Loading...
HomeMy WebLinkAbout1992-1727.Wilson.93-09-28 -, ONTARIO ,~;' EMPLOYES DE LA COURONNE c:' ., ir~ CROWN EMPLOYEES DEL'ONTARIO - GRIEVANCE COMMISSION DE 1111 SETTLEMENT . REGlEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-138 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-139 1727/92 IN THE MATTER OF AN ARBITRATION Under 'THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Wilson) Grievor - and - '-- The Crown in Right of Ontario ~Ministry of correctional Services) , Employer BEFORE: W. Low vice-Chairperson G. Majesky Member J. Miles Member FOR THE C Flood UNION Counsel Koskie & Minsky Barristers & Solicitors FOR THE A pruchnicki EMPLOYER Grievance Administration Officer Ministry of Correctional Services HEARING June 9, 1993 August 18, 1993 C ~ . ~ \' I ~- - .~ DECISION J \ This gnevance IS brought by Paula Wilson, who is employed as a correctional officer at t~e Maplehurst Detention Centre. She grieves that she was unjustly disciplined Ms. Wilson was dIscIplined for "unprofesslOnal conduct" and was given a wntten reprimand dated July 8, 1992 The incident which gave rise to the discipline occurred on May 23, 1992, at the beginmng of the "C ShIft" which begins at about 10'45 a.m. with muster and the shift proper beginning at 11 00 a. m The muster is the pre-shIft meeting during WhICh any necessary and relevant information is disseminated to the correctional officer staff prior to their going on to their ShIft. At muster, incIdents whIch took place during the pnor shift, anticipated events of J note, and anythmg which is expected to be out of the ordinary is announced so that the correctional officers are kept fully posted as to activities going on in the Detention Centre. Prior to the morning of May 23, 1993, Frances Pedder, the volunteer programs co-ordinator at the MaplehurstCorrectlOnal Centre, the sIster institutlon in the complex, had circulated a memo to the management at the .Maplehurst Detention Centre announcing that she \ would be taking a tour of volunteers through the Detention Centre on the morning of May 23, 1993 During the course of muster that morning, however, no mention was made of this tour Nor was there prior mention of it. ( ;:" c 0} 2 At approximately 11 00 a.m , when Ms. Wilson was entering into the inmate area of the Detention Centre together with several of her colleagues to start the shift, she encountered Ms. Pedder's group of volunteers, numbering approximate!y 20 It was at this point that the incident took place which led to the dIscipline which IS being grieved Frances Pedder testified that she was in the process of providing an orientation tour for prospective new volunteers, part of which was a tour of the Detention Centre. She testified that she had about 17 people in tow and that they were about to leave the Detention Centre when Ms. Wilson came out and said. "Who are these people?" Ms. Pedder testified in chief that her reply was. "Volunteers cleared", and that she said nothing more. It was Ms. l Pedder's testimony that Ms. Wilson then responded "Well, excuse me", wIth an emphasis on the word "excuse" She testified that another correctional officer, Ms. Haring, came out and Ms. Wilson- asked Ms. Haring. "Do you know who these people are, Ms. Haring?", to which Ms. Haring replied that they were volunteers. Ms. Pedder testified that Ms. Wilson then said something to the effect of' "Volunteers, what do you know!" Ms. Pedder testified that Ms. Wilson continued miling sarcastic nOIses, to which she did not respond. Ms. Pedder testified that she apologIzed to the volunteers and departed wIth them to the staff cafeteria. Ms. Peddler testified that after the tour was finished, she sought out Ms. Wilson and stated that she was very upset and angry at the way she had treated her in front of members of the public. She testified. "I didn't lIke the way she harassed me" Ms. Wilson's reply was _u u. -~- - ---'. --~ . --- +-- ~ - --- -- r ( " i) , 3 I , i I c that she had a, right to challenge anyone in the corridor After a short conversation during which I each expressed her views, they exchanged apologies and the encounter ended with them shaking i hands. On cross-examination, it was acknowledged by Ms. Pedder that her group were not I I I weanng Detention Centre identification tags and that she was not wearing Mimstry identification showmg that she was a staff member She acknowledged that Ms. Wilson asked twice who her group were, and that It was on the second enquiry that she replied something to the effect of' I ! "Don't worry; they are all cleared - volunteers" She acknowledged it was possible that she did I not identify the group as volunteers. Ms.Pedder was wearing civilian clothes, no Ministry identification, was not expecting to be challenged in the Detention Centre and was unaware of i the polley not to have tours of over 12 people. Ms. Pedder filed an occurrence report on May i 25, 1992 to the superintendent setting out her complaint about Ms. Wilson's behaviour \ It was alleged that several letters were received from the members of the I ! prospective volunteer group making similar complamts, but only two of the volunteers were .j i called as WItnesses at the hearing One of the volunteers who wrote a letter to the supenntendent was Maureen Walker Ms. Walker did not recall what was said. She testified , ! that It was the tone of VOIce used by the guard m speakmg to Ms. Pedder that was very ! embarrassing, and she formed the impressIOn that the guard was addressing questions to Ms. I I Pedder in a rude manner Ms. Walker testified that Ms. Pedder did not respond but simply , i carried on. Ms. Walker also testified that her letter of complaint which is dated June 11, 1992 was written in response to a request made by Frances Pedder to her to write it. She indicated -- - c- { 4 that in the absence of the request by Ms. Pedder, she might or mIght not have written her letter to the superintendent. Ms. Walker confirmed that Ms. Pedder was nqt wearing Ministry iden tIficatlOn She also acknowledged that she had never been in a maximum security facility prior to that occasion and had no experience as to how guards would respond to strangers in the Detention Centre. She testified that she recalls neIther the question nor the response, namely the exchange between Wilson and Pedder, and that she did not recall Ms. Pedder identifying either herself or the group The second volunteer whose evidence was called on behalf of the employer was , ( Barbara Fehrman Ms. Fehrman has had several years expenence as a volunteer in the correctional centre as opposed to the DetentIon Centre. She assists the chaplain every other Sunday leading the singing and assisting with coffee and conversation thereafter Ms. Fehrman went on thIS tour WIth her husband who wasconsidenng becommg a volunteer, and they were at the back of the group wh~n the incIdent took place. Ms. Fehrman testified that she did not r ') know what was said. She saw that Ms. Pedder was embarrassed and she herself was upset because Ms. Pedder was embarrassed. She testified that Ms. Pedder said to the group words to the effect of' "If by chance you come upon a guard who IS havmg a bad day, don't respond in hke manner; juSt report It" Ms. Fehrman tes~Ified that it was definitely "like we weren't supposed to be there" Ms. Fehrman's letter was not solicited by Ms. Pedder; she stated that It may have been a suggestion that arose after her discussion of the situation with SIster Barbara, the chaplain Ms. Fehrman testified that she did not think that the guard shouted and did not , - -- --- _u __ --- - - - ~~;~: 5 know what was asked by the guard She knew only what Ms. Pedder said afterwards to the volunteer group It was her impression that Ms. Pedder did not say much of anything to the guard. ~ We heard evidence from Ms. Wilson and from three of her colleagues, Ms. Haring, Mr Hillen and Mr Chroust. The evidence of Ms. Wilson, Ms. Haring, Mr Hillen "- and Mr Chroust is consistent in that all testified that muster, which had been conducted that morning by Mr Pedder, the officer In charge who, coincIdentally, is Frances Pedder's spouse, did not disclose that there was a tour of volunteers that morning. Th~ir evidence was consistent that the group were not wearing Detention Centre identification and that there was no one wearing Mimstry identification \ Ms. Wilson testified that when she saw the group, which she estimated to be 17 or 18 in number, she saw no identification on them, and saw no one wearing Ministry identification either All were in civilian clothing. She testified that she did not see anyone who appeared to be in charge of the group and she asked generally' "Excuse me, can you identify who you are?" She testified tqat she received a response from a female: "Don't worry, they've all been cleared." That personbnefly turned around and proceeded on WIth the group Ms. Wilson testified that the response was not adequate and she asked her fellow officer, Ms. ! Hanng, who was coming toward her If she knew who the individuals were. Ms. Haring \ responded that they were volunteers and Ms. Wilson testimony is that she thanked her and " - ---- - ~ C \ 6 continued on her way Ms Wilson testified that later that day when she went to her break: she was confronted by Ms. Pedder who alleged that her conduct was unprofessIOnal and that her behaviour was Inappropriate. Ms. Wilson testified that Ms. Pedder was in civilian clothes and had no Ministry identification and Ms. Wilson at that pomt asked Ms. Pedder who she was, and upon being told her name, asked her status wIth the Ministry Ms. Wilson testified that she and Ms Pedder exchanged their perspectives of the mcident and the encounter concluded on a handshake. Ms. Debbie Haring, a correctional officer at the Detention Centre, testified that she was in the process of going out to the lavatory from the inmates' area when she encountered about 20 people in the hall. She testified that Ms. Wilson asked her if she knew "who these people were", that she had a brief exchange with Ms. Wilson, replYIng that she thought they were volunteers. Ms. Haring inferred that the group were volunteers because she recognized Ms. Pedder Unlike Ms. Wilson who had no prior knowledge of Ms. Pedder, Ms. Haring had seen Ms Pedder before and knew her to be the volunteer programs co-ordinator Ms. Haring confirmed that no information had been received that there would be a volunteer tour that day She testIfied that there was no rudeness or anger In Ms. Wilson's tone and did not _perceive anything in Ms. Wilson's conduct to raise any cause for concern. She testified also that if she were to run into an unknown person she would ask who that person was and expect in response (' t \ - "-.....J 7 that person's name and department. A response of "Don't worry - all cleared" would not in her view be a sufficient answer Ms. Haring testified that she dId not hear the exchange between MS. Pedder and Ms. Wilson, but was testifying only as to the exchange between herself and Ms. Wilson, which she indIcated contained nothing to suggest to her mind unprofessional conduct. Craig Hillen, a correctional officer who was in the area at the same time, coming onto the shift with Ms. Wilson, testIfied that a group of more than 2 or 3 is considered to be a large tour, and that the correctional officer staff would expect to be adv!sed If there were gomg to be a group lof as many as 20 people. Mr Hillen testified that after muster he and his colleagues were heading to thyIr posts when they encountered a group of what he estimated to I be 20 to 30 people. He dId not know who they were and did not see any person who appeared to be a staff member He testified that Ms. Wilson enquired who they were and at first there was no reply He testified that Ms. Wilson asked agam who they were and a woman said. "It's all right; they've all been cleared" Mr Hillen testified that Ms. Wilson was polite when she asked the question the first time and that she Was polite when she repeated the questIon It was I his view that the response was not adequate and that the person answering the question herself , had no IdentIficatIOn Mr Hillen testIfied that the reply was somewhat "snappy" or "snarky" He indicated also that he would be very concerned in the face ofa large group of unidentified people walking through the Detention Centre as this is a maximum security area and there is a concern about hostage taking and/or SImilar perils. He testified that if Ms. Wilson had not asked for identification of the group, another one of the correctional officers would have done so He J C' /' \.", <;.;;' i i 8 10dicated that there was nothing insult10g in the tone Ms. Wilson used and that there was no evidence of any upset in the group of volunteers. Mr John Chroust, another correctional officer, testIfied that after muster, C shift went en mass to the operational area and came upon a large group of people in civilian dress. He testified that Ms. Wilson approached the person who appeared to be the leader and' said. "Excuse me, ma'm, can you tell me who you are?" He testified that Ms. Pedder'g response was. "Don't worry, we've all been cleared", whIch response was not, 10 his view, responsive to the question He testified that Ms. Pedder's tone disclosed that she was slIghtly upset at being asked the question Neither Mr Chroust nor Mr Hillen were asked for an occurrence report by the employer Ms. Haring was asked for a report and gave one. None of the witnesses called \ corroborated Mrs. Pedder's statement that Ms. Wilson made rude or sarcastic noises or comments in response to Ms. Haring's reply that the group were volunteers. It was the evidence of Dwight Carroll, the deputy superintendent at the Maplehurst Detention Centre, that It was the employer's VIew that the allegatIOn of unprofessional conduct had been made out, that members of the public had been involved, and that, accord1Ogly, discipline should be meted out in the CIrcumstances. ( ( 9 The issues before us are threefold. 1 Is the factual allegation of unprofessIOnal conduct made out? 2 Is it cause for discipline? 3 Was the dIsciphne appropriate in the cIrcumstances? The charge of unprofessIonal conduct is founded upon an allegation that Ms. vVilson used a particular tone of voice which caused embarrassment to Ms. Pedder and which may have had the effect ofdampenmg the enthusiasm of potential volunteers to become volunteers at the Detention Centre. In our view, the incident was triggered by the failure on the part of the employer to give notice at muster that this volunteer tour would be taking place. Had the tour been announced at muster by Mr Pedder, the officer in charge, Ms. Wilson would have expected the presence of the group,and would not have had to challenge the group as to their identity It is Ms. Wilson job, as it is the job of the other correctional officers, to maintain the security of the detention area. This entails not only keeping detainees secured, but also involves seeing to the safety of civihans m the area. Ms. Wilson testified that she was cntIclzed on a prior occasion for failing to challenge and to ascertain the identity of a visitor It IS the correctional officers' duty to know who is in the area and what their business is. That is what the public expects of them That is what their employer expects of them It is acknowledged on the part of the employer that Ms. Wilson had a right to challenge and -to ascertain the identity of the visitor group It is acknowledged that she SaId nothing abusive, foul or profane. The discipline is for her tone of voice. i .~ ("' : t--~ 10 \ i This incident owes its genesis in part to the lack of announcement of the tour by management at muster and in part to a clash of cultures. The Maplehurst Detention Centre is a maxImum secunty jail It IS not the tea room at the Empress Hotel. The culture is a paramihtary culture and correctional officers are expected to assert control over the inmate area. It would be remiss of a correctional officer to make the assumpton that a stranger was properly in the area simply because of the stranger's presence there, a correctional officer is expected to know who is WIthin the area, where they are and why they are there. Ms. Pedder, having anticipated that the contents of her memo announcing the volunteer tour had been dIsseminated, did not expect to be challenged She was taken aback at bemg challenged. Perhaps she was offended at bemg challenged. In our VIew, the offence that she took at being challenged coloured her perception of the tone bemg used in making the challenge. We are not satisfied, ,.; in any event, that the tone used by Ms. Wilson in her enquiry was objectionable, nor that the tone used by Ms. Wilson m her enqUIry of Ms. Hanng as to the identity of the group was I objectionable. We cannot find on a balance of probabilities that the tone used by Ms. Wilson I I was ObjectIOnable m the setting or that it constituted unprofessional conduct. The evidence of I I Ms. Haring and of Mr Hillen and Mr Chroust, the latter two of whom appeared under summons was, in our VIew, credible and dIsclosed no sarcasm or rudeness on the part of Ms. Wilson's manner of speech. The evidence of the two volunteers was not helpful since neither heard the exchange, and both volunteers were reactmg to the reactions of Ms. Pedder who was embarrassed or offended at having been challenged Ms. Pedder acknowledged that her reply in response to Ms. Wilson's question was "curt", but curtness was perhaps not the most - . -- (, (,.. - -. '-~;l.,\' '0.'- , 11 significant aspect of her response. On first questIoning, she did not reply at all, and when she did, her reply was unresponsIve and, ro:guably, dismissive. It was not an adequate or proper response In this settmg and reflected what appears to have been an madequate appreciatIon of the seriousness with which correctIonal officers are to take theIr obligation to know the identity and reason for the presence of strangers in the detention area. Weare not satisfied on the evidence that the tone used by Ms. Wilson was rude or msultmg, and we are not satIsfied on a balance of probabilities that she made sarcastic comments to Ms. Haring about the presence of the volunteers. Ms. Pedder's evidence was inconsistent and she gave several different verSIons of what her reply was to Ms. Wilson's question Her evidence in this respect is also inconSIstent with the account contained m her occurrence report as to what her answer was. On the evidence before us, we find there IS no reliable cogent proof of unprofessional conduct. It is understandable for the employer to be sensitIve about the c~nduct of correctional officers in the presence of members of the public, but it must also be remembered that the primary functIOn of the Detention Centre is to detain dangerous offenders and persons charged with serious crimes. WhIle It may be desirable that volunteer programs be Implemented within these institutions, it is not the primary responsibility of correctional officers to be ambassadors to prospective volunteers. It is the pnme responsibIhty of correctIonal officers to maintain security To discipline a correctional officer for the tone of voice us~ in the discharge of what clearly are her duties is a very dangerous road to embark upon Prison is not a place \ for the faint hearted There will always be members of the public who will complain about --- ( ( '~.; .....~ ,~ ,It . 12 matters of decorum Such complaints, however, do not necessarily indicate the presence of cause for discipline, and a complaInt by a member of the public should not colour management's decision to dIscipline or not to disciplme. That is a matter to be determined on the merits .and not by public opimon In the cIrcumstances, the gnevance wIll allowed and the disciplIne wIll be expunged from the Gnevor's record. DATED thIS 28thday of September,,1993 -- vC --...... "" W LOW Vice-Chairperson .J ~j~'?::e~ ----- --- ..- - - -- - ~- .-