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HomeMy WebLinkAbout1994-1120.CHOW95_11_24 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE " SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 GSB # 1120/94 OPSEU -II 94E249 'TT IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Chow) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional services) Employer BEFORE L Mikus Vice-Chairperson FOR THE J Gilbert GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE G Basanta EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional services HEARING June 27, 1995 This award concerns the gnevance of Florence Chow and the one day suspension she receIved for allegedly makmg, to VIsitors to the Jail, negative and disrespectful comments that were, m the opinIon of the Employer, unpolite and unprofessIonal and contrary to Standing Order B-8(2) which reads, m part, as follows. To be alert, courteous, consistent, discreet and professional in their contacts With other staff, mmates, volunteers and the pubhc. Ms. Chow has been employed as a Correctional Officer 2 (Heremafter referred to as "C02") at the Thunder Bay Jail smce 1984 The jail IS a maximum security facility and the complamt agamst Ms. Chow arises from an incident concerning the signing in procedures for visitors to the jail. Ms. Heide Wedgemeld has been a teacher of disabled students in the Thunder Bay Separate School system for twenty-eIght years. She had been receiving telephone calls from a former student who had been mcarcerated and was very upset and lonely She and her daughter, Andrea, who IS a student at Lakehead UmversIty, visited this former student on April 21, 1994 and, as a result of that viSit, called Ms. Brown, the Superintendent of the jail, to complain about the treatment they received that mght. At her request, Ms. Wedgerfield wrote the followmg letter of complaint describing their expenence. May 5 1994 Maggie Brown Superintendent, Thunder Bay District Jail Box 2806 Thunder Bay Ontano P7B 5G3 Dear Maggie Brown; On the evening of Thursday, 21 April 1994 my Daughter Andrea and I went to visit M. B .at the Distnct Jail. Upon amval, I was very nervous as I had never been there before and had been alerted to the starkness of the surroundings. I was shocked when the door clicked so that we could enter. Upon entenng, we failed to see the person who was talking to us. When we did find her, she spoke to us 2 as ifwe were mvisible; she did not even look up. She pushed a piece of paper towards us and told us to "sign It. We followed the examples of the two preceding people who had simply put theIr SIgnatures, and SIgned our names. In a disgusted, belittlmg voice she told us it was wrong, and that It states clearly to print your name, address and relauonship. She then pushed the form back to us. As I was pnntmg all the informatIon, I explained that she had merely said to sign in, and that I did not know what to do as It was the first time I had been there. She told us that "it is printed there in black and whIte" She, made us feel as if we were a real bother At this tune, the guard called and asked where M. B. 's VISItOrs were. She [the person who was checkIng us m] replied that the "lIterary geniuses" were still signmg m. InterestIngly enough, she was very happy and Jovial with her co-worker I was hurt and very concerned that a person with such an attitude was dealing WIth the publIc. I then wondered that if this is how she interacts with the publIc, then how IS she able to associate WIth the mmates. I feel that all people deserve to be treated with digmty and respect. This incident, unfortunately, has prevented us from returning to visit MB Thank you for your time and attention. I would appreciate hearing from you as to the outcome of this matter Heide Wedgerfield Ms. Wedgerfield and her daughter were absolutely sure that the gnevor uttered the words ill the letter of complamt, despIte the grievor's denial. Ms. Andrea Wedgerfield stated that the grievor's actions and comments made her feel that she was no better than the inmates. Ms. Brown instructed Mr Michael Coons, the Deputy Supenntendent, to illvestigate Ms. Wedgerfield's complaint. He ascertaIned that the visitor log verified the visit by Ms. Wedgerfield and her daughter and that the grievor was on duty that night. He illterviewed the officer at Post #8, G Croft, who was working in an office adjacent to the mmates' area and who was ill commumcation With the gnevor by phone on the evemng in question. He had no recollection of the inCIdent and stated that he would have remembered It as It was out of the ordinary Mr Coons also illterviewed officer K. Ryder, at Post # 9, wlnch IS ill close proxmuty to the VISItIng area. She adVIsed lnm that she had not heard any comments from the gnevor Mr Coons did not mterview the grievor but 3 instead sent her a copy of the complaint attached to a memo requesting the following: 1) Any recollectIon of the mCldent. 2) Your manner and demeanor to the VISitors. 3) Whether you made the comment of "literary gemuses" and if so, why 4) Any other comment you wish to make. The gnevor's response to that memo was simply "I do not recall the smd incIdent. " Mr Coons adVIsed Ms. Brown by memo of the results oflus investigation and concluded with the followmg: 1) I bel1eve the incident occurred as stated by Ms. Wedgerfie1d's comp.1amt. The Visitor's Register is consistent With her descnptlon. As a first tune viSItor to the Jail, she was undoubtedly nervous and certainly has nothing to gam by making up a complaint like tlus. 2) The treatment described 10 paragraph 2 is certamly unpohte and unprofesSIOnal. 3) The comment "literary geniuses" although not recalled by any staff, was certainly stated by Ms. Chow 4) This 10cident IS certainly consistent with previous situations Ms. Chow has been involved m. 5) Treatment of the public in tlus manner is not only impolite but, unprofessIOnal. Furthermore, it projects a poor unage of correctlonal staff and the mstitutlon to the public. Action Required There 18 cause for discipline under Standing Order B-8, "Expectations of Employees" A mmunum of one (1) day suspension is in order due to past incidents. One of the preVIOUS incidents referred to in that memo concerned a preVIOUS letter of discipline for an mcident m December of 1993, m winch the grievor, called an inmate an "asshole" m front of the mmate hrrnselt: other mmates and staff That letter of diSCipline was not gneved. The other was the gnevor's Performance, Planning and ReVIew covenng the penod January 1993 to January 1994, wherein she was assessed as failing to demonstrate a positive attItude, resIstmg constructIve cnticism and creatmg an uncomfortable atmosphere m the work environment. In the sectIon requestmg the supervIsor's comments or recommendatIons, It was noted "Dunng tins review penod there have been 4 some occurrences when Ms. Chow has appeared to have acted unprofessionally These occurrences have resulted m complamts by mmates and Occurrences subrmtted by Officers." Mr Coons concluded, on the basis of his investigation and lus past expenence with the gnevor that she had made the comments alleged and that, on the theory of progressIve discipline, a one day suspensIOn was appropnate. He testified that the Ministry takes complamts of tlus nature senously because It not only projects a negatIve unage to the pubhc about the staff workmg m corrections but also affects the inmates in that they have few viSItors as it is and those viSItors will be less likely to return if they are treated m such a manner Ms. Chow testIfied on her own behalf She explamed that Post 7, where the incident took place IS at the front of the jail and that the first thIng VIsitors see when they reach the ]ailIS a large steel door When the doorbell nngs, the officer on duty unlocks it from mSIder When the lock opens, there is a loud "bang" which can be very upsetting to new VIsitors to the jail. The VISItors then enter a lobby measunng !2 feet by 14 feet. The officer on duty IS situated behind steel walls and bulletproof glass. There IS a speaker through the glass wluch, according to the grievor, does not work and so, when Ms. Wedgerfield and her daughter arrived at the jail, the grievor talked to them through the drop box where the log book IS passed to the VISItors. The drop box is actually a sliding drawer The Register IS placed mside the drawer by the CO on duty and then pushed to the slot m the waItmg room. The gnevor testIfied that she told Ms. Wedgerfield to pnnt her name and address m the book and to SIgn m as well. She did not remember the complainants at first because nothing happened dunng theIr VISIt to make It noteworthy When she was rennnded that they had come to Visit M.B., she did remember 5 them because M.B did not get many VISItors. She categorically demed making the statement alleged and further stated that the words "literary gemuses" were not m her vocabulary She explamed that she does volunteer work for the Provincial Sport governing body of Archers and IS an Ambassador to the Sport of Body Building as well as AsSIstant Director of the Body Builders of Ontario As such she does public speaking and seminars to promote an interest m body building and a drug free life style. She is also a speaker and advocate for the Canadian Centre for Drug Free Sport. More recently, she has been the sole orgamser of a body building competItion, the proceeds of wInch for the past two years have been donated to the Literacy Coalition of Thunder Bay She testIfied that she is aware of the issue of literacy and is trained m and has acted as all tutor for a literacy group m Thunder Bay It was her assertiOn that she would never have used the words "hterary geniuses" in the manner suggested by the complainants. ARGUMENT Ms. Giselle Basanta, Grievance Admimstration Officer for the Ministry, took the position that this case depends on a finding of credibility as between the grievor and Ms. Wedgerfield and her daughter and that the Board should prefer the eVIdence of the complamants over that of the grievor They gave their eVIdence with clarity and certamty They had no ulterior motive for makmg the complaint and did not know the grievor until the mght in question. Their eVIdence was consIstent with the events described m their letter and was corroborated by the Register book. Although conceding this Board has the jurisdiction to reduce the penalty imposed by the MinIstry, Ms. Basante took the position that there were no grounds to do so in tIns case. The penalty was 6 modest m the Clfcumstances and consIstent with the pnncIples of progressive discIpline. In support of its POSItiOn, the MinIstry relied on the following cases Antle and Ministry of Correctional Services (1976), GSB 66/76 (Beatty); Russell and Ministry of Correctional Services (1977), GSB 52/77 (Swan) and Bradley and Ministry of Housing (1990) GSB 1773/90 (Dissanayake) Mr Jim Gilbert, Gnevance Officer for the Dmon, argued that the burden of proof IS on the Ministry to show, on a balance of probability and by clear and cogent evidence, that the gnevor comnntted the acts alleged. Ms. Wedgerfield and her daughter were absolutely certain that the grievor called them "literary gemuses" But they also adnutted that they were very nervous about visitmg the Jail and that they were mtirmdated by the whole experience. It is possible, m the circumstances, that they were Inlstaken. The Dmon also took the positIOn that Mr Coons' mvestIgation was madequate and dId not lead to the conclusion he suggested. His mtefVlew of the gnevor's co-workers did not aSSIst mm. NeIther officer heard the comment alleged. The bIggest flaw m the process was ms failure to interview the grievor before concluding that she was guilty He did it based on one pnor expenence m wmch the grievor candidly adnutted her guilt. That was rrnproper He could not rely on her past record without first finding a culminating mcident, wmch he did not do The Dmon argued that I should believe the grievor She was forthright m her testimony and answered the questions frankly The previous mCldent relied on by the MinIstry speaks to her honesty At that time she did not deny her actIons nor did she gneve her penalty She aclrnowledged makmg the 7 derogatory comment. This tune she demes the allegation and should be believed. DECISION As can be seen from the evidence, this Board IS faced With two completely conflicting verSIOns of the events of the evening of April 21, 1994 It IS never easy to assess the credibility of witnesses. Boards of Arbitration do not have the gift of diVIDe insight mto the mmds and hearts of witnesses. They must attempt to detennme the truth on the baSIS of all the evidence and m accordance With the preponderance of probabilities. I cannot believe that Ms. Wedgerfield and her daughter concocted the story they told this Board. There was no suggestIon of animOSIty towards the grievor In fact, they had never met the grievor until that evening. Their story IS coherent and believable. At the Union's request I was given a tour of the jail. There can be no doubt that a first VIsit to the Jail would be upsettIng to most people. As described earlier, when the front door is unlocked by the CO on duty, there is a very loud and annoymg "bang" The wlUtmg room IS cramped and uncomfortable. The Jail is old and all of the rooms VISIble dunng a VISIt are unattractive to the eye and unwelcommg in all other respects. I can understand why the Wedgerfields found the expenence traumatIc. That might account for theIr reaction to the grievor's comments. It remforces my VIew that their verSIOn IS believable. The ObVIOUS result IS that I do not accept the gnevor's version. DespIte grave concerns about the thoroughness and fairness of the mvestlgatIon, I am of the VIew 8 that the Mimstry had Just cause to discIpline the gnevor I am also of the VIew that I should not interfere With the penalty unposed. The gnevor has been counselled m the past about her behaVIour and has received a letter of warnmg for similar conduct. The penalty imposed m tlus case is consIstent with the doctnne of progressive diSCIpline. As well, and more unportantly, the gnevor has perSIstently denied any wrongdoing. In light of this Board's finding to the contrary, the grievor's refusal to accept responsibility for her actIons does not allow me to ameliorate the penalty m these CIrcumstances. For all of these reasons the gnevance IS diSmIssed. Dated tills 24 day of November, 1995, at Toronto ~4