Loading...
HomeMy WebLinkAbout1992-2050.McPhee.93-10-21 ONTAR(O ~C. t"'-~ -- -- ..- -..,---. - , -,- EMPLOYES DE LA COURONNE ''v:._''''''- - CROWN EMPLOYEES DE L 'ONTA RIO - 'r ti?- 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G IZ8 TELEPHONE/TELEPHONE (416i 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G IZ8 FACSIMILE /TELECOPIE (416) 326-1396 2050/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McPhee) Grievor , - and - The Crown in Right of ontario (Ministry of Correctionai Services) Employer BEFORE: A.Barrett Vice-Chairperson J.C Laniel Member J Miles Member FOR THE M. Bevan UNION Grievance Officer Ontario Public Service Employees Union FOR THE A. pruchnicki EMPLOYER Grievance Administration Officer Ministry of Correctional Services HEARING May 12, 1993 August l3, 1993 , September 1, 2, 1993 ~-- C~' .,....,., ~~ " :.,-.. D E CIS ION ,:,,:,,~.,' 1,1'1 (i} Mr McPhee, who is a correctional officer at Hamilton- Wentworth Detention Centre, grieves a 20-day disciplinary suspension without pay for using excessive and improper force I \ against an inmate and directing a racial slur at him The letter setting out the penalty and the reasons for the penalty was written by Acting Superintendent Morris and is reproduced below "August 5, 1992 Mr D McPhee Apt. B 247 Young Street Hamilton, Ontario LaN 1W1 Dear Mr. McPhee A meeting was held in the Boardroom of the Hamilton- Wentworth Detention Centre on Friday, July 31, 1992 at 10 00 hours to discuss the allegation 1 That on July 21, 1992 you did physically assault an inmate 2 That on July 21, 1992 you) behaved in an unprofessional manner in that you did utter a racial s~ur directed at an inmate. I At this meeting were yourself; Mr C. Boles, your employee representative; Mr J Featherstone, Senior Assistant Superintendent; and myself Information was presented to support the allegation and you were given the opportunity to refute the allegation or to mitigate your actions In reference to the first allegation, I find that you did admit to striking the inmate and I have det~rmined that the amount of force used was excessive and improper Such behaviour is an abuse of your position C!-ndcannot be condoned :I am, therefore, imposing a penalty of a fifteen day (120 hour) suspension without pay -... \ - ( t \1:? ' 2 '" n In regard to the second allegation, you admitted to making tJ1e racial slur directed at the inmate-. You have agreed that such comments are totally unacceptable Racial slurs can poison the atmosphere of an institution and seriously jeopardize the relationships between staff and inmates. I am, therefore, imposing a penalty of a II five day (40 hour) suspension without pay The specific dates of your suspension will be the twelve hour shifts normally worked August 7,8, 9, 12, 13, 17, 18, 21, 22, 23, 26, 27 and 31, 1992 and the first four hours of the shift scheduled for September 1, 1992 This supercedes my letter to you dated July 31, 1992 regarding the terms of your suspension I must also warn you that any future incident involving either excessive force or racial slurs may result in your dismissal Sincerely I F W Morris Deputy Superintendent" The Shift Supervisor on duty on the night in question was Mr Farkas, and he arrived at the day room area where the incident occurred just after it was allover, and several other correctional officers who had responded to the blue alert had matters ~ell in hand. He was advised that there had been a physical altercation between inmate Toth and Mr. McPhee. Mr. Farkas asked the inmate what had happened, but he refused to provide an explanation and insisted that his lawyer and the police be called in order that he could lay an assault charge against Mr. McPhee Mr Farkas then went to see Mr McPhee, who was in a staff room, and as.ked him what had happened As a result of what Mr McPhee told him over the next few minutes, Mr Fa~kas decided that Mr McPhee had used excessive force and was in the wrong He ordered Mr McPhee down to his I \ \ ~"'::' , ~.~~;;.~ ;~ ':~...'" 3 ~ " office on another floor to talk further with him. First, he sent Mr McPhee out of the building to get coffee, ~s he says, to allow him time to cool down He used the time Mr McPhee was absent to telephone the "on-call" duty officer, Mr Faajertag, and brief him on the incident He told Mr Faajertag that Mr. McPhee struck the prisoner several times- in response to name-calling by the inmate Mr Faajertag then telephoned Mr Morris, the Acting I Superintendent, and told him what Mr Farkas had said Then Mr Morris telephoned Mr Fatka;s and was told the same story Mr Morris told Mr Farkas to suspend Mr McPhee with pay pending an investigation He also decided to call in an Inspector from the Investigations and Security Branch of the Ministry to conduct an outside investigation By the time these tel~phone calls were completed, Mr McPhee had returned with coffee and had another conversation with Mr Farkas Mr Farkas did not make notes of this conversation, nor of his earlier conversation with Mr McPhee Mr Farkas testified that Mr McPhee admitted that he had initiated the use of force because he had become extremely upset with the name-calling by the inmate and had "lost it" Mr McPh.ee allegedly said that he could not allow an inmate to get away with that kind of name-calling and he J had to protect his reputation. He also talked about his father who had a reputation as a fighter and had some golden glove accreditation. He wanted to go back up to his unit and address the inmates and staff, but Mr Farkas would not allow it nor did he ask why Mr McPhee wanted to do this Mr McPhee also said that he made -' " --. __u_ ----- G ~ 4 . ~ a mistake by doing what he did in full view of the other offenders, he should have removed the inmate from the day room where no one could see Based on what Mr McPhee said, Mr Farkas concluded that Mr McPhee had grabbed the inmate in the neck area, asked the inmate to repeat his comments, which he did, then- noticed the offender starting to bring his hands up which he interpreted as an aggressive manoeuvre, so he struck the offender in the face with his right fist The offender fell to the floor and Mr. McPhee punched him in the head area two or three additional times Mr Farkas was shocked at these revelations, which he felt revealed a very bad mentality for a correctional/officer This surprised him because he had known Mr McPhee for years and had a high regard for his skills and behaviour as a correctional officer He instructed Mr McPhee to go into the chapel and write an -occurrence report, which is required by all involved in an incident ( like this Mr Farkas also called in a union representative of the I Employee Assistance Program to help Mr _McPhee calm down and deal with his emotions Similarly, all of the correctional officers who responded to the blue alert and the officer who.. was present throughout the inc~dent were required to write occurrence reports Mr Farkas also called the police pursuant to the inmate's request A police officer came and interviewed Mr Toth and the grievor, but he refused to lay an assault charge because he did not believe the inmate's version o~ event~. ( ( ( ~ 5 ";:>.- " Mr Farkas was, aware that the inmate had a current civil suit \ pending against Correctional S_ervices Canada with reference to an earlier eye injury, and he assumed from the way inmate Toth was I talking that there would be another law suit launched over this incident He sent inmate Toth to the hospital for examination where it was revealed that his injuries consisted of multiple abrasions on the left-temple area proceeding downward to the left cheek-bone, slight scratches on the left side of his nose and a small amount of blood present in the white of his left eye ! The outside Inspector, Mr Turner, arrived at the Institution just before 6 00 a m and was briefed by Mr Farkas, who himself \ wrote an occurrence report and gave it to the Inspector The Inspector then collected all of the occurrence reports and interviewed all the makers of them and all of the inmates who were I in the day room area as well He did not have a formal interview with Mr Farkas, which is surprising because Mr Farkas had the most damaging evidence to give against Mr McPhee in the form of his alleged confession In fact, it was this alleged confession that coloured the entire investigation because any evidence that contradicted the alleged confession was not believed In particular, Mr McPhee's back-up officer, Mr Filice, who was { present at the grille of the day room area and witnessed the entire event was not believed because he said that the inmate raised his hands in an aggressive gesture before Mr McPhee took hold of him, not after Mr McPhee, in his occurrence report and in his I interview with the Inspector, also said that the inmate raised his -- - - "- ~- -- ~- - -- -- - i I 6,,' t~" -- -- .--- ~~~t. 6 '.,,1 C, .1 hands in an aggressive gesture prior to Mr McPhee taking hold of him This was the crucial difference because, as all witnesses at the hearing testified, Mr McPhee would have been justified in grabbing the inmate if he thought he was about to be assaulted. \ We set out the substance of the occurrence reports of Mr Filice and Mr McPhee which corroborate each other in all material respects, although they had no opportunity to collaborate prior to making their reports Below is Mr. Filice's occurrence report "Dear Sir, On July 21, 1992, I was working as support officer for 5A At approximately 20 25 hours POD Officer McPh~e was in the left dayroom for a tour An argument ensued between i/m (Toth) andC o. McPhee Standing at the grill I heard i/m (Toth) threaten Mr McPhee calling him a , diddler I while they were both watching a television ?rogram on the 'Kristen French murder' At this point Mr McPhee requested the inmate repeat his comment The inmate became belligerent and raised his hands in a threatening manner towards Officer McPhee In response Officer McPhee took hold of i/m (Toth) with both hands on his collar and wrestled with him to the ground in order to control him I pushed the 'all staff' button and immediately opened the grill to let officers in By this time af i s t fight ensued between C 0 McPhee and i/m (Toth) The inmate was consequently r~moved from the dayroom and placed in segregation " Next is Mr McPhee's occurrence report "Sir On the above date I was the officer in charge of 5A on the 1845-0715 shift At appro~imately 2020 I went into the left'dayroom for routine early lockup. The i/m' s were granted a late night until 2130 on request of the Hamilton-Wentworth Regional Police for the special on the Kristen French abduction After locking the cells down for early lockup only several of the i/m's entered ~ - -- _. _ !..t:._ - ~. ~ .'. - .. :: __ _ .L_~ _ - ..- ,- ---- ---- ( - - .- --> c--- (' -"".. ~ 7 their cells Seve~al ilm's asked if I would re-open some of the cells as they forgot articles in their cells I returned to the back of the dayroom to re-open the cells -.. required After re-locking the cells ilm (Toth, Richard #635575596) asked me to return back to cell t5 his cell to re-open it as he forgot something I told him that I can't be going back and forth to open cells and to get what he needed the first time However I did return to open his cell as I had re-opened several cells and it would not have been fair to not open his When I opened his (i/m Toth) cell he did push the door open against me and said 'sorry about your fucken life, just open my fucken door' When ilm (Toth) entered his cell I did say to him to 'watch his mouth and get your stuff' Nothing else transpired at this time I/m (Toth) picked up his dark blue button shirt an9 did exit his cell I then went to the front of the dayroom approximately ten yards from the grill entrance I/m (Toth) was adjacent to me approximately two yards away to my .left watching the aforementioned special telecast I did pause for a moment to observe the telecast and ilm (Toth) did say to me that I was the officer who raped and diddled the training female officers at the Bell-Cairn training development centre I did turn to i/m(Toth) and while approaching him asked him to repeat himself I did hear him say quote 'you're probably the diddler, rape hound who did the girls at Bell-Cairn' As the space between us closed I did feel ilm (Toth) was hostile Especially after what v he said to me 11m (Toth's) hands moved above his waist toward the level of his chest. I then did take hold of ilm (Toth) by the fro~t of his blue button shirt in tHe lapel area I/m (-Toth' s) hands moved towards me and I did push him backwards and with a closed hand did strike him in the face area I/m (Toth) did fall to the floor with this officer holding his right lapel I did strike ilm (Toth) in the head area as we struggled on the floor The 'ALL STAFF' button was hit by my partner officer Marcello Filice COl simultaneously and as other officers responded to the alarm the altercation ended before they got to the left dayroom in that i/m (Toth) was subdued and I was no longer fighting with him I left ilm (Toth) to my fellow officers, no other i/m' s were involved I returned to the staff station and entered the altercation in the log book as required Subsequently my lieutenant Mr Andrew Farkas OMl6 removed me from the level to inquire as to what had happened I/m (Toth) was taken to medical for assessment I did not receive any serious injury and was ordered to write this report as required This matter is currently awaiting adjudicat'ion by you or your designate Respectfully, Dennis McPhee, CO2 ) --- --........-- c\~, -_._--- ---------~ ~" ":,;.,,, 'I~~p? 8 It should be noted that a week previous that the above mentioned i/m had m~de comments that were derogatory to me for no reason Also that I did strike the i/m three or four times as we struggled, no more " Having interviewed all of the witnesses at length, Mr Turner said in his investigation report "I could not confirm if Toth had raised his hands towards Mr McPhee in an aggressive stance before the blows were administered " However, he concluded "Mr McPhee stepped towards inmate Toth and asked him to repeat what he had said and Toth obliged him Mr McPhee momentarily lost control of the situation and struck Toth several times on or about the left side of his face." All management witnesses at t1he hearing testified that if events had occurred as described by Mr. Filice and Mr. McPhee in \ \ their ~ccurrence reports and in their testimony, then Mr McPhee was justified in using the force that he did It is only because I of the sequence of events as described by Mr Farkas that he was found to have used excessive force Interestingly enough this } contradiction between what Mr McPhee allegedly told Mr Farkas and what he put in his written report was never pointed out to Mr McPhee, nor was he asked for an explanation It was not until ~e heard the evidence at the hearing that Mr McPhee became aware that his version of events was not accepted He thought he was disciplined because management thought his response to the raised ha..nds was excessive Mr Farkas said he noticed the discrepancy bet~een the "confession" and the written occurrence report as soon as he received it from Mr McPhee, but said nothing. At the1meeting - ct (, ,~,.,,~<;, ':""""", ~ ~..{:: ~.l ..'-'!'~'~ 9 with Mr Morris when the discipline was imposed, Mr McPhee was asked for his side of the story, but he was not asked about the alleged confession In fact the discipline was imposed_ about one month before Mr Turner completed his investigation report but when Mr Morris had available to him a summary of Mr Turner's findings When Mr Turner interviewed Mr McPhee, he too declined to question him about discrepancies between his statement and his alleged confession Neither did he ask Mr McPhee nor Mr Filice for clarification or expansion upon their statements that Mr Toth had "raised his hands in a threatening manner" and "his hands moved above his waist" It appears that Mr Turner did not believe this had happened and therefore needed no clarification The die was cast even before the investigation began because of the "confession" t Inmate Toth gave evidence at the hearing He depicted himself as an innocent bystander who was attacked for no good reason He exaggerated the extent of his injuries, adding in a broken nose, and \ was caught in several lies, so we give no weight to his evidence. Mr. McPhee testified that immediately after the fight, he went to write it up in the log book when Mr. Farkas took hold of his arm and said "Let t s get off the level and go down to my office and talk " Mr McPhee said that he was fine and wanted to make his entry in the log book Mr Farkas then ordered him to corne 'with him \ Mr McPhee thought this was very unusual because a .I I i I I _._~. ~--'-... . .--- ~ .:~ ..... ..,s..'. \- -. (:;;, (-. ~~f 10 ~ \ >- correctional officer is not normally removed from the unit after an incident of force Normally you just keep On working and write I up your occurrence report before the end of your shift, whenever you find the time Mr McPhee said he did not want coffee, but Mr Farkas insisted he go out to get some In the ensuing conversation, Mr McPhee says he never said "1 lost it" and he did not say he had hit inmate Toth for calling him a diddler . He told Mr Farkas that ) he could not let a comment like that go unchallenged or his reputation with the inmates would be lost (all witnesses agreed that this is the case) Mr McPhee said he did not talk about his father being a golden gloves boxer, because in fact he never was ( a boxer, golden gloves or otherwise Mr McPhee was very anxious I to return to the unit and face the inmates/because he thought being removed from the unit made him look bad and the inmates would think he, was in the wrong He did not feel himself to be in the wrong and wanted to correct any mistaken impression the inmates might have When he was sent to the chapel to write his occurrence report, he was again discomforted by this unusual situation He was further struck by the oddness of having the Employee Assistance person come in. He did not want to see him; he just wanted to write his report and go back to work McPhee testified that he told Mr I Mr Farkas the sequence of events the same way he wrote them in his occurrence report and that . ) Mr Farkas must have misinterpreted what he said Mr McPhee testified that he would never hit an inmate just for insulting him and that he was not aware anyone in management thought he had done EZ";' "t,t"":;'::' :~J::~;~", 11 I so until the hearing Union counsel conceded at the hearing that if force was used simply in response to an insult, Mr McPhee was lucky to get oniy a 1S-day suspension We do not believe that Mr McPhee told Mr Farkas that he grrbbed the inmate around the neck, then asked the inmate to repeat his statement Raised hands in response to being grabbed around ~.;; the neck would not be a mitigating factor in Mr Mc?hee's defence Any person wQuld instinctively raise their hands if they were grabbed around the neck and it would hardly seem worth mentioning in mitigation, but Mr McPhee did mention it to Mr Farkas as a causative factor for his actions He then mentioned it in his occurrence report half-an-hour later He would have to be pretty foolish to think he could give two conflicting stories of what occurred to the same person a short while apart and get away with it Anyone would expect to be challenged if he had done so We believed Mr McPhee when he told us at the hearing that this was the first time he had heard that management thought he had given two very conflicting versions of the incident We 'believe that the time period immediately following the incident was stressful for all concerned, as they all testified Whatever Mr McPhee told Mr Farkas moments after the incident may have been somewhat garbled or disjointed, but Mr Farkas reached the immediate conclusion that Mr McPhee was at fault and he never \ changed that opinion. He did not make notes of either conversation with Mr McPhee, nor did he challenge Mr McPhee when he handed in -- .:......:.-.:.--..........:.--. ~--'--"----..-..'--_.:.._' (f- e' :",.,l'l"".:(. ),' ~:.:~ 12 ,< ,,/- I i 'l his occurrence report He was sure he knew what the sequence of -, events had been and did not need further clarification He learfled all he needed to know in that first brief conversation with Mr McPhee on the unit immediately after the incident It was right after this conversation that he advised Mr Faajertag and Mr Morris that Mr McPhee had "lost it" and assaulted the inmate in response to insults We were surprised that Mr Farkas was surprised that Mr McPhee told him that he could not let the inmate get away with those insults and that he had to defend his reputation All witnesses at the hearing testified that a correctional officer must confront an inmate who makes insulting remarks in front of other inmates or risk losing his/her reputation Even Mr Farkas agreed that this is -the case, but Mr Farkas seemed to believe that Mr McPhee was more interested in his personal reputation than his professional reputation, although we do not know why he thought that We know that Mr Farkas had an incorrect recollection of Mr McPhee's reference to his father's golden g:t.oves, and we think he was incorrect in his recollection of Mr McPhee's description of the sequence of events during the incident We think it is unfortunate that the entire investigation that ensued was co loured by Mr McPhee's alleged confession to Mr Farkas Mr Filice's evidence was ignored, even though his story is remarkably similar to Mr McPhee's and they had no opportunity to collaborate. It was simply assumed that the "code of silence" was at work and Mr Filice was just covering for his co-worker We ( .,. ~";;\' ~bfi 13 found Mr Filice to be a credible witness, and the differences in , details supplied by both Mr. McPhee and Mr Filice are further confirmation that there was no collaboration Each witnessed events from a different perspective and, as with any two eye-witnesses, saw, heard and remembered things somewhat differently l Inmate Toth was not a credible witness in our view, nor in the {view of the police officer who was asked to lay a charge However, the Inspector seemed to have no difficulty believing him and disbelieving McPhee and Filice In imposing the discipline, Acting Superintendent Morris relied upon the Inspector's summary of events as the saw them and did not do any independent investigation himself beyond reading the major occurrence reports He did not question Mr Filice; he simply believed he had fabricated his occurrence report He did not ask Mr McPhee about the discrepancies between his alleged confession and his later statements, but found him guilty based on the confession In result, we find that Mr McPhee did not use excessive force on the day in question and was therefore unjustly disciplined We order that he be compensated for the 15 days off and that the discipline be removed from his record With respect to the second incident, the racial slur, Mr McPhee admitted that from the start, and expressed great regret \ I ~" - --~ ._.~--'.- -----'- __ _......u:.:-........ -'->-'-~_ -- -- - _-=-- .---->--.-1- - --- ~- -- - - - ---- -- ~----- ----- ,~. , ,t" 'f~i~ 14 .. ~ about it immediately After the fight, when the inmate was being \ led out, he said something to Mr McPhee about getting him back -- when he returned to the street Mr McPhee responded by calling him a '! dumb nigger II or II fucking nigger II Mr M~Phee testified that he is not a racist and felt terrible about havingrmade the remark just 20 seconds after he said it He knows it was very wrong and his only justification was the stressed state he was in and the parting , threat by inmate Toth The union concedes that discipline is I , merited for this type of racial slur, but that five days' suspension is excessive We agree The comm~nt was made in the heat of the moment and instantly regretted No one has ever heard a racial slur from Mr McPhee before and he does not exhibit racist attitude~ at work, quite the contrary Mr McPhee has eight years' service with no disciplinary record and two commendations on his personnel file One cornmendatic:m is for stopping an inmate on a destructive rampage and defusing a potentially explosive situation, and the second is for preventing an inmate suicide In all of the circumstances we think a written warning is the appropriate discipline for the racial slur The theory of progressive discipline wisely prescribes a warning for a first offence of this type of behaviour where it was committed on the spur of the moment, under provocation, and is out of character for the employee, with an otherwise unblemished record Therefore we order that the five-day suspension be removed from Mr McPhee's record, with compensation, and replaced with a \ " , (~;:\ --- 15 - - ---(~:~i - ---~- - - -'- --------- _.- .- ~ .. ~ written warning, following the format set out in Mr. Morris I s original disc;:ipline letter dated August 5, 1992 " Dated at Totonto this 21st day of October, J 1993 ~~~ A Barrett, Vice-Chairperson ~ ~~/~' J C Laniel, Member g: ~ '/2 ' ~ ~; J /Miles, Member