Loading...
HomeMy WebLinkAbout1996-0164.Sindall&Talbot.97-10-23 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITEBoo, TORONTOONM5G IZB TELEPHONE/TELEPHONE (418) 32tJ-1388 180, RUE DUNDAS OUEST, BUREAU BOO, TORONTO (ON) M5G 1ZB FACS/MILE/TELECOPIE (418) 328-13ge GSB # 164/96, 165/96, 244/96, 245/96, 246/96, 247/96, 248/96, 604/96, 605/96 OPSEU # 96C676, 96C675, 96C731, 96C732, 96C733, 96C734, 96C735, 96F194 , 96F195 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Sindall/Talbot) Grievor - and - the Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE O.V Gray vice-Chair FOR THE M. Bevan UNION Grievance Officer ontario Public Service Employees Union FOR THE A Gulbinski EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING October 10, 1996 November 1, 1996 January 7, 8, 22, 1997 February 17, 18, 1997 Decision On February 20, 1996, the grievors were working as correctIOnal officers at the Hamilton Wentworth Detention Centre, as they had for several years. At about 11 a.m. that day, they and others responded to an "all staff' alarm that was sounded by an officer at unit 3A Right ("3AR") when one mmate attacked another in the washroom of that unit. After they arrived at 3AR, the grievors were assigned to take the aggressor, an mmate named Bitterello, to the Segrega. tIon unit. As they were escorting BItterello out of the unit he started strugghng Members of management then present later reported that the gnevors used ex. cessive force m respondmg to the Inmate's actions. Later that day the gnevors were suspended wIth pay until their next shift. Thereafter, they were further suspended without pay pending an investi. gation. The union's strike began a few days later After the strIke ended, each gnevor was summoned to a meeting on April 11, 1996, to dISCUSS the allegation that he had used exceSSIve force on inmate Bitterello during the February 20 m- cIdent. Following those meetmgs, both grievors were discharged. Each gnevor grIeved his suspensIons and discharge. In July 1996 the grievors were tried in cnminal court and acqUItted on charges of assault arismg out of the mCIdent in questIOn. The grievances were heard together m thIS proceedmg over the course of several hearmg days. EIght people present at the time of the mCIdent m questIOn testified about it. three supervIsors, the two gnevors and three other correctIOns officers. The mstItution's nurse, Nancy BIlboe, testified about mmate BIttarello's inJunes. Stephen Fox, a tramer WIth the Mmistry, testified about the trainmg given to correctIOnal officers concermng the use of force. Deputy Supermtendent - 2 - Marvm FaJertag, who made the decIsions to dIscharge the grIevors, described the process by which he arrIved at hIS decisions. The Evidence Events Leading Up To The Incident Two unclassified correctional officers were assigned to umt 3A on Febru- ary 20, 1996 Robert Scriven and John Bleks. At about 11 a.m. that day Mr SCrIven saw Inmate BIttarello fighting wIth another inmate in the washroom of the umt. He went in and told them to separate. When they did not, he intervened to separate them. Mr Bleks sounded the "all staff' alarm, to which other staff in the institutIOn were expected to and dId respond by attending at unit 3AR. The grIevors and at least three other corrections officers - KImberly Stewart (now Kimberly Easter), Kevin GoncI and K. Foster - responded to the alarm. Three supervisors of Lieutenant rank (OMI6 classIficatIOn) also re- sponded. Sam Swam, James McIlveen and James Craig Upon theIr arrIval at umt 3AR, officers Gonci and Stewart escorted inmate BIttarello through the 3AR day room to his cell. Mter hearing from Mr SCrIven and the other inmate 10- volved 10 the altercation, Mr Swam ordered that mmate Bittarello be taken to Segregation. Mr McIlveen took the grIevors wIth mm to carry out that order The mmate reSIsted and otherwIse failed to comply fully WIth orders at several pomts 10 the process by whICh the grIevors and Mr McIlveen removed hIm from hIS cell. While the inmate was still in hIS cell, Officer Smdall hand- cuffed hIS hands behind hIS back. Durmg that process, Mr McIlveen aSSIsted Mr Smdall m pullmg one of the mmate's arms behind his back when the mmate re- sisted domg so. Mr McIlveen told the mmate he was bemg taken to SegregatIOn. Officer Smdall put his rIght arm under and around the mmate's rIght arm and officer Talbot put hIS left arm under and around the mmate's left arm, so that as they walked forward the mmate would be walkmg backwards The mmate re- sisted bemg walked backwards, and threatened the grIevors and Mr McIlveen - 3 - that he would remember theIr faces and deal with them on the street. The grievors walked the inmate through the cell door and out into the 3AR day room. They began to move toward the grIll at the eXIt from the dayroom. Mr McIlveen was following behind them. Other staff members were in various locations m the dayroom, as were other mmates. Inmate Bittarello was a large, heavily built man. Witnesses' estimates of his height and weight were m the range of 6'2" to 6'4", 240 to 280 pounds. During his cross-examination of them, and later in argument, the union's representatIve was Critical of the supervisors for not having famIliarized themselves WIth the inmate's past history of violence before determimng when and how to move him to Segregation. He suggested, among other things, that they ought to have waIted untIl after the other mmates in the unIt had been fed and locked in theIr cells before movmg hIm. The fact is, though, that even m light of BIttarello's re- cent violence toward the other inmate and rus non-complIance and resistance in rus cell, neither the grievors, who each had about six years' experience, nor the supemsors, who each had from 14 to 20 years' experience, expected that there could be any substantial difficulty conducting this mmate to Segregation by walkmg rum backwards WIth his hands cuffed berund hIS back. Shortly after the officers emerged from the cell with inmate BIttarello, the mmate kicked sIdeways toward officer Smdall, who was to hIS right, in what ap- peared to Mr Sindall and others to be an attempt to trip him. The Inmate's first attempt to trip officer Mr Sindall was unsuccessful. He continued to kIck his legs toward Mr Smdall. The WItnesses' accounts of what happened thereafter varied considerably, both in the Occurrence Reports they prepared and filed on the day of the incIdent, and In the testimony they gave In these proceedings. - 4 - The Grievors' Occurrence Reports Concerning the Incident In the Occurrence Report he prepared later that day, Mr Talbot gave this description of the events that followed. As we entered the dayroom, prisoner (BIttarello) began to kick at CO2 Sindall. At this trme the prIsoner was being wrestled to the floor so leg restraints could be applied. (BIttarello) contmued to kick and struggle as we attempted to put him on the ground, so thinking to distract him, I struck the prisoner in the rear of the head with my right hand tWIce and then twice in the body hoping to encourage compliance. It seemed to have the desired effect as the prisoner fell to the floor and lay there for a moment. He then stated "Okay! Okay! Can I get up nowr' OM16 McIlveen told him "No!" We held the prisoner on the floor until someone arrIved with shackles. Prisoner (Bittarello) was shackled and assIsted to hIS feet. Other staff then escorted the prisoner to Segregation. Mr Sindall's Occurrence Report said this. As we proceeded through the dayroom towards the grille 11m (BIttarello) suddenly stopped. Then the i/m began to kick thIS officer As a struggle ensued I started to lose my footmg. The i/m along with staff began to fall towards the floor I think that my foot hit 11m (Bittarello) while I was trying to regam my balance. I then kicked i/m (Bittarello) wIth my right foot, strikmg hrm in the shoulder area out of a reflexive action. I then stood back away from the group on the floor The grIevors' testimony at the hearing of this arbItration is summarized later In this decision. Occurrence Reports and Testimony of Correctional Officers Bleks, Stewart and Scriven Concerning the Incident In the Occurrence Report he prepared after the incIdent, Mr Bleks re- ported that on the Inmate's second attempt to trip officer S10dall he lodged his foot between officer Sindall's legs, and Mr Sindall, Mr Talbot and the inmate all fell to the floor where the 10mate cont1Oued to resist. The officers attempted to get up wIth the inmate, but he continued to resIst by flopp1Og hIS legs. Mr Bleks wrote that as officer S10dall got up, he "appeared to kIck" the 10mate tWIce, one kIck 10 the mIddle of the back and one glanc10g off the Inmate's back. Mr Bleks also reported see10g officer Talbot strike the 10mate tWIce 10 the lower back with hIS rIght fist. In hIS testimony at hear10g before me, Mr Bleks confirmed the - 5 - contents of his report. He also stated that the inmate was still kickmg when he was on the floor, and could have been kicking at the officers. In her Occurrence Report, Ms. Stewart (now Easter) reported that Mr Talbot, Mr Smdall and other staff members wrestled the inmate to the ground after the inmate tried to trip Mr Sindall. She wrote that Mr Sind all kicked the inmate once and that Mr Talbot punched him tWIce. In her testimony, she said that the punches and kIck occurred as the inmate was going to the floor, strug- gling, and that once he reached the floor he continued to resist while bemg held by Messrs. Talbot, Sindall, McIlveen, Swain, Foster and Scriven. The punches were to the shoulder-blade area, while the inmate was still resisting. She agreed that the kIckmg motIon could have been part of Mr Sindall's attempt to rIght himself. She heard someone say "that's enough" after she saw the punches and kick. Mr Scriven's Occurrence Report said that after the inmate tried to trip of- ficer Sindall, the inmate fell to the floor and began to struggle with staff. He wrote that he saw officer Sindall punch and kick Bittarello "trying to control the Inmate", and that he pulled officer Sindall off the inmate and told lum to stop During his testimony m these proceedmgs, Mr Scriven stated that Just af- ter the inmate stuck out his leg m an attempt to trIp Mr Sindall, the Inmate, Mr Talbot and Mr Smdall all fell together to the dayroom floor He was standing behind Mr Smdall at that point. He saw Mr Sindall coming up from the floor toward hIm, havmg let go of the inmate. He saId that as he came up Mr Smdall punched and kicked the mmate, who was still struggling and kickmg upwards at that pomt. He also said that his VIew was blocked and he could not see where Mr Smdall's punches landed, nor whIch hand he was punchmg with nor whether he actually hIt the inmate, either wIth hIS fists or wIth lus foot. With reference to the kIckIng motion, he agreed that It was possible that Mr Smdall was trymg to rIght hImself as he came up When he grabbed Mr Sindall's shoulder he dId not pull hIm up, Mr Smdall was already coming up He testified that he saId "no" to Smdall at that pomt, but dId not know why he saId It. Once they were both - 6 - standmg, he looked down again and saw Mr McIlveen on the inmate's "torso, upper head part" and officer Foster kneeling on the Inmate's legs. Occurrence Reports and Testimony of Lieutenants McIlveen, Swain and Craig Concerning the Incident In his Occurrence Report, Mr McIlveen reported as follows. Just steps outside the cell inmate BIttarello started to struggle and kick his legs. Both staff released theIr holds and inmate Bittarello was put on the floor and started to struggle wIth staff kicking his legs. I automatically grabbed him around the middle of his torso and tned to hold him down. Mr Sindall was to my left holding the upper area of inmate Bittarello and Mr Talbot was to my right with the right arm area of the inmate. Within a short time, the inmate was subdued. Both Mr Sindall and Mr Talbot were still striking the individual. I ordered them to stop at which time Mr Smdall stood up and proceeded to kick mmate Bittarello in the head area. Mr Talbot at this tune again was told to stop, he again lashed out and struck the inmate on the back of the head. At this time Mr Talbot stood up and he also kicked inmate BIttarello in the side area. It was ObVIOUS that the mmate was subdued, I called to staff to get a pair of leg irons so the inmate could be escorted under restraints to Segregation. Within a short time, Mr Dinardo came to 3A RIght Dayroom with the restraints and applied them to the legs of inmate BIttarello. The inmate was then assisted to hIS feet and escorted by staff to Segregation (#12 cell) where he was released of his restramts and seen by the MedIcal Department's Nurse Nancy Bilboe. Inmate Bittarello complained of some stiffness, had some reddenmg around the head and neck area and had a bump over his left eye area. Mr McIlveen testified that after the mmate started to struggle and kick lus legs, there was a "tanglement" of the officers' and inmate's feet. The officers nevertheless lowered the mmate to the floor, striking his torso wIth one or two blows of theIr fists as they dId so Legs were flailing all over the place, he saId. He thougllt he saw the mmate kIck Smdall. He noticed Smdall kICk the Inmate's legs: "a kIckmg motion on the way down." He mltIally testified that it was "ques- tIOnable" whether the blows struck on the way down were reqUired to subdue the Inmate He later acknowledged, as he had in the grIevors' crImmal trIal, that he thought the blows struck whIle the mmate was strugghng on the way to the floor were necessary to control the inmate He explamed that he had earher stated that It was questionable because every use of force is questIOnable. He testified - 7 - that he did not recall Mr Fajertag as lung him whether some of the blows the of- ficers struck were necessary Mr McIlveen testified that once the inmate was on the floor he thought he posed no further physical threat. At that point he shouted "that's enough" at the officers, with reference to their strIking the inmate. He also advanced toward the inmate, got down, took hold of his cuffs, leaned against his buttocks and held hIm down. At this point the inmate was still struggling a bit, moving his legs. Mr Sind all had stopped striking the Inmate and was standIng up Mr McIlveen heard someone shout "he's cuffed!" He turned his head and saw Mr Sind all luck the inmate in the shoulder, neck area. He testified that there were two kicks, but admitted having mentioned only one kick durIng the grIevors' crImInal trIal. In the meantime, he saId, Mr Talbot was still strIking the inmate. He did not think the kIcks or the further punches were necessary to subdue the inmate. He shouted "that's fucking enough." Mr Talbot hit the Inmate again. Then Mr Tal- bot stood up and lucked the inmate in the side of his head or shoulder Mr McIlveen said that he took hold of the inmate's cuffs and mid-section to control the Inmate, not to protect him from further blows. He observed that to do that he would have to have been in the inmate's shoulder area. He saId he had not told anyone that he had covered the Inmate to protect him, and that if Mr Fajertag thought he had, then Mr Fajertag was mIstaken. He remaIned on the inmate until leg-Irons were applied. He was not sure who remained on the inmate with him. When told Mr Talbot would testify that he also remaIned on the inmate until leg-Irons were apphed, Mr McIlveen saId that that was possi- ble. In lus Occurrence Report, Mr Swam stated that as Messrs. Talbot and Sindall were walkmg the mmate toward the grill I/m (Bittarello) then stopped and proceeded to struggle and kICk his legs. Staff proceeded to place i/m (Bittarello) on the floor TIns officer moved forward to attempt to control inmates legs from kickmg staff. While attemptmg to control Ilm (Bittarello's) legs thIS officer heard "Back off" and looked up to see Mr CraIg OM16 standmg Just behmd the Ilm wIth Mr Smdall C02 Just behind hun. Almost unmechately I heard Mr McIlveen - 8 - shout "Troy that's enough." As thIS officer looked towards Mr McIlveen OM16 I saw Mr Talbot C02 strike ilm (Bittarello) on the side of the face. This officer then shouted to Mr Talbot C02 who was rmmediately in front of this officer "Troy he is in restraints, get off him." 11m had ceased to resist as this officer mover to 3AR grille to awaIt leg irons for ilm (Bittarello) After describing the apphcation of leg-irons to and removal of the inmate, Mr Swain wrote that This officer was informed by Mr Craig OM16 that he had seen Mr Sindall C02 kick ilm (Blttarello) in the back and had stepped between Mr Sindall and ilm (Bittarello) This officer then took Mr Sindall C02 and Mr Talbot C02 into Level 2 office. This officer asked Mr Talbot C02 and Mr Sindall C02 "What happened in there, what did you guys think you were doing." Mr Sindall informed thIS officer "I know I just lost it in there, I don't know what happened to me." Mr Talbot C02 mformed this officer that "I thought it was necessary to control the inmate. In his testimony, Mr Swain acknowledged that he had not seen the offi- cers "place" the inmate on the floor As the officers emerged from the cell with Bittarello, he turned hIS head away to speak to two inmates standing near him. He looked back when he heard a noise, and saw legs tangled, the Inmate gomg toward the floor and Mr Talbot gomg with him. He did not know what the in- mate or the officers had done to get m that state. He could not say what Mr Sin- dall was domg at that point. He stated that he then moved forward and crouched down to try and control the Inmate's legs, wmch were moving around. Before Mr Swam could grab the inmate's legs, however, he was distracted by someone shouting "get off." He said he looked up and saw Mr Craig standmg there with Mr Smdall behind mm. Almost Immediately thereafter, from his left he heard someone shout "Troy, that's enough." He turned his head to the left to- wards Mr Talbot, who he says was on the inmate's back holdmg hIm m a chest hold, and saw Mr Talbot's fist strike the SIde of the inmate's head. Asked about the separatIOn of the shout and the blow in time, he saId they were instantane- ous. Thereafter, he shouted as indIcated m hIS statement. Mr Talbot did not strike agam, but contmued to hold the inmate Mr Swam testified that Mr Talbot was the only one holdmg the mmate that he could recall. He saId he never dId take hold of the mmate's legs, because .9- the Inmate had stopped lucking hIS legs by the time he turned his attentIon back to them, after haVIng looked around in response to the shouts. He got up and left the unit to order that leg-Irons be brought up Mr Swain saId that as he was leaVIng the unit Mr Talbot was still holdIng the mmate on the floor He dId not see Mr McIlveen take hold of any part of the inmate at any pomt. Mr Swain testified that he dId meet WIth the grIevors immediately after the altercation, as hIS Occurrence Report mdlcated. He said he asked them "what the hell happened, what the hell were you guys domg, " and that Mr Sindall re- plied "I don't know what happened to me, I just lost it." In cross-examination he saId those were the grIevor's exact words. He testIfied that the grievor seemed remorseful, as though he felt he had done something wrong Mr CraIg wrote his Occurrence Report after he had received and reviewed other WItnesses' reports. In It, he gave tlus account of the inCIdent. Coming through inmate Bittarello's cell door he began to struggle and kick hIS feet out sideways at Mr Smdall. Inmate Blttarello was placed on the floor at this pomt by Mr Talbot and Mr Smdall with Mr McIlveen holdmg his upper thigh area. While bemg placed on the ground Mr Talbot punched :Ilm Bittarello twice, once m the left side of the head and once in the upper left shoulder Mr Sindall also punched inmate Bittarello, but on hIS right side. Mr Sindall stood up and kicked mmate Bittarello in the back of the head. I yelled "back off' and stepped between Mr Smdall and inmate Blttarello. I heard Mr McIlveen yell at Mr , Talbot "Troy that's enough" Just as Mr Talbot punched inmate Bittarello in the face. I then heard Mr Swain OM16 shout at Mr Talbot "Get off hrm, he's in restraints. Inmate Blttarello was not struggling at thIS pomt, so I left and ordered leg irons brought to 3A. Staffing needs precluded reheving Mr Talbot and Mr Smdall rmmediately to wnte theIr reports. They were reheved at approx 1215 hrs and adVIsed to have their reports to me as soon as possible. Once the reports were submitted and after consultatlOn WIth Mr Fajertag and Ms. Jones It was decided that both Mr Talbot C02 and Mr Sindall CO2 would be suspended WIth pay pendmg mvestlgatlon In hIS testImony, Mr CraIg saId the officers dId not fall to the floor They put the mmate on the floor m a manner that "was not as orderly as It could have been, but was not dIsorderly" He dId not know how many tImes Mr Smdall punched the mmate, nor where the punches landed, nor, as he acknowledged m - 10 - cross-examination, whether any punches landed. He said he had a clearer view of Mr Talbot's two imtial punches, one to the side of the head and one to the shoul- der He saId the punches were unnecessary because the mmate was handcuffed and they only had to put him on the floor and have someone hold his legs, which he saId Mr McIlveen was "m the process of domg" at that pomt. He said that when Mr Smdall stood up he kicked the inmate m the back of the head. Mr Craig yelled "back off," as he thought the kick was unnecessary He stepped be- tween Mr Sindall and the mmate. He did not see Mr Scriven behind Mr Sin- dall. He testified that Mr McIlveen was on the inmate's thIghs at thIS time, and was still in that positIOn when he (Mr McIlveen) yelled "that's enough", at whIch point Mr CraIg turned and saw Mr Talbot punch the mmate m the head. He testified that he also saw Mr Swam holding the inmate's legs at that point. Mr Craig said that Mr Smdall did not appear to be trying to right lum- self when he kicked the inmate, but may not have kIcked "that hard," as the m- mate's head did not appear to move. He thought Mr Talbot's last punch was un- necessary, but acknowledged that he had turned from watchmg Mr Smdall to see the punch and would not have seen anything that took place Just before the punch was thrown. He said that there were no more punches after that. He stated that he watched Mr Talbot as he got up and back away and dId not see him kick the Inmate. Both Mr McIlveen and Mr Swam were still on the inmate at that pomt, he said. Events Following the Incident The mstItutIon's nurse, Nancy Bllboe, testified that she exammed inmate Blttarello at about 11 20 a.m. on February 20, 1996 She observed a 1% c.m. su- perficIal scratch on hIS rIght forearm, a small abraSIOn on his rIght temple, marks m hIS mId upper back whIch were either superfiCial scratches or pre- eXlstmg acne, and redness and pressure markIngs on his WrIsts from the hand- cuffs She saw hIm agam at 340 pm. because she had been Instructed to take photographs of hIS mJurIes. At that time the abraSIOn on hIS rIght temple was more swollen and there was a newly VIsible abraSIOn on hIS left cheek. - 11 - Based on discussIOns wIth Mr CraIg and Mr Swam on the day of the incI- dent, Deputy Superintendent Jones immediately prepared and Superintendent DIane Doherty signed and sent to the Mmistry's Regional Office an Incident Re- port that described the events in dispute as follows. While the mmate was walking through the dayroom, he began strugghng requirmg hun to be placed on the floor While the mmate was laying on the floor and in the presence of OM's McIlveen, Swam and Craig, officer Talbot punched the mmate several times in the head area while officer Sindall kicked the inmate several times in the head and shoulders area. SupervISor McIlveen yelled for them to stop J Craig, OM 16, stepped between Sindall and the mmate. Talbot proceeded to kick the mmate once more in the right shoulder area. Mr McIlveen placed himself between C.O Talbot and the mmate and S. Swain, OM 16, arranged for other non participating staff to escort the inmate to segregation without further mcident. None of the WItnesses' Occurrence Reports stated that Mr McIlveen "placed lumself between C 0 Talbot and the inmate." The orIgin of tlus notion may be inferred from the testimony of Mr Fajertag He stated that when he spoke to Messrs. Craig and Swam on the day of the mcident, they told him that Mr McIlveen had placed hIS body over the inmate's to protect the mmate from Mr Talbot. He also stated that Mr McIlveen "Inferred" (by wluch I belIeve Mr Fajertag meant "Implied") that tlus was so dunng a separate conversation he had wIth him. As I have already noted, Mr McIlveen testIfied that he dId not place lus body over the Inmate's to protect the Inmate, that m the posItion he took up hIS body would not have protected the mmate from Mr Talbot and that if Mr Fa- Jertag thought he said he had done that he was mIstaken. Durmg their testI- mony, neither Mr CraIg nor Mr Swam claImed that Mr McIlveen had placed hIS body over the mmate's to protect the mmate. Indeed, Mr Swam Said he had not seen Mr McIlveen take hold of any part of the mmate NeIther of them was recalled, however, to contradIct Mr FaJertag's testimony that that IS what they reported orally to hIm on the day of the inCIdent. - 12 - After the mcident, the InstItution requested that the Mimstry's Investiga- tions Branch assign an investigator to the case. An investigator was assIgned and did commence an investigatIon, but dId not complete it before the time when Mr FaJertag felt he had to make a decIsion about the appropriate response to the grievors' conduct. The Decisions to Discharge the Grievors Ministry tramer Stephen Fox testified that correctional officers are taught to respond to physIcal violence qUIckly wIth a force optIOn consIstent with the Identified threat. They are also taught that assessment of the threat is an ongo- mg process, and that they should establish control quickly Open and closed hand techniques are taught as self-defence techniques but not as restramt techniques. A restraint technique has to estabhsh control. A punch does not do that. Simi- larly, a lock may be used in self-defence but not to restram an inmate. Having regard to relevant prOVIsions of the Cnminal Code, the regulations under the Ministry of Correctional ServIce Act, and Mmistry polley, force must be used only when necessary, and the amount of force used must be reasonable and not exces- sive haVIng regard to the threat posed by the mmate Mr Fox testIfied that these matters had been the subject of the trammg gIven to correctional officers when the grievors received their training Mr Fajertag testified that in preparation for his meetmgs with the grIevors he spoke to Mr Fox and others concermng the propnety of punching and kiclong an inmate to establIsh control. He read the occurrence reports. He spoke agam WIth the OM16's, particularly Mr Swam, about theIr reports. At each gnevor's meetmg WIth Mr FaJertag, the gnevor declined to make any statement, on advice of counsel representmg hIm in the then pendmg cnmmal proceedmgs. Near the end of each meeting Mr FaJertag announced his conclu- SIOn that the gnevor had used exceSSIVe force, and saId he would gIve further conSIderatIOn to the penalty to be Imposed. By letters dated Apnl 18, 1996 he adVIsed each grievor that the penalty would be dIscharge. In hIS letter to Mr Talbot he saId he had determmed that - 13 - In the dayroom, mmate Bittarello offered mmor resistance. You were then observed by numerous eye witnesses punching the handcuffed/restramed inmate. Despite an order from Operational Management present, you persisted in usmg force including kickmg the inmate m the head area. In his letter to Mr Sindall he saId he had determmed that In the dayroom, mmate BIttarello offered minor resIstance. You were then observed by numerous eye witnesses punching and kickmg the handcuffed/restrained mmate. You had also admitted in your occurrence Report to kicking mmate Bittarello m the shoulder areas as a "reflexIve" action. Each of the letters asserted that many other less intrusive optIOns were available to you to move away from or professIonally restrain the inmate wIthin the use of force contmuum rather than usmg kicks and punches agamst a restramed inmate, you had prevIously signed the Ministry's Use of Force Pohcy and received training, both of which do not legItunize the excessive degree of force used by you under these circumstances. The letter to Mr Sindall added that Your statement to a Manager after the mcident that you 'lost it' only serves to confIrm your unwarranted and unprofessional conduct m this matter Mr FaJertag testified that he concluded that the threat posed by the m- mate was not of an Immediate or serious enough nature to Justify the level of force used by the grievors. He saId that one of the considerations that led him to that conclusion was that the officers were well tramed and had been using a re- verse arm hold, whIch he described as "an effective techmque that would nor- mally provide reasonable assurance that the inmate would be escorted safely" He also concluded that the mmate's kIcks were not a threat of mJury to officers because they were not directed at the officers' heads or pnvate parts and that the mmate was not m a posItion to use karate kicks or other SImilar actions He saId the officers could have used other techniques in whIch they had been tramed, such as a wnst lock. He saId Mr Fox had told hIm a wrist lock could stop an mmate from klckmg He thought the gnevors' reactions were extreme, "way beyond what was appropnate and reasonable," and felt the penalty had to reflect that. - 14. In cross-examinatIOn, Mr Fajertag said that Mr McIlveen had not told him that some of the grIevors' punches were necessary, as Mr McIlveen had later testified dur10g the grIevors' crIm10al trial. Indeed, he said that when Mr McIlveen had told him the force used was not necessary after the 10mate was on the floor, he had specifically asked him "what about before that" and had not been given a definite answer He concluded that none of the blows was necessary He disbeheved Mr Sindall's report that his luck had been "reflexive." He ac- cepted Mr McIlveen's assertion that Mr Talbot also kicked the inmate, even though no other witness reported seeing hIm do that. He believed that all of the inmate's VIsible injuries were caused by the officers, despite the fact that the in- mate's own WrItten report that day attributed injUrIes to the fight with the other 10mate and made no reference to any 10Jury by an officer Mr Fajertag aclmowleged that he was aware of the 1992 case of Denms McPhee, another correctional officer in the institution. He confirmed that man- agement had imposed only a 15 day suspenSIon on Mr McPhee after conclud1Og that he had responded to an Inmate's name-calling by strilung the inmate sev- eral times wIth his fist, beat10g hIm up 10 a day room full of 10mate Mr FaJertag said that the significant dIfferences between that case and the grIevors' were that in McPhee's case the inmate had a long lnstory of be havIOura I problems, the 10mate was not handcuffed at the time of the assault and no managers were pre- sent. Testimony of the Grievors Concerning the Incident Mr Talbot testified that after they had taken 3 or 4 steps from the door of the inmate's cell, he suddenly felt all the prisoner's weIght on hIS left arm, drag- g10g hIm down. He looked to see what the problem was He saw that the inmate had leaned back, twisted to face more toward officer S10dall and was bracing hIS body weIght aga10st Mr Talbot as he kicked hIS feet at Mr Sindall. ThIS was de- spIte the fact that m addItIOn to havmg hIS left arm around the inmate's left arm, Mr Talbot's left hand was holdmg the mmate's left hand 10 a WrIst lock. He - 15. thought the mmate's kICks were makmg contact wIth Mr Sindall. Mr Talbot did not feel there was danger to himself, but thought Mr Sindall was at risk. When he realized what was happenmg, Mr Talbot struck the inmate tWIce in the back of the head. He said he did tlus in an attempt to divert the in- mate's attention to hImself and away from Mr Sindall. He said he would not have done so If the inmate's legs had merely been flalhng m the air He then at- tempted to untangle hIS left arm from the inmate and tWIst hIm around. He managed to do that WIth some difficulty, and took hold of the Inmate's right arm to force him to the ground. At that pomt, Mr McIlveen grabbed the inmate around the waist and pulled down or lunged at him. Mr Talbot testified that the inmate continued to struggle thereafter, and that for that reason he struck him twice more in the upper back "as we were falling to the floor" Once the Inmate was on the floor, face down or chest down, Mr Talbot put weight on the inmate's shoulder and lower back and held lus right hand m a wrist lock. Mr McIlveen contmued to hold the mmate, and someone held his feet as well. They both re- mamed on the inmate for a matter of minutes until leg-irons arrived and were apphed. Then he and Mr McIlveen stood the Inmate up, and others took him away Mr Talbot testified that he heard Mr McIlveen say sometlung like "that's enough" once, right around the time the inmate lut the floor, and that Mr CraIg made a comment about stopping at about the same time. He said he dId not strike the inmate thereafter, nor did he get up and kick the Inmate. He was able to see Mr Smdall "peripherally" throughout, and did not see Mr CraIg step m between Smdall and the mmate. Afterwards, Mr Swam took hIm and Mr Smdall mto an office and asked "what the hell were you two domg m there." Mr Talbot testIfied that the ques- tion was directed first to Mr Smdall, who saId somethmg to the effect that he had lost control of the prisoner or the SItuation. He did not taKe that to mean that Mr Sindall had lost control of himself. He thought It referred to the m- - 16 - mate's havmg got away from them. Mr Talbot then repbed "I Just did what 1 had to do, what I thought I had to do." Mr Sindall testified that when the mmate first tried to trIp him he re- leased the wrist lock he had on the inmate's right hand, and moved his rIght hand to the inmate's upper arm so he could hold the inmate at a greater dIstance from him. A pace or two later, the inmate began kIcking more forcefully, hitting him in the right side three or four tImes. He was shocked. He had never had an inmate attack while being escorted. He looked down to see how the mmate was domg it. He saw that the inmate had turned at a 45 degree angle and had now bent at the waist and was commg toward hIm as If to tackle hIm. He could not see what Mr Talbot was domg He was too busy dealing with the inmate's at- tacking lum. He tried to move back, but the inmate had slid down on his leg The mmate's weIght was restmg on lus rIght leg He shook or kIcked lus leg to get the inmate off it. The kick landed below the inmate's shoulder, in lus mid-section. That got the inmate off his leg He got his leg free, but in the process lost lus bal- ance. In a reflex actIOn he kicked forward to regain lus balance, and his foot struck the Inmate below the shoulder, m the chest or arm. The inmate was then on the floor Mr Sindall took two steps back, away from the inmate. UntIl the Inmate was on the floor, Mr Smdall was not particularly aware of what Mr Talbot was domg; he was focused on the inmate's kIcking and lung- mg at him. He heard someone say "that's enough" wlule the mmate was on the way to the floor Once the mmate was on the floor, he ceased kickmg. Mr Talbot and Mr McIlveen were holding the mmate at thIS tIme. Mr Smdall saId that Mr Talbot did not get up until the leg Irons arrIved and were appbed Mr Smdall testIfied that after the mmate had been taken away by other officers, Mr Swam took lum and Mr Talbot mto an office. He remembered Mr Swain saying "What the hell IS gomg on? What just happened m there?" He re- called replymg "I Just lost It in there, Sam. I don't know how he got away from me" He stated that he added "The inmate Just assaulted me." Mr Smdall testI- fied that he did not mean that he lost control of hImself, and dId not consIder - 17 - that he was confessmg to use of excessive force. Mr Swam then turned to Mr Talbot and said "Well, Troy, what do you have to say for yourself?" Mr Talbot replied "I did my job, Sam. I did what was necessary to control the sItuation." Decision The Burden of Proof The grIevors' acquittal in crimmal court is not determinative of the result here. The judge there found that the prosecutIon had not discharged the burden of proof applicable m Criminal matters. proof beyond a reasonable doubt. The employer's burden here is the lesser burden applicable in civil proceedings. proof on a balance of probabIhties. The seriousness of the allegatIons made m a CIvil proceedmg and the gravity of the consequences which would flow from sustaIning them affect the cogency, clarity and strength of the evidence needed to discharge the burden and tip the balance, however- Re Bernstem and College of Phys~c~ans and Surgeons of Ontano (1977) 15 O.R. (2d) 447, 76 D.L.R. (3d) 38 (Ont. DIV Ct.), at 470 Arbitrators are m general agreement that the application of these princIples to grievances arising out of dIsciphne or discharge for mIsconduct of a criminal or quasi-crimmal nature reqUires that the employer prove the miscon- duct by clear and cogent evidence. see Re Toronto Hydro-Electnc System (1978), 19 L.A.C (2d) 252 (Kennedy), Re Canadwn Unwn of Publzc Employees, Local 1 and Toronto Hydro Electnc System et al (1978) 19 O.R. (2d) 245 (Ont. Div Ct.), Re lndusmm Ltd. (1978), 20 L.A.C (2d) 87 (PIcher), Kulmatycky, 418/84 (Verity), Re A.B.F Fre~ght Systems (B C) Ltd. (1987), 28 L.A.C (3d) 246 (McPhilhps), Dubow~k, 0234/86 (Verity), Re Unwers~ty of Western Ontano (1988), 35 L.A.C (3d) 39 (Dissanayake), Hunt, 1688/87 (Sprmgate), and, Re Mumctpalay Metro- pohtan Toronto and Canad~an Umon of Pubhc Employees, Local 79 (1992), 28 L.A.C (4th) 160 (Gray) at 168 18 - The Quality of the Evidence Against the Grievors It is quite impossible to fully reconcile all of the testimony of the em- ployer's witnesses about events m Issue. Each witness's testimony was contra- dIcted m one or more material respects by the testimony of another or others. For example, Mr Scriven and Ms. Stewart saId they saw Mr Foster holdmg the m mate at the end of the mcident. No-one else saw Mr Foster doing that. Ms. Stewart also saw Mr Scriven holding the inmate at the end. No-one else saw that either, includmg Mr SCriven. Mr Craig saw Mr Swain holding the Inmate's legs. Mr Swam said that although he crouched down to do so, he never did take hold of the inmate's legs Mr McIlveen said he saw Mr Talbot kick the Inmate after he got up Mr CraIg saId he was watchmg Mr Talbot when he got up and moved away from the mmate, and saw no luck. Some of the witnesses contradIcted their own Occurrence Reports. Mr McIlveen, for example, testified that the inmate was subdued by the time he grabbed hIS cuffs. He acknowledged that hIS report suggested that the inmate was not subdued untIl after he grabbed him. He stated that hIS report was wrong in that respect. He also said hIS report was wrong when he wrote that he grabbed the Inmate "around the mIddle of his torso." Some of the witnesses overstated theIr evidence m theIr Occurrence Re- ports, statmg or implying that they saw thmgs that they dId not actually see. Some also dId that in theIr testimony in chIef. Mr Swam's report saId that the grievors put the mmate to the floor He testified that he dId not see that. Mr Scriven and Mr Craig both reported that Mr Smdall punched the mmate, and repeated that statement m theIr exammatIOns-m-chief. As they both finally ad- mitted in cross-exammatIOn, however, neIther of them saw Mr Smdall's fist make contact wIth the mmate They were not the only WItnesses who took msuf ficlent care to dlstmgUIsh between what they actually saw happen and what they mferred had happened based on what they saw The foregomg deSCriptIOn of problems m the testunony of the employer's witnesses IS meant to be Illustrative, not exhaustive It IS not meant to demon- - 19. strate, however, that any of the wItnesses gave testimony he or she knew to be false but, rather, that there are serIOUS questions about the witnesses' abihties to fully and accurately observe, remember, recall and describe the events in issue. This is not surprIsmg Those events happened quickly, and were totally unex- pected, mdeed, they were contrary to the witnesses' expectatIOns. The wItnesses were not Just observers, moreover, they were eIther participants or potential par- ticipants. Those who were not already partIcipants would not Just have been watclung as though they were part of a television audience. They would (or should) have been assessing whether and how they should become involved. The way they each handled that question at the time would be one of the things that might have influenced their subsequent recollections. There are also the inconsIstencIes between what Lieutenants Craig and Swam told Mr FaJertag at the time and what they later testified. It is clear that Mr McIlveen dId not place lus body over the mmate's, nor between the Inmate's and Mr Talbot, to protect the inmate from Mr Talbot. That was not lus purpose. More importantly, his actions were not consIstent WIth such an intention, for the reasons he gave m his testimony No one testified that they thought that Mr McIlveen had been usmg lus body to protect the inmate from Mr Talbot. Yet Mr Fajertag testIfied that, on the day of the mcident, Messrs. CraIg and Swain told him that Mr McIlveen had placed his body over the mmate's to protect hIm from Mr Talbot. IfMr Fajertag's testimony on this point caught the employer by sur- prise, Messrs. CraIg and Swam could have been recalled to say (If It was true) that they had not said that and that Mr Fajertag was mIstaken. Mr Fajertag's testimony on thIS pomt was left uncontradIcted, however, and must be accepted as true. Clearly, then, the report Messrs CraIg and Swam gave their superiors at the time was dIstorted to the prejUdICe of grIevor Talbot. WhIle they did not perSIst m that partIcular dIstortIOn, one IS left to wonder whether theIr accounts of the events m dispute mcluded other prejUdICIal dIstortIOns from whIch they have not resIled. - 20 - Also noteworthy was Mr McIlveen's eqUivocation about whether the grievors use of force before the inmate reached the ground was Improper Whether or not Mr FaJertag specifically asked him about that before the grIevors were discharged, the fact IS that he waited until the grievors' crimmal trial to volunteer that he thought that the force they used durmg that period was justified. Without that quahficatIOn, his initial account was dIstorted to the prejudice of the grievors. His attempt durmg exammation-in-cb.1ef to resIle from what he had said in that regard at the crIminal trial cast further doubt on the rehabIlity of his testimony What Did Mr Sindall Do? The employer's decision to dIscharge Mr Smdall was based on a behef that he both punched and deliberately kIcked a hand-cuffed Inmate, and after- wards admItted to having lost control. Mr Sindall denied having punched the inmate. Only 3 of the 6 witnesses claimed to have seen Mr Sindall punch the inmate. Mr Scnven, Mr McIlveen and Mr Craig Messrs. SCflven and Craig both admitted in cross-exammatIon that they could not and dId not see Mr Smdallland any punches on the inmate. Mr McIlveen's evidence was that Mr Sindall punched the mmate before he reached the ground. HIS equIvocatIOn about the proprIety of what the grIevors dId in that time perIOd casts doubt on both his confidence in hIS observatIOns m or recollection of that period and reliabihty of his testimony about them. The evidence that Mr Sindall punched the mmate IS not sufficIently clear and cogent to support that allegatIOn. Mr Sindall admItted to two kIcks, but testified that the first was to fend off the mmate's body as It fell on hIS leg, and the second was the aCCIdental result of hIS losmg hIS balance as he stood up ThIS IS self-servmg, of course Several WItnesses saw one or both kIcks. They had to be explamed If the kIcks were not m self-defence or aCCIdental, then they could not otherwIse be Justified and would constitute an Impoper use of force ConsIdered m IsolatIOn from the other eVI - 21 - dence, Mr Smdall's explanation of the kicks IS not implausible. The issue is whether its truth is at least as probable as the inference that would have been drawn 10 the absence of an explanatIOn - namely, that the kicks were deliber- ate. The eVIdence about what Mr Smdall said when Mr Swam asked what had happened does not aSSIst me in determming whether Mr Sindall was con- scious of having used excessive force. In retrospect, even the words Mr Swam says the grievor used are ambiguous. The grievor could have been referring to havmg lost control of the grievor HIS apparent remorse could have been for havmg lost control of the 10m ate No one else described the inmate as haVIng lunged toward Mr Sindall's leg Bargaming umt WItnesses saId it was possible that Mr Sindall kicked as a result of losing lus balance, but gave no information that would aSSIst in assess- ing the probabd~ty that that was so The arms of someone kicking to regam bal- ance would likely swmg in the same dIrectIOn as the kICkmg leg, wlule the arms of someone klckmg deliberately from a balanced positIOn would swing, if at all, 10 the opposite dIrectIOn. There was no eVIdence about whether and how Mr Sin- dall's arms moved when he was seen to kICk the mmate. These consIderatIOns are not fatal by themselves. In the context they create, however, two things par- ticularly undermine the crediblhty of the grievor's explanation. the inconSIsten- CIes between It and the explanation he gave 10 hIS Occurrence Report, and his faIlure to adequately explain the inconsIstencIes. In his Occurrence Report, Mr S10dall saId hIS first kIck was due to Imbal- ance, whIle the second was due to some unidentified reflex. It IS Improbable that both kicks would be due to Imbalance, as Mr Sindall undoubtedly recogmzed His second story, offered for the first time when he testified, ascribed the second kick to Imbalance, wlule the first was saId to have been to fend off the 1Omate's body as lunged onto hIS leg No-one else mentIOned see10g thIS lunge and, more ~ngmficantly, he dId not mentIOn It 10 the Occurrence Report he wrote wlth10 an hour or two of the event. - 22 - The relevant passage from hIS Occurrence Report was specIfically drawn to the grievor's attention in cross-examination. He responded by sImply reiter- ating his second story It was also put to hIm that the story of the inmate's hav- mg lunged at his leg was "new" HIS only response was that that had been what he felt. I have gIven anxious consideration to the question whether an adverse Inference can fairly be drawn from the grievor's failure to explain the dIfferences m hIS stories when he was not expressly challenged to do so. I have concluded that in the circumstances of tlus case it was sufficient to have drawn the differ- ences to the gnevor's attention in the course of questions suggestmg that at least one of the kIcks was deliberate, as was done here. The differences Cried out for an explanation. The failure to gIve one leaves me without a satisfactory explanation for two kIcks. Mr Smdall kicked the inmate tWIce. His explanatIOn for those kIcks IS undermmed by the unexplained inconsistencies between it and the one he gave at the time. It seems more likely that at least the second kIck was a result of the sort of retaliatory impulse that the grlevor ought to have controlled. There was no necessity for that second kIck. It amounted to an improper use of force. What Did Mr Talbot Do? The employer's decision to dIscharge Mr Talbot was based on a belief that he both punched and deliberately kIcked a hand-cuffed mmate, and that the kick and at least one punch were thrown after supervIsors had told hIm to stop Mr Talbot admItted to two groups of two punches. two when he notIced that the mmate was klckmg officer Smdall and two more later, when the mmate was down but, according to the grIevor and some of the WItnesses, still strug- gling He demed kIckIng the mmate Some WItnesses, mcludmg Mr Talbot, saId that he remamed on the m- mate untIl the leg-irons arnved. Others saId that he got up or was up before the leg-Irons arnved. Only one WItness, Mr McIlveen, saId he saw Mr Talbot get up and kick the mmate. He was not very firm about thIS he agreed It was possible -~-- - 23 - that Mr Talbot remamed on the inmate whIle he did Mr Craig saId he watched the gnevor as he got up, and saw no kIck. The eVIdence that Mr Talbot kicked the inmate IS not sufficIently clear and cogent to support that allegation. Mr McIlveen testified that Mr Talbot punched the mmate more that twice on the way down, but said he thought the punches thrown before the m- mate reached the floor were Justified. I am not persuaded that Mr Talbot punched the mmate more often than he admits. I am satisfied that the first two of those 4 punches were motivated by a concern to defend Officer Smdall, who was bemg kIcked by the mmate at the time, and that they were justified m the circumstances. Mr McIlveen claIms to have saId llthat's enough" tWIce (with an added ex- pletive the second time) before Mr Talbot stopped punching None of the em- ployer's other witnesses claims to have heard him say that more than once. I ac- cept Mr Talbot's testimony that he heard It only once. Moreover, I am persuaded that the earliest of the managers' shouts occurred at roughly the same tIme as Mr Talbot's second punch. The timing was such that Mr Talbot could not rea- sonably be expected to have heard the shout, comprehended that it was directed to lum and understood that it required that he not complete his punch, all before lus punch actually landed. Accordmgly, there was no element of msubordmation m what Mr Talbot did. In the case of those last two punches, however, there remams the question whether the use of that kind of force was necessary in the circumstances. Al- though the inmate's legs were still movmg, he was not still makmg contact WIth Mr Smdall. Mr Talbot would have known that. He testified that he had Mr Smdall m hIS penpheral vision. He dId not claIm that he threw the second set of two punches to defend Mr Smdall, he saId they were to subdue the Inmate and achIeve control. I accept the employer's eVIdence that punchmg IS not an effective means of achlevmg control. It follows that the punches could not be justified as neces- - 24- sary to achIeve control. somethmg that IS not effective for a purpose cannot be necessary for that purpose. I also accept that correctional officers are not tramed to punch inmates m order to gain control. Mr Talbot dId not claim that anything in his own training by the Mimstry supported the use of punches as a means of acluevmg control. This is not a matter of second-guessing an officer's Judgment, exercised m the heat of the moment, about how many punches were necessary In circum- stances in wluch some punches could be justified There were two distmct stages to the incident. the penod when the mmate was kicking Mr Sindall, and the subsequent period when the inmate's legs were moving but not connecting with or aImed at Mr Sindall or anyone else. The dIstmctIOn m those stages is re- flected in Mr Talbot's conduct. By his own account he punched twice for a defen- SIve purpose, then paused, then punched to aclueve control. In the first stage, while Mr Sindall was bemg attacked, some punchmg could be justified in hIS de- fence. In the second stage, when the only objective was to achieve control, no punching could be Justified. More appropriate means of achIeving control and compliance were avaIlable. Indeed, accordmg to Mr Talbot's evidence he threw the second set of punches after Mr McIlveen had already grabbed the Inmate and was assIstmg In brmgmg hIm to the ground. The second two punches consti- tuted an improper use of force Was Discharge An Excessive Response? The next Issue IS not whether dIscharge was the appropnate response to what Mr FaJertag beheved the gnevors dId. The Issue IS whether dIscharge was the approprIate response to what the employer has been able to prove the grievors dId. WhIle I have concluded that each of the grIevors used some unnecessary force, theIr conduct was certamly not as egregIOus as Mr FaJertag thought. They dId not defy orders to stop Mr Smdall dId not punch the mmate Mr Talbot dId not luck the mmate In addItIOn to havmg the facts wrong, m determImng pen- - 25 - alty Mr Fajertag took into account historical matters that the collective agree- ment prohibIted hIm from considering. Accordingly, Mr FaJertag's thinking on the matter is of limited assIstance to me in aSseSSIng the appropriate penalty Any mcident In which an employee uses unjustified force on someone IS a matter of grave concern. Such conduct IS illegal. It exposes the employer to po- I tentialliability And it hardly advances the correctional purpose of a correctIOnal institution to have correctional officers engaging In Illegal conduct toward m- mates who are Incarcerated because they are alleged or have been found to have engaged in Illegal conduct. It cannot be said, however, that discharge is always the appropriate re- sponse to any incident of misconduct involving an employee's unjustified use of force on someone in the employer's custody Mr Fajertag dId not approach the matter that way DIscharge has not been the employer's invanable response to every misconduct wluch could be characterized as Involvmg the unnecessary use of force. For example, the grievor In Hunt, 1683/87 (Springate) was a reSIdentIal counsellor at a facihty for developmentally handicapped adults. One of the inci. dents addressed in that matter involved the grievor's response when a reSIdent pulled his haIr The gnevor rapped the reSIdent on the head WIth hIS knuckles three times, and then hIt the reSIdent on the head three more times when the resident pulled hIS haIr again. These blows caused no substantial Injury, but clearly constituted an Improper use of force. The employer imposed a wntten repnmand for this conduct. The Board found that improper, because the em- ployer had already orally reprImanded the gnevor for the same conduct. The sigmficance of the Hunt case for purposes of this one, however, IS as an illustra- tion of an mCldent of unjustified use of force that the employer dId not consIder warranted eIther dlschargmg the employee responsible or removmg hIm from contact WIth residents. - 26 - Another example is the 1992 McPhee case about whIch Mr FaJertag was questioned This is the only example I was offered of dIscipline for unjustified use of force in a correctional institutIOn. As I have noted, Mr FaJertag knew man- agement had concluded that Mr McPhee had responded to an inmate's name- calling by strik10g the inmate several times with his fist, beat10g lum up 10 a day room full of inmates. The employer Imposed a 15 day suspension on Mr McPhee for that assault. Mr McPhee grieved, and the grievance proceeded to arbItration. The Board's decision confirms Mr FaJertag's decription of what management thought Mr McPhee had done. McPhee, 2050/92 (Barrett) The deCISIon makers accepted that McPhee had "lost it" when the Inmate called lum a "diddler," struck the inmate WIth his fist, caus10g the inmate to fall to the floor, and then struck the Inmate two or three more times while he lay on the floor The Board concluded that management was wrong It found that Mr McPhee had justifia- bly struck the Inmate in self-defence, and had not used excessive force 10 so do- ing The SIgnificance of the case is not in what the Board concluded, however, but in the deciSIOn management imtially made about the appropriate response to what it thought McPhee had done. Hav10g found that the grIevors here dId not act in defiance of any supel'Vl- sor's order, I do not accept that the absence of supervisors 10 McPhee's case was a relevant dIst1OctIOn between what management thought he had done and what I have found that the grievors dId 10 tills case. I am not sure how it could have been relevant to an assessment of McPhee's discIphne that lus vIctim had a hIS- tory of behavIOural problems but, 10 any event, the inmate here also had a hIS- tory of behavIOural problems. WhIle the fact that the 10mate here was hand- cuffed weighs aga10st the grIevors, that feature IS counterbalanced by the fact that the 10mate here had lucked officer S10dall before eIther grIevor responded WIth force, whereas McPhee had struck first. Moreover, the number of blows struck by McPhee was greater than the number of Improper blows struck by eI- ther grIevor here. - 27 - When the employer termmated theIr employment, each of the grievors here had several years' service NeIther had any disciplIne on his record for the period during which the collective agreement permIts such records to be main- tained. Past appraisals of their work performance were favourable. From the outset, Mr Talbot admItted that he deliberately threw the two punches that I have found improper He thought that punchmg a strugglIng m- mate to get compliance was JustIfied. I have agreed with the employer that it was not. HIS error m Judgment was a serIOUS matter, because It involved the im- proper use of force. There IS no reason to suppose, however, that a substantIal suspension reflective of the seriousness of the matter would not have corrected Mr Talbot's thinking, so that another such episode would be most unlikely If the conduct of which the employer thought Mr McNabb was guilty warranted a 15 day suspenSIOn, I am quite unable to see how the conduct of whIch I have found Mr Talbot guilty warranted any greater penalty Mr Smdall's case IS a bit different. He did not claim to have thought his last kick was justified. He dId not admit that It was deliberate. I have found that It was deliberate and, thus, involved an Improper use of force. HIS mIsconduct seems to reflect a loss of control rather than an error in Judgment. It IS, thus, more difficult to know whether dISCIplIne would correct the flaw that led to the mIsconduct. In that respect, however, hIS SItuatIon IS analogous to the employer's VIew ofMr McPhee's conduct at the time It Imposed a 15 day suspension on him. A central feature of Mr McPhee's case was that the supervIsor who mter- VIewed hIm ImmedIately after the mcident thought he had confessed that the beating he gave the mmate resulted from hIS haVIng lost control. The decision- maker and those who adVIsed hIm accepted that the grIevor had confessed, and dIsbelIeved the assertion m hIS subsequent WrItten report that he had struck the mmate in self-defence after the mmate had first made an aggreSSIve motIOn. If the employer thought a 15 day suspensIOn was the appropriate response to what It understood that Mr McNabb had done, mcluding his havmg lost control, con- fessed to It and then offered a contradIctory excuse that it Judged untrue, then I ------~ - 28 - am unable to see how the mIsconduct of which I have found Mr Sindall guilty warranted any greater penalty For these reasons, I have concluded that the mIsconduct the employer has been able to establIsh was not sufficient cause for discharge in the case of either grievor In each case, a 15 day suspension would have been the appropriate re- sponse to the grievor's mIsconduct. What would ordinarily follow from that con- clusIOn is that the employer should reinstate each gnevor to hIS former employ- ment, substitute a 15 day suspension for the suspensIon and discharge in Issue, and compensate him for an loss of earmngs he has not mItigated dunng the pe- riod between the end of a 15 day suspension period and the date he is returned to work. Unfortunately for the grievors, the remedy I can provide for the em- ployer's excessive response IS constramed by subsectIon 7(4) of the Crown Em- ployees Collectwe Bargammg Act, 1993, S. 0 1993, c. 38, as amended by S 0 1995, c. 1 ("CECBA") Subsection 7(4) of CECBA SubsectIOns (4), (5) and (6) of sectIOn 7 of CECBA prOVIde as follows. 7 (4) In substituting a penalty under subsectIOn 48(17) of the Labour Relatwns Act, 1995, the GrIevance Settlement Board shall not prOVIde for the employment of an employee ill a pOSItion that involves direct responsibility for or that provides an opportumty for contact with reSIdents in a facility If the Board has found that the employee, (a) has applied force to a resldent ill a facility, except the mimmum force necessary for self-defence or the defence of another person or necessary to restrain the resident, or (b) has sexually molested a reSIdent ill a facility (5) In subsectIOn (4), "facihty" means, (e) a correctIOnal illstltutIOn under the Mtntstry of Correctwnal Servwes Act, - 29 - "resIdent" means a person who is an inmate, patient, pupil or resident in or is detamed or cared for in a facility (6) In substituting a penalty under subsection 48(17) of the Labour Relations Act, 1995 m circumstances m whIch it is restricted by subsection (4), the Grievance Settlement Board may provIde for the employment of the employee in another substantially equivalent position. These proVIsions replaced SImilar prOVIsions first mtroduced into the predecessor Crown employee collective bargaining legislation in 1978 When the Crown Em- ployees Collectwe Bargammg Act, 1993 was enacted, various provisIOns of the Labour Relat~ons Act became apphcable to proceedmgs before thIS Board. Pnor to that, subsections (3) and (4) of section 19 of the Crown Employees Collect we Bargammg Act, R.S 0 c.C50 ("old CECBA") had provided that 19 (3) Where the Grievance Settlement Board determmes that a disCiplinary penalty or dIsmissal of an employee is excessive, it may substitute such other penalty for the discipline or dismissal as it consIders just and reasonable m all the circumstances. (4) Where, m exercIsmg its authonty under subsection (3), the Grievance Settlement Board fmds that an employee who works in a facility, (a) has applied force to a resident in the facility, except the mmrmum force necessary for self-defence or the defence of another person or necessary to restrain the resIdent; or (b) has sexually molested a resident m the facility, the Grievance Settlement Board shall not provIde for the employment of the employee in a position that involves drrect responsibility for or that provides an opportumty for contact with residents m a facility, but the Board may provide for the employment of the employee in another substantially eqUivalent pOSItion. Subsection (5) of that sectIOn defined "facIlity" to mclude a correctional institu- tion, and "resIdent" to include an mmate, as the current proVIsion does. SubsectIOn 48(17) of the Labour Relatwns Act, 1995, codIfies what mIght otherwIse be mferred from a just cause lImItation such as appears m ArtIcle 2 of the parties' collective agreement. that an arbItrator who has found that there was cause for some discIplme may substitute a lesser penalty If the one Imposed by the employer seems exceSSIve (see Brown and Beatty, Canad~an Labour Arb~- trahon (3d ed., Canada Law Book) at ~7 4000) Thus, whIle the language of sub- - 30 section 48(17) is somewhat dIfferent from that of subsectIon 19(3) of old CECBA, the dIfferences do not appear to alter the reach of subsection 7(4) of CECBA. Subsection 7(4) of CECBA Imposes a sIgnificant restraint on an arbItra- tor's remedial JurisdIction. If an arbItrator finds that a discharged correctional officer applIed force to an Inmate and, further, that the force applIed was not necessary to defend someone or to restrain the inmate, or went beyond the minimum required for either of those purposes, then the arbitrator cannot re- quire that the employer restore the grIevor to the usual duties of a correctIOnal officer This IS so even if the arbitrator finds that the force actually used by the gnevor was considerably less extreme than the employer thought when It de- cided that discharge was appropriate On the clear language of subsection 7(4), ItS applIcatIOn does not depend on the employer's prOVing the allegatIOns on whIch it acted In dIscharging the grlevor' the lImItation arises If the employer persuades the arbItrator that any amount of unnecessary force was used. The limItation's potential for unfaIrness IS apparent when one consIders the facts of the Hunt and McPhee cases. As those cases illustrate, the employer IS not prohibited from continuing to employ someone at duties that involve reSIdent contact merely because he or she has used some degree of unnecessary force on a reSIdent. It may choose to reprimand or suspend an employee for Improper use of force. What If It choses to reprimand an employee for rapping a reSIdent on the head wIth his knuckles and continues to employ hIm In a posItion involVing resi- dent contact, and then discharges another employee who dId the same thing at the same time In circumstances that make the two cases indIstingUishable? Al- though the arbItrator IS left wIth some jUriSdICtIOn to redress the unfaIrness In the second case, subsectIOn 7(4) prevents the arbItrator from reqUIrmg the em- ployer to do what It could chose to do restore the second employee to the dutIes It IS content to have the first contmue to perform. ThIS IS so both If the employer acted In the mIstaken belIef that the second employee's actIOns were far more egregIOUS that those of the first and if It simply chose In an arbItrary or dIscrimi- natory way to treat two apparently SImIlar SItuations dIfferently .31. The union argued that subsection 7(4) cannot mean what It appears to say, because if it dId the Board could not have set aSIde the suspensIOn in the McPhee case, as it did. In that case, however, the Board did not require that the employer employ the grievor in a pOSItion that mvolved mmate contact or reo sponsibllity The employer had already decided to do that. The grIevor's contin- ued employment in that capaCIty was not in Issue. The Board merely reversed a penalty Moreover, the Board did that because It found that the grIevor's use of force was Justified. It dId not make a findmg of the sort that would trigger the limItation. Fmally, and perhaps most Importantly, it does not appear from the deCIsion that either party raised any question of the meanmg and effect of sub. section 7(4), and the Board did not address It. Although I have determined that the grlevor's conduct was no worse that the conduct for which the employer Imposed a 15 day suspensIOn in Mr McPhee's case, I cannot require that the employer restore them to duties of the sort that the employer was content to have Mr McPhee continue to perform. Subsection 7(6) of CECBA In enactmg what IS now subsectIOn 7(4), the legIslature was eVIdently con- cerned that the Board mIght create a danger for residents in the Crown's care by mlsJudgmg or failmg to gIve suffiCIent weight to the possibilIty that someone who had used excessive force on or sexually molested a reSIdent might do so agam de- spite mtervenmg correctIve diSCIpline. It also appears to have recognized the po- tential for unfaIrness If It left the employer's reaction to that kmd of mIsconduct entIrely unrevIewable, however In the result, It only made the employer's deci- SIOn WIth respect to future reSIdent contact unreVIewable In what is now subsec- tion 7(6) of CECBA, It prOVIded that If the Board found that dIscharge was an exceSSIve response to the facts as It found them, It could reqUIre that the em ployer employ the grlevor to employment in "another substantially eqUIvalent pOSItIOn." 32 - The partIes made no submIssions about the meamng of "another substan- tially equivalent position." In partIcular, there was no argument about whether my power to provide for the employment of the gnevors m another substantially eqUIvalent position is hmited by the present avaIlablhty of such a posItion. It IS not at all obvious that it IS. Like the Issue of quantum of compensatIOn payable and other issue of implementation, however, thIS is an Issue WIth whIch I remam seised and wIll address only If the partIes are unable to resolve It themselves. Remedy I have concluded that wlu.le the grievors dId not use unjustified force to the degree alleged by the employer, each of them dId use force on an inmate that was not necessary for self-defence or the defence of another person or necessary to restram the inmate. I am not persuaded that the conduct of either gnevor was more senous than the conduct for whIch another correctional officer m the very same Institution was gIven a 15 day suspension m 1992 I have been offered no other analogous examples of dlsciplme for such conduct. There is no evidence of an announced change of attitude toward such conduct smce 1992 I am not per- suaded that there IS any other reason why the response to the mIsconduct that the employer has been able to prove should be more extreme than the employer's was in that case. Accordmgly, I dIrect that the employer forthWIth restore the gnevors to employment, with effect as of their date of discharge. Wlu.le I cannot require that It dos 0, the employer IS free to restore them to the posItion and dutIes they per- formed pnor to the mCldent m questIOn. I dIrect that If It does not do that, It IS to employ them m pOSItIOns and at dutIes whIch are substantIally equivalent save as to dIrect responsiblhty for and opportumty for contact WIth mmates The suspensIons and dIscharge m Issue are to be removed from their records, and a 15 day suspenSIOn IS to be substItuted m each case as though It had been Im- posed Immediately followmg the mCldent. The employer IS to compensate each gnevor for any loss of wages or benefits that he can show he suffered as a result of the employer's response havmg exceeded a 15 suspenSIOn, subject to the usual - 33 - limitation that It is not obliged to compensate a grievor for any loss he has mlti gated or could wIth reasonable effort have mitigated. I remam seIsed wIth any issue arIsmg out of the implementatIOn of these dIrectIOns, mcludmg the amount of compensation payable and the substantIal equivalency of the positions to whIch the gnevors are returned. Dated at Toronto this 23rd day of October, 1997 'i !