was wearing hard healed [sic] boots, they hurt. T~e inmaee went on to state that he was then ~een by a female . guard with "a birthmark on her lip" and that she asked him what had happened to him. Mr. MacKinnon stated that he was then taken to the nursing station and subsequently to the hospital. He was asked if he threw anything at the officer and he replied= "I was getting ready =o thro~ some water at him because he was kicking and pulling at me." Mr. Lambert testified that he was unable to _ determine the identity of the female, guard that Mr. MacKianon referred to. The issue that must be determined is whether the evidence establishes, on a balance of probabilities, that Mr. Inkumsah engaged in the conduct alleged. The conduct that Mr. Inkumsah is alleged in engaging in is misconducU of the most serious kind. I~ is contrary to the standing orders of =he institution and s.? of Regulation 649 of the Ministry of Correctional Services Act . As we~l, we agree with the comments of the arbitrator in Government of Province of British Columbia and British Columbia Government Employees Union (Correctional Services Component) (1987), 27 L.A.C. (3d) 311 (Hope) at p. 327, where such conduc~ is described as "one of the most serious offences one can envisage on the part of a corrections officer" and one involving the breach of a "significant duty of trust". We also agree with the following comments which appear at p. 327 of that decision: The employer is entitled to treat a breach of that trust as evidence that a corrections officer does not possess the attributes essential to the proper performance of what must be seen ·.. as a potentially frustrating and provocative role where integrity and self-control are important, even. vital qualities. In recognition of the seriousness of the allegations, the Union's position was that if the Board found that the allegations against Mr. Inkumsah had been established, the penalty of discharge was not in issue. It was the position of the Union, however, that =he evidence does not support the co_nclusio~ that Mr. MacKinnon's injuries resulted from an assault by Mr. Inkumsah. It was the ~ositon of the Employer that the evidence suppo=ted the conclusion that Mr. Inkumsah had inflicted the injuries on Mr. MacKinnon. The theory of =he Employer's case was that after leaving Mr. MacKinnon~s cell with Ms. Cloutier-Devoe, Mr. Inkumsah returned to Mr. MacKinnon~s cell and assaulted him. In .considering the evidence in this case, we are mindful than the onus rests with the Employer. As has been observed by many arbitrators in similar cases, while the onus requires that allegations must be established on a balance of probabilities, the seriousness of these kin~s of allegations requires =hat they must be established by clear and cogent evidence. There is no direct eye-witness evidence to support the allegation that after Mr. Inkumsah le~= with Ms. Cloutier-Devoe he returned to Mr. MacKinnon's cell and inflicted injuries on~ him. The re~orts of statements made by Mr. MacKinnon referred to above are clearly hearsay in nature. As Mr. MacKinnon did not gave evidence in this proceeding it would clearly be inappropriate to rely on these' statements for the truth of their contents, given the fact that the Union was unable to cross- examine Mr. MacKinnon on these statements. We also note that while one of the statements suggests that Mr. Inkumsah returned to. the cell, other statements attributed to Mr. MacKinnon ~o not support the Employer's theory.of the case, as they appear to suggest that there was one confrontation between Mr. Inkumsah and himself and that Mr. Inkumsah kicked him in the face in the course of that one confrontation. This clearly does not accord with Ms. Clou=ier-Devoe's version of the event. Given Ms. Clou=ier-Devoe's evidence that after leaving the cell they went to a~minister medication to other inmates there would have been some time lapse before Mr. Inkumsah could have returned to the tell one would think that such a time delay would have figured prominently in Mr. MacKinnon's version of the events. As well, there are also contradictions in these s, tatements. There is also the matter of the female guard with the birthmark, who Mr. Lamber~ said he was unable to identify. Aside from the fac= that these statements and the evidence about what Mr, MacKinnon said are hearsay in nature, these particular aspects of the evidence relating to Mr. MacKinnon's version of the events would cause us to question their reliability. Mr. Benedict emphasized the evidence of Ms. Klinga, Mr. Barker and Ms. Cloutier-Devoe in support of his submission that Mr. MacKinnon did not have facial injuries at the time Mr. Inkumsah and Ms. Clou=ier-Devoe entered the cell. He emphasized that Mr. Inkumsah was extremely angry, as evidenced by his acknowledged threat to "kill" Mr. MacKinnon. Mr. Benedict also emphasized that Mr. Inkumsah had sole access to Mr. MacKinnon as he carried the key Co his cell. As well, Mr. Benedict referred =o =he evidence of ~he'wi=nesses who were off She view that the injuries were recent. In our view, there are clear difficulties with the circumstantial evidence in this case. While Ms. Klinga and Mr. Barker did not notice anything untoward with respect to Mr. MacKinnon, they did not see his face. Ms. Cloutier-Devoe testified that she did have a clear view of Mr. MacKinnon's face when she was in his cell, hewever she acknowledged =hat it was dark £n the cell. For the reasons set out in the following paragraph: .ir is our view that whether or not Mr. MacKinnon sustained other injuries the previous nigh=, it is probable that the bruise under his right eye was present when Ms. Cloutier- Devoe and Mr. Inkumsah were in Mr. MacKinnon's cell. Ms. Cloutier-Devoe acknowleged that the bruise could have been there and that she':could have missed it because of the darkness of the cell. This matter causes us =o question whether she is able =o provide us with reliable evidence about =he condition of Mr. MacKinnon's face when she was in his cell. While a number of witnesses called by the Employer'~estified that Mr. MacKinnon's injuries were of recent origin, the opinion which we must defer to is the opinion of =he physician who examined Mr. MacKinnon. As previously noted, Dr. Dubelsten acknowledged in cross-examination that the injuries could have taken place the night before. This acknowledgement, coupled with the fact that Mr. MacKinnon was involved in an altercation with another inmate the night before gives rise to the clear possiblity that Mr. MacKinnon sustained the injuries at that time. According to Mr. Barker's report, Mr. MacKinnon stated that he was #attacked" the previous night by Mr. Webber. Whatever t=anspired be=ween them, it was an alercation significant enough for the inmates to have been separated. The photographs of Mr. MacKinnon taken by Mr. Barker show a prominent bruise under his right eye. Mr. Niemi refers to the bruise resulting from the altercation with inmate Webber the night before. The source of Mr. ~iemi's knowledge in this regard is not clear. However, it would seem unlikely that a bruise would have developed at this time, as a. result of an assault that morning. Mr. Lambert testified tha~ he saw documentation that referred tO Mr. MacKinnon having been hit in the right eye by Mr. Webber, however the evidence of Mr. FoUlds and Mr. Jeffers was that such documentation did not exist. The lack of any documentatio~ is puzzling, as is this contradiction in the evidence. In any even=, no documentation was produced and the officer or officers who had personal knowledge of this incident and- Mr. MacKinnon' s condition following this incident were neither interviewed at the time nor were they called to give evidence in this proceeding. If the bruise did result from the altercation with Mr. 18 Webber, the altercation was clearly of a physical nature, resulting in injury %o Mr. MacKinnon's face'. While %he evidence established ~ha= Mr. MacKinnon was bleeding from-his face when he arrived at %he health care unit, it appears =hat he was bleeding from the injury referred to by Dr. Dubels~en as a one inch superficial laceration of the lef% cheek. I= would seem ~ossible =hat Mr. MacKinnon's exertions during his confrontation with Mr. Inkumsah could have opened a wound =hat had been incurred the previous evening. We emphasize again tha~ Dr. Dubels%en's evidence =hau the injuries .could have been sustained the evening raises a very significan% uncertainty in the circumstatial evidence supporting the conclusion %hat some or all of Mr. MacKinnon's facial injuries were inflicted by Mr. Inkumsah. Mr. Inkumsah gave evidence about his experience at Toronto West, where he had been previously employed as a correctional officer. According to ~his evidence, Mr. Inkumsah was '. ', insurumental in the laying of charges against inmates who .had a~t'empted %o bribe him to bring drugs into that institu%ion. There was an investigation into whether o%her correutional officers had been involved in such actions. Mr. Inkumsah's car windo~ was smashed and he received a dead mouse in his mailbox. The la%ret is a well-recognized symbol in a correctional setting. There was some suggestion that Mr. Inkumsah might have been "framed" in connection with this matter as a result of his " involvement in the investigation 'at Toronto West. In our view, 19 this theory of the events is most unlikely. Such a conspiracy would have involved a number of people, and planning that would have involved management as well as correctional officers. We have no hesitation in rejecting the suggestion Mr. Inkumsah has been implicated in this matter as a result of a conspiracy resulting from his involvement in the investigation at Toronto West. There is also the evidence relating to the rumour that Mr. MacKinnon was assaulted by correctional officers the evening before. There is no reference to such an incident in any of the statements made by Mr. MacKinnon. As well, the evidence is simply that there was a rumour. However, the existence of this rumour is not simply a matter of Mr. Inkumsah's testimony. Ms~ G. Ross, a local Union representative, also testified that such a rumour was circulating. It was common ground that the Employer was made aware of the existence of this rumour prior to Mr. Inkumsah's termination, however no names were disclosed to t~e Employer at that time. Mr. Lambert was also advised of this matter, however he did not feel that it merited any investigation into the officers who had access to Mr. MacKinnon on the previous shift. Ms. Ross and Mr. Inkumsah both testified that names of the officers rum6ured to be involved in this matter were provided subsequent to the termination, in the course of a grievance meeting. Mr. Foulds testified that he did not remember the names being provided but he acknowledged that he was unable to state 20 specifically =hat the names were not provided Uo 'him. This matter was nOt investigated. Whether or not the ~ossibility that other correctional officers might have assaulted Mr. MacKinnon the night before might have led us to conclude that there is an alternative explanation for the source of Mr. MacKinnon's injuries, it is our conclusion that the evidence before us has raised a reasonable ~ossibility that the injuries that Mr. Inkumsah is alleged to have inflicted on Mr. MacKinnon could have resulted from the altercation with Mr~ Webber the previous evening. There are some aspects of Mr. Inkumsah's evidence that cause us to question whether he has provided us with a truthful account of the incident. A significant discrepancy in the evidence of Mr. Inkumsah and Ms. Cloutier-Devoe is whether or not the inmate said anything before Mr. Inkumsah threw water on his face. Ms. Cloutier-Devoe has no apparent interest in this matter and in our view, her version of this aspect of the event is most probably correct. However, Mr. Inkumsah's evidence on this point may be more properly viewed as an attempt to cast his actions in a favourable light rather than an indication that he should not be believed in his denial of assaulting Mr. MacKinnon. Another significant matter is the fact that Mr. Inkumsah did not bring any concerns about Mr. MacKinnon's condition to the attention of the nurse or a supervisor. However, according to Mr. Inkumsah's 21 ( version of the events, he had already asked .Mr. Niemi to arrange to have Mr. MacKinnon seen by the doctor prior =o =he nurse coming ~o his cell. As well, according to his evidence, for which there is some support in Mr. Jeffers' evidence, it was general knowledge that Mr. MacKinnon had been involved in an altercation the night before. The fact that Mr. Inkumsah did not __m~___ke any reference to Mr. MacKinnon being injured when he first saw him in his statement to Mr. Walmsley .also causes us to question the credibility of his version of the events. The statement is brief however, and it appears that Mr. Inkumsah was not advised of the precise nature of the assault he was alleged to have committed. In the fi=st statement to Mr. Lambert, following day, Mr. Inkumsah does refer to Mr. Inkum~ah already having facial injuries. There is considerable evidence that contradicts Mr. Ink~_~_m_~ah's assertion =hat he ~id no= arrive at the ~ni= un=il approximately 8:20 a.m. However, while Ms. Klinga was adamant that Mr. Inkumsah was back by 7~35 a.m., this seems most unlikely, given the fact that =he search that Mr. Inkumsah was involved in was not comgleted until 7=33 a.m. Obtaining the meal cart after the search would.have ensured that Mr. Inkumsah would have been unable to be back by 7:35 a.m. We do, however, question whether i= would have taken Mr. Inkumsah until 8=20 a.m. to deal with the meal cart. Mr. Inkumsah's reference to seeing Mr. Barker on the unit would ~lace him on the ward at around 8:00 22 a.m. The log entries, which precede Mr. Barker's entries, also 91ace him on .the ward before 8=20 a.m. We think that it is most probable that Mr. Inkumsah arrived back somewhat earlier =hah 8=20 a.m. Mr. Benedict suggested that Mr. Inkumsah was attempting =o place himself on the ward later than he actually was present in order to provide a version of the events consistent with contact with Mr. Niemi shortly after he arrived on the unit. However, =here would not appear to be any rationale for a fabrication of ~his particular nature. If Mr. Inkumsah were fabricating evidence to his benefit he could simply have claimed that he contac=ed Mr. Niemi even earlier, consistent with an earlier arrival on the shift. The critical conflict between =he evidence of Mr. Inkumsah and the evidence of Mr. Niemi is whether Mr. Nie~ was contacted before Mr. MacKinnon was seen by Ms. Cloutier-Devoe or after. ~ Mr. Niemi's evidence was that Mr. Inkumsah first contacted him at 9=45 a.m. and a second time around 10=OO a.m., which would have been subs~uen= to the time that Mr. Inkumsah was in the cell with Ms. Cloutier-Devoe, while Mr. Inkumsah's evidence placed the initial contact with Mr. Niemi prior to the time that he and Ms. Cloutier-Devoe entered the cell, just prior to 9=00 a.m. If Mr. Barker has correctly s~ated the time at which he was contacted by Mr. Niemi in health services as.around 9:20 a.m., Mr. Niemi is.clearly incorrect, by some margin, about the time that he was first contacted about the matter by Mr. Inkumsah. However, we do note that Mr. Inkumsah records Mr. MacKinnon as going to health care at 9=45 a.m. Even ( 23 on this evidence however, which appears to be consistent with other evidence as to when Mr. MacKinnon went to health services, Mr. Niemi's there is a question, albiet of less significance, as to the accuracy of Mr. Niemi's evidence about when he was contacted by Mr. I~kumsah. The report prepared by Mr. Niemi immediately following his involvement in this ~atter might have been of some assistance with respect to this matter, however, as previously noted, this report has been lost. Given the discrepancy and the confusion in the evidence, we are unable to conclude that Mr. Inkumsah's evidence that he contacted Mr. Niemi earlier, prior to the arrival of the nurse, has been contradicted by cogent reliable evidence. Mr. Benedict submitted that Mr.. Inkumsah has provided ver~ different versions of the confrontation between himself and Mr. MacKinnon and relies on this matter in support of his position that Mr. Inkumsah has not provided a truthful account of the relevant events. The particular matter emphasized by Mr. "" Benedic~ was Mr. Inkumsah's statements with respect to throwing water on Mr. MacKinnon. While Mr. Inkumsah made no reference to this matter to Mr. Barker or in the initial statement made to Mr. Walmsley, we cannot agree with Mr. Benedict's submission that~Mr. Inkumsah specifically denied throwing Wa%er on Mr. Mac, Kinnon in a previous statement. The exchange in the first statement to Mr. Lambert is recorded as follows: Q. Did you have cause to pour or throw water on inmate MacKinnon when the nurse was attempting to give inmate MacKinnon his medication? A.' No, he threw wa=er at me, excegt when I tried =o wake him up the fi=s= time. O. Can you think of any reason why Nurse Linda Clou=ierr- Devoe would say you threw water at inmate MacKinnon when she was attempting to dispense the medication to him? A. No. While =here is some ambiguity in this exchange, our interpretation of Mr. Inkumsah's statement is that he is acknowledging that he did throw water at Mr. MacKinnon. This was again ackncx~ledged in a subsequent statement to Mr. Lambert. Wh.ile there is no reference to this matter in Mr. Inkumsah's re~ort to Mr. Barker or in his statement to Mr. Walmsley this is not an instance of Mr. Inkumsah providing contradictory statements, a matter which might cause us to discount his evidence in its entirety with respect to this matter. Notwithstanding the questions that aspects off Mr. · ~ Inkumsah's evidence raise, after carefully reviewing and weighing the evidence, we are unable to conclude that the Emgloyer has met the onus of establishing, on a balance of probabilities by clear and cogent evidence, that the facial injuries that Mr. MacKinnon was treated for on the morning of March 13, 1991 resulted from an assault by Mr. Inkumsah. On the evidence before us there is sufficient doubt that we are compelled to conclude that the allegations against Mr. Inkumsah have not been established. Accordingly, it is our conclusion that just cause for the 25 termination of Mr. Inkumsah's employment has not been established. We turn n~w to the issue of remedy. It was Mr. Benedict's submission that any remedy ought to be restricted to compensation for the period remaining in Mr. Inkumsah's appointment. As is noted in Ministry of Correctional Services & OPSEU (Miller and MacPhail) 531/82, (Verity), the view that the Board is limited to such a remedy has been rejected by the 'Divisional Court. The ultimate result in Miller an__d MacPhail was that the grievers who had been found to have been dismissed without just cause were reinstated for the balance of the term 'of the contracts =hat they were working under at the time of their dismissals and compensated for their losses. Panels of this Board have provided more restrictive remedies, depending on the facts of a particular case. In O'Hara 1596/84 (Verity) the Board indicates that the appropriate consideration is whether it is likely that the griever's contrac~ would have been renewed upon its expiry. 'In this case, there is no evidence to suggest that it would not be. Mr. Inkumsah received a renewal of his'contract while his actions in connection with this matter were being investigaued. We have concluded that the allegations against Mr. Inkumsah have not been subsuantiated. It is our view that the appropriate remedy in this case is the reinstatement of Mr. Inkumsah for the balance of the term of his contract, with compensation for his losses. 26 Accordingly, Mr. Inkumsah is to be compensated for his losses from. the time of his termination to %he date of his reinstatement. Mr. Inkumsah is to resume his employment' as a contract employee, the term of which contract is to be equal to the remaining period of the contract he was working under at the time of his termination. We retain jurisdiction in the event- that the parties experience any difficulties in the implementation of this decision. Dated at Toronto, this l&thday of October,1992 S. L. Stewar~ - Vice Chairperson N. Cartiere - Member "I Dissent" (dissent attached) I. J. Cowan- Member ~SSEN~ RE: 968/91 OPSEU (Inkumsah) and the Crown in Right of Ontario (Ministry of Correctional Services) Having carefully reviewed the decision of the majority and sharing their difficulties with respect the evidence which is so largely circumstantial and contradictory, I cannot concur in the decision stated at p. 24 that, on the balance of probabilities, the facial injuries inflicted on inmate McKinnon were not the result of a beating by the-grievor. If the necessity to separate inmates McKinnon and Webber the previous evening was due to a beating inflicted upon the former by the latter, and, if the injuries suffered by McKinnon were as serious as those observed the next morning and yet were not the subject of an occurrence report and investigation by the employer then there is indeed a very serious lack of integrity in the system. Such a serious shortcoming seems unlikely. in view of the grievors admitted anger and his threats to "kill" inmate McKinnon if he touched him again and of the fact that the grievor ha~ sole access to McKinnon's cell it my view that in light of all the information given us the grievor did inflict the injuries on McKinnon. In the result I would have dismissed the grievance.