HomeMy WebLinkAbout1991-2755.Willis.95-03-16.~'.~.,., ONTARiO EMPLOY'r~'S ~E LA COURONNE
CROWN EMPf. OYEES DE L'ONTAR/O
, GRIEVANCE COMMISSION DE
SETTLEMENT R~=GLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/T~L~.PHONE : (416) 326-1388
.180, RUE ~(,~NI')A.~DU_ES'I~ RtJREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/T/~LI~GOPIE : - (416) 326-1396
GSB# 2755/91 .
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~r~ .~.~ ,~.u'.v ,'~ ,-_~; IN THE MATTER OF AN ARBITRATION
· .~:.: .......... :~_~ ....... ~'_..,..i ........ '_.~_~ Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING 3~CT
Before
THE GRIEVANCE SETTLEMENT
· BETWEEN
OPSEU (Willis)
Grlevor
- and-
~ The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE: "S. Stewart Vice-Chairperson
P. Klym' Nember
.. - D. Montrose Member
FOR THE D. Eady
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE D. Jarvis
EMPLOYER Counsel
Filion, Wakely & Thorup
Barristers & Solicitors
HEARING .April 8, 1993
June 22, 1993
January 24, 31, 1995
DECISIQN
The grievors, Mr. A. DiRuzza and Mr. D. Willis, are
correctional officers employed at Wellington Detention Centre in
Guelph. In grievances dated December 19 and December 20, 1991,
the grievors claim that the Employer has failed to make
reasonable provisions for their health and safety by virtue of
their periodic assignment to the female area of the institution
It is the position of the Union that this assignment exposes
correctional officers to allegations of sexual assault which
could be refuted only by the officer himself. It is the position
of the Union that this situation creates a dange~ to the health
and safety of the grievors by virtue of stress associated with
the potential necessity of defending themselves against an
unfounded complaint where there is no witness to corroborate that
they did not engage in wrongdoing. It is the position of the
Union that the Employer's obligation to make reasonable
provisions for the health and safety of the grievors requiresit
to assign another officer to the female area, preferably a.women.
In the alternative, the Union requests that cameras be installed
to monitor the activities in the area.
Wellington Detention Centre houses inmates on remand or
serving sentences of less than 120 days. In addition to male
inmates and young offenders, the institution provides custody for
female inmates. In accordance with guidelines established in
June, 1992, subsequent to the grievance, sentenced females are to
be transferred to another institution no later than the next
2
business day after the~day of arrival. Remanded females are to
be transferred to another institution unless the remand date is
within two business days. Four beds in the institution are
designated as female beds. Female inmates may be transferred to
a segregation area on the third floor but the focus of this
grievance is the two'cell, four bed, female area in the basement.
As a general rule, correctional officers rotate through
assignments and in the ordinary course any correctional officer
will be assigned to the female area 14 out of 100 shifts. There
are a number of female officers employed at Wellington Detention
Centre, however, in accordance with the Ministry's general
.policy, both male.and female correctional officers are given the--
female area assignment. In the fiscal year April 1, 1991 to
March 31, 1992, there were 116 female inmates in total
incarcerated in the institution. The average that year was 1.4
female inmates a week. However, there is not always a female
.inmate.incarcerated in. the'female area and on those occasions
there is no need to assign a correctional officer to the area.
While a correctional officer is assigned to the female area
area he or she works alone. The shift supervisor's office is in
the basement and that person may be in the area. Laundry workers
and cleaners will also be in this area at some times. However,
there are occasions when the correctional officer assigned to the
area is alone with inmates. While the correctional officer is
'carrying out the assignment in this area, the doors to the cells
3
are locked. The key to the cell doors is kept in the control
module on the main floor of the inst'itution. If there is a
situation which requires the cell doors to be open, such as the
transfer of an inmate, another officer is present. When female
inmates use the toilet they place a blanket over the bars to
preserve their privacy. When a female inmate takes a shower, a
female correctional officer comes t0 the area to supervise.
There is a Ministry policy providing that female inmates will be
frisk searched only by a female correctional officer, except in
cases of an.emergency. In such emergency cases the shift
supervisor and the escorting police officer are to observe the
search.
Although there will always be the barrier of the cell door
between a correctional officer and a female inmate while the
correctional officer is alone in the area, the grievors testified
that they were concerned that a female inmate could allege that a
correctional officer reached though.~the bars and assaulted her,
that he made an offensive gesture or that he exposed himself.
The grievors testified that the potential for this kind of
allegation, where there would be no evidence to corroborate their
denial of wrongdoing, causes them considerable stress. Mr.
Willis indicated that it was his understanding that the onus of
proof of his innocence would lie with him in the event of such
allegations. The grievors acknowledged that allegations of
improprieties of a sexual nature could be made against them by
4
male'inmates, however.they were of the view that the culture of
the.institution makes such allegations unlikely. They were also
of the view that such allegations would not be given any
credence.
Mr. Willis testified that because of the potential for an
unfounded allegation he attempts to avoid assignment to the
female area.. He ~ccomplishes this by exchanging shifts with
other correctional officers or taking a vacation or lieu day.
Both Mr. Willis and Mr. DiRuzza were of the view that their
concerns.about.the..assignment would be alleviated if there were
another officer there who could witness any interaction between
themselves and the inmate and thus'could confirm that they had
not engaged in any wrongdoing. Both grievors expressed the view
that it would be most appropriate for this assignment to be made
to a female correctionai'of~cer because it was felt that'a
female officer would be more credible as a witness to events
~elating to allegations of sexual misconduct, thus resulting in a
more expeditious dismissal of unfounded complaints.. In the
alternative, it was felt by the grievors that a camera which
would monitor the events in the area would deter inmates-from
making unfounded complaints or, if complaints were made, would
corroborate their innocence. Mr. DiRuzza testified that he
believed that a camera system which could be monitored in the
shift IC's office could be purchased for around $400.00.
5
Shortly prior to'the grievances there was an incident where
a female inmate in segregation on the third floor claimed that
she had been raped. Mr. DiRuzza testified that the inmate was
obviously "disturbed". While at the institution she engaged in
yelling, screaming and shouting profanities. In accordance with
Ministry policy, the allegation was reported to the police and ~ln
investigation was conducted. Mr. DiRuzza, along with a number of
other correctional officers, was interviewed by the police. The
police investigation determined the allegation to be without
foundation and no criminal charges were laid.
.. There was some discrepancy in the evidence as to precisely
when Mr. DiRuzza became aware of the allegations and when he wa~3
advised that the investigation disclosed no wrongdoing. Howevers,
Mr. DiRuzza testified that he found the process very stressful.
He testified that he was advised of his rights in connection with
making any statement to the police 0~fice~, a situation which he
found disturbing. While he did not articulate his feelings
precisely in these terms, it was apparent that Mr. DiRuzza felt
that he was treated as if he may well have engaged in wrongdoing.
He felt it necessary to tell his parents, with whom he was living
at the time, about the allegation because of his concerns that
they would be made public. He testified that other correctional
officers made jokes about the allegation, suggesting that they
would be seeing him in prison, which he found offensive. Mr.
Willis testified that he heard people talking about the
6
allegation while he was in youth court.
The institution has been in operation since 1981. Mr. D.
Poynter, superintendent at Wellington Detention Centre, testified
that he searched the institution's records and that other than
the incident that Mr. DiRuzza testified about, no police
investigations of allegations of the type the grievors expressed
concern about have'been undertaken. There was an instance where
a female inmate complained about the nature of the frisk search
that she was given by a female correctional officer, alleging
that she had touched her breasts inappropriately. When~
-.interviewed, .the inmate.stated that she could have been mistaken
about the matter and no police investigation was initiated.
Mr. Poynter testified that the assignment of another staff
person for the female cell area on a continuous basis would
require the ~iring of.at least five full-time classified
employees, with an annual cost of about $300,000.00. However,
Mr. Poynter acknowledged in cross-examination that by virtue of
the fact that female inmates are'not always in custody at the
institution, there will be times when the area would not have to
be staffed, resulting in a cost somewhat lower than $300,000 a
year. To assign female correctional officers to the area would
require the female staff to spend a good deal of time in this
area, limiting their opportunity to be exposed to other areas in
the institution. This would violate Ministry policy which
7
provides that with the exception of work assignments which
require assignment of correctional officers of the same sex as
the inmate in order to preserve inmate modesty, all duties a~e to
be performed by correctional officers of either sex.
With respect to the issue of monitoring the area by camera,
Mr. Poynter testified that coveragei of the area would require at
least three cameras. He took issue: with Mr. DiRuzza's estimate
of the cost of such a system. Mr..Poynter testified that the
cost of a system involving two cameras monitored in the central
control area was in excess of $30,000.00. That cost included a
~door locking system however, and Mr. Poynter was uncertain as to
how much of the total cost was allocated to the locking system.
The relevant provision of the Collective Agreement is the
following:
18.1 The Employer shall continue to make reasonable
provisions for the safety and health of its
employees during the: hours of their employment.
It is agreed that both the Employer and the Union
shall co-operate to the fullest extent possible
in the prevention of accidents and in the
reasonable promotion' of safety and health of all
employees.
Counsel referred us to a number of decisions of the
Grievance Settlement Board in which, this provision has been
considered. Some of the decisions arise from grievances in
correctional institutions and are of particular assistance in the
circumstances before us.
In Ministry of Correctional Services and OPSEU (u~ion
Grievance) 69, 70/84 (Samuels), the Board dealt with two
grievances alleging a violation of Article 18.1. The grievance
relevant to the case before us was a claim that Article 18.1 was
violated by virtue of the Employer failing to assign a
correctional officer to a certain area of the institution. The
concern was that an officer could be overpowered while alone and
the Union's position was that the Employer's obligation to make
reasonable provisions for health and safety required that an
additional correctional officer be assigned to the area. 'The
Board noted that there had never been an incident of that type in
~the.twenty.years,in-which the~assignment had been in existence
and that there were precautions that could be taken by the
officer. At pp. 6-7 the decision states as follows:
Article 18.1 speaks of "reasonable" provisions
(emphasis added) for the safety and health
of the employegs'. And this is echoed in
section 14(2)(g).of the Occupational
Health and Safety Act .... There is no obligation
to guarantee an employee's safety against every
possible risk, no matter how remote the possibility
that it will occur. The collective agreement and
the.legislation contemplate "reasonable" precaution,
The decision goes on to note that the Correctional Services Act
specifically contemplates contact between correctional officers
and inmates, with the inevitable result that not all risks can
be eliminated. At pp. 7-8 the decision states that: "It is
necessary to balance the safety of the employees against the need
for care and custody of the inmates and the purposes of the
institution". The grievance was dismissed on the basis that the
9
Union had failed to demonstrate a real or serious possibility of
harm.
Probably the most similar case to the facts at hand is
~iRistry of Correctional Services and OPSEU (Tavlor-BaptistE~
(Dissanayake), in which the grievor claimed that the Employer had
failed to make reasonable provisions for his health and safety by
virtue of the feeding procedures that were employed at the
institution. The grievor was required to work in the day area
with 30 inmates at meal time. Each inmate had a spoon, which
could potentially be used as a weapon. There was one incident
where a number of inmates had various complaints about their
food, which resulted in a good deal of shouting on the part of
inmates, including calls for a riot. The inmates concerns were
dealt with and the incident did not escalate.
After referring tO some previous decisions of this Board,
including Re Union Grievance, (Samuels), supra, the decision
notes at p. 14 that:
It is generally conceded thatla CO's job is inherently
more hazardous-than most other jobs in the Ontario
Public Service. That is a relevant factor because
what is a reasonable precaution for a clerk working
in a government office will not be the same for
a CO. ,
The decision later indicates, as do many decisions dealing
with Article 18.1, that the Union is not required to demonstrate
actual injury or harm. It was ultimately concluded that,
although there may have been methods of ~roviding for greater
safety for-the grievor, %he evidence did not establish '
objectively that the grievor was exposed to a real and
unnecessary risk. At page 24 of that decision the Boar~ made the
following observation:
There is no question that from the g?ievor's point
of view, the proposed slot system is safer than the
existing procedure. However, as the Board observed
" it
in Re MoUlton, 230/88 (Watters) at p. 12, ...
is not enough to show that the granting of a remedy
might improve safety within the workplace. Rather
the union must establish that the working conditions
suggest a real or serious possibility of harm". One
might be able to come-up with a number of proposals,
which this Board may be convinced, will make a ~O's
job safer than it is. However, optimum safety is hot
the test of article 18.1.
.In Ministry of Correctional Services and OPSEU (Stockwell)
t764/87 (Wilson) a further qualification as to the appropriate
test under Article 18.1 is expressed in the following terms:
~"There are inherent risks that go with the job but a Correctional
Officer is not required to meet unnecessary dangers or risks".
In Minlstrv of Correctional Services and OPSEU CWatts/King)
(Kaplan) 1367, 1368/90, where the Employer had increased the
number of patrols from one or two to six or seven during "lights
out", the Board found that the Employer had violated Article
18.1. At. p. 27 the decision states:
In our view, it is not unreasonable in a case where
the union has demonstrated some degree of risk to
the safety and health of' employees to require the
employer to explain, if not justify, the necessity
amd reasonableness of that employer-imposed risk.
11
In a safety and health matter it is simply not
sufficient for the employer to.state that it
believes a certain amount of increased risk is
necessary without taking the next step and
convincingly explain why. A failure to take
this next step leads to the conclusion in the
instant case that while the employer considers
increased patrols desirable (and some reasons
were given in support of this Position), it has
not fully turned its attention to the potential
safety and health consequences.of the increase
in patrols for its employees, nor has it care- ...
fully assessed whether such an increase conforms
to the requirements of Article:lS.1. In light
of the evidence and arguments we have heard, and
in the absence of any explanation why the -
investigators recommended an increase in patrols
to two per hour, or why this was later reduced to
one per hour, we find that the increase is unnecessary
and constitutes a violation of~Article 18.1. Simply
put, we are of the view, based'on the evidence we
heard, that the requirement for hourly patrols is
unnecessary to maintain the security of this part of
the institution. This requirement unnecessarily
increases the risk to Correctional Officers.
Prior to applying the principles expressed in theses.
decisions to the facts before us it'is necessary to address the
analysis contained in Watts~King, supra. Mr. Jarvis suggested
that this decision sets out an analysis that is inconsistent with
the general approach taken in previous decisions of the Grievance
Settlement Board and, in particular, misconstrues the "balancing"
principle set out in Ministry of Correctional Services and OPSEU
(Union Grievance (Samuels), suDra. We are unable to accept this
submission. While the precise terms of the analysis of Article
18.1 varies from case to case, in our view the analysis in
Watts/Kin~ is not inconsistent with'the principles expressed in
earlier cases, in that case there was a departure by the
12
E~ployer from a particular practice~to another practice~ exposing
correctional officers' to"greater risks, without justification
from the Employer from a security poiht of view. The essence of
the decision i~ that when a justification for 'a greater risk is
n°'t established in the context of its operations the Employer's
actions cannot be viewed as reasonable. In our view, this
analysis does not depart from the principle expressed by Mr.
Samuels to the effect that there is to be a balance ~f the health
and safety of employees against the need for care and custody of
the inmates and the purposes of the institution.
In the case before us, unlike the situation in Watts/K$~q,
there is no issue of a change of practice exposing correctional
officers to a greater risk than previously existed, without
justification from-the Employer from a security point of view.
Here, the issue is whether the assignment of the grievors to Work
alone in the female area basement is an unnecessary danger or
risk to their health and safety by virtue of the possibility of
an Unfounded allegation of misconduct of a sexual nature and the
necessity of defending themselves against such an allegation.
As Mr. Eady emphasized, there has been'an unfounded
complaint of sexual misconduct in this institution, albeit not in
this particular location, that resulted in a police
investigation. We have no hesitation in accepting Mr. DiRuzza's
evidence that being the subject of a criminal investigation was
13
stressful and that Mr. Willis experiences stress associated with.
his concerns about such a situation arising when he is assigned
to the female unit. Whether or not the evidence before us is
sufficient for a finding that the grievors objectively face a
risk or danger to their health and safety by virtue of stress is
not a matter that need be specifically addressed, as it is our
view that any such risk or danger is one that they are reasonably
required to assume as correctional officers.
The job of a correctional officer requires him or her to
deal with inmates, a situation that will inevitably p~esent
challenges and difficulties. In the environment of a
correctional institution it is not surprising that unfounded
allegations against correctional officers arise. When such
allegations are made, they must be investigated and serious
allegations are appropriately dealt with by the police in
accordance with Ministry policy, as they were in the allegation
involving Mr. DiRuzza. The situation before us is not one where
correctional officers have had to face unfounded allegations of
sexual misconduct on a frequent or ongoing basis. We understand.
Mr. DiRuzza's concerns as a person involved in the law
enforcement system about any challenge to his integrity,
particularly in relation to an allegation of sexual assault.
However, there is no evidence establishing a basis for a concern
that such unfounded allegations will" not be dismissed as such, as
they were in the case involving Mr. DiRuzza. As well, we note
14
that Mr. Willis' concern that the onus is on him to establish
that he did not'engage in wrongdoing is not accurate.' In any
criminal or disciplinary proceedings relating to the k~'nd of
allegations that Mr. Willis has expressed concerns about, there
does not exist a presumption of guilt on the part .of the accused.
To require the Employer to assign another employee to the
basement or provide camera equipment to record events in the area
might well have the effect of deterring such complaints and/or
corroborating an employee's denial of an unfounded complaint of
sexual misconduct. H6wever, and aside from other issues
associated with giving this assignment to a female correctional
officer, the costs of assigning another employee to the basement
area would be extremely high. It appears, although there was
some contradiction in theevidence in this regard, that there
would also be considerable costs associated with the installation
of camera equipment in the area. There was also a real issue as
to how such a system might be effective in corroborating a
correctional officer's denial of misconduct, given that an
allegation might arise sometime after the date it is alleged to
have taken place.
While, as in Taylor-Baptiste, supra, the implementation of
the suggestions made by the grievors might well assist in
alleviating any risks to the health and safety of correctional
officers that may exist by virtue of their assignment to the
female area, optimum safety is not the test under Article 18.1 of
the Collective Agreement. On the' evidence before us we are not
persuaded that the Employer has failed to make reasonable
provisions for the health and safety of the grievors and
accordingly conclude that a violation of Article 18.1 of the
Collective Agreement has not been established. We wish to note
parenthetically that the issue of cameras in the area appeared to
arise somewhat late in the course of these proceedings and it may
be to the benefit of the parties to explore this matter further.
However, for the foregoing reasons, the grievances are dismissed.
Dated at Toronto, this 16th day of March , 1995.
S.L. S~ewart, Vice-Chairperson
D.C. Montrose, Member