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HomeMy WebLinkAbout1997-0632BEAULAC99_02_10 j EMPLOYES DE LA COURONNE ONTARIO \ CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-13g(j GSB #0632/97 OPSEU#97D786 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Andre Beaulac) Gnevor - and - The Crown In RIght of Ontano (MInIstry of the SolICItor General and CorrectIOnal ServIces) Employer BEFORE Nimal V DIssanavake V Ice-Chair FOR THE Ed Holmes GRIEVOR Counsel Ryder Wnght BlaIr & Boyle Bamsters & SolIctors FOR THE DennIS Bolton EMPLOYER Staff RelatIOns Officer MInIstry of the SolICItor General and CorrectIOnal ServIces -- HEARINGS Januarv 13, 1998 Apnl 28 29 1998 - May 5, 1998 August 25 1998 December 21 1998 ..- 2 DECISION This is a grievance dated April 21, 1997 filed by Mr Andre Beaulac, wherein he grleves that he was suspended tor five days without just cause, resulting in loss of 52 hours pay The grievor started employment as a Correctional Offlcer at the Metro Toronto East Detentlon Centre In April 1986 In September 1986 he transferred to the Metro Toronto West Detention Centre (MTWDC) and worked in the Adult Male Wing In 1993 he was reassigned to the Young Offender Wing At the time of the incident that resulted in the dlscipline In question, he had over 10 years of serVlce It is agreed that prior to thls incident on January 21, 1997, the grievor had a dlscipline free record and was considered by management as a very good and capable correctional officer The letter of discipline dated April 7, 1997 from Mr Brian O'Rourke, Acting Manager of Young Offender Programs, reads as follows On Wednesday, April 2 Cld, 1997, a meeting was held In the boardroom of the Metropolitan Toronto West Detention Centre to permit you the opportunity to respond to the allegations that 1 On January 21 st , 1997, you acted unprofessionally by facilitating a physical altercatlon between two offenders in young offender admitting and discharge and further 2 On January 2pt, 1997, you failed to reRort and properly document two physical altercations between offenders in young offender admitting and discharge, and further r .. 3 3 On January 21"t, 1997, you failed to report and properly document a staff use-of-force incident in young offender admitting and discharge contrary to the MCS Act, Regulation 77'8, Sectlon 7 (3) , and further 4 On February 10th, 1997, you acted unprofessionally by threatening a young offender (Paragraph numbers added) In attendance were you, Mr M Todd, Employee Representative, Mr M Conry and the undersigned On January 21 st , 1997 you were assigned to the 0600 - 1800 hours shift In young offender admltting and discharge On January 22nd, 1987 a young offender alleged that you facilitated an altercation between he and another offender in the admitting and discharge area Thls allegation resulted in an investlgation conducted by the securlty manager, and as a result of that lnvestigation, it lS further alleged that as a result of an utterance you threatened the same young offender on February 10th, 1997 At the meeting, you and your representative were afforded the opportunity to read the portlon of the investigation report applicable to you In response to the first allegation you acknowledged opening a cell door and instructing an offender to exit which allowed an altercation to occur between he and another offender You stated your intention was to indicate to one offender that he should "plck on someone his own size" You further acknowledge that you exercised poor judgment and that "the situation blew up in my face" While it may not have been your intention to have the offenders physically confront one another, the altercation that ensued was entirely as a result of your poor judgment and unprofessional behaviour I find therefore that the allegation lS substantiated In response to the second and third allegations you acknowledge failing to report or document the two altercations and the resulting use-of-force You stated that the incidents did not warrant documentation and have been seriously blown out of proportion You acknowledged however that in hindsight you < " 4 should have written a report and that you erred In judgment There is no discretion in reporting an altercation or use-of- force By your own admission you neither reported nor documented the incident I find therefore that both allegations are substantiated In response to the fourth allegation you deny threatening the offender statlng that you dld say something to the officer standlng nearby, however, you do not remember what you said I am satisfied that based on the statements, of the offender and the security manager who overheard your remark, that the words "soon, soon", were spoken by you, directed towards the offender and meant as a threat I find therefore that this allegation is substantiated Considering all the factors In this situation, a serlOUS penalty lS warranted You have breached the baslc responsibilities of a correctional officer in that you seriously compromised the care, custody and control of an offender and in particular the trust and integrlty that are inherent in your position as a role model for young offenders You are therefore suspended for 5 days as follows Friday, April 11 th, 1997 - 0600 - 1800 hrs (12) Saturday, April 12 th, 1997 - 0645 - 1515 hrs (8 ) Sunday, April 13 th, 1997 - 0645 - 1515 hrs (8 ) Wednesday, April 16th, 1997 - 0600 - 1800 hrs (12) Thursday, April 17th, 1997 - 0600 - 1800 hrs (12) You will return to duty at 0600 hours on April 18 th, 1997 for your scheduled 0600 - 1800 hours shlft on the male unit You are to contact the schedullng manager at your earliest convenience to determine your schedule for the male unit Your conduct in this incident is of such a serious nature that should a slmilar offence occur, a more severe penalty, up to and including dismissal, will be considered - There are thus four allegations of wrong-dong agalnst the grievor The Board has to determine whether the grlevor engaged In any of the 5 alleged conduct if so, whether that conduct was culpable so as to Justify a discipllnary response from the employer, and flnally, If some discipline was warranted, whether the partlcular penalty imposed on the grievor was just in all of the circumstances The allegations against the grievor may be separated into two incidents The first three allegations arise out of an alleged incldent on January 21, 1997 Allegation number 4 in Mr O'Rourke's letter relates to an alleged threat by the grievor on February 10, 1997 In imposlng the 5 day suspension without pay, th~ employer had concluded that the grievor was culpable on all four allegations THE EVIDENCE 1 The January 21, 1997 incident This incident gave rlse to two related allegations First, facilitating a physical altercation between two Young Offenders (allegation no 1 ) and second, fallure to report (allegations no 2 and 3) (a) Facllitating a physical altercation Mr Alan Quinn, Operational Manager, testifled that on January 22, 1997 he was advised that a young offender ("YO" ) P had requested a form to lodge a complaint agalnst a correctlonal officer He met with P, who alleged that the previous day an officer had accused him of picking on another YO and had released a big YO from a cell and had him fight him He wanted to lodge a complaint wlth the jail authorlties and also f ! I J 6 requested that the Police be informed Mr Quinn obtained P's written complaint and also informed the Police The Police attended at the facility and interviewed P They declined to lay any charges and advised P that if he wished he would have to lay charges by way of a private information Mr QUlnn completed an Occurrence Report and also sent P for an examination at the Health Care Unit Health Care reported that they found an abrasion on P's right cheek and small cuts on his right thumb and mlddle finger In his Occurrence Report, Mr Quinn noted that all YOs who were in the vicinity at the time of the alleged incident were to be intervlewed and asked for wrltten statemen~s He ended his report by noting "Reports to be requested from Mr Bradley and Mr Beaulac" In a second Occurrence Report dated January 23, 1997, Mr Quinn detalled the information verbally provlded by P the previous day According to P, he had been "play-fighting" with another YO (referred to as "the little white kid" ) while they were in a holdlng cell walting to be transported for court appearances The grlevor accused P of picking on the little white kid He took both out of their cellon to the hall way and had the little white kid remove his shirt Red marks were visible on hls chest The grievor then put the little whlte kid back in the cell and opened another cell and brought out G, a larger built YO The grievor suggested to P that he try picking on G As P was trying to h say that he did not want to do that, G threw a_punch at P P grabbed G In a headlock and they hit the wall and then fell on the floor J 7 According to P, G then "kicked at him about hls head several times" The grievor then pulled G off of him and put him back in his cell Mr Quinn interviewed 17 YOs who were in the viclnlty He testifled that their interviews and wrltten statements were unhelpful because they were "all over the map" p's statement written on January 22, 1997 was generally conslstent wlth what he had told Mr Quinn prevlously except that he made two assertions in the written statement, whlch he had not related to Mr Quinn Flrst, he alleged In the wrltten statement that after releasing G from his cell, the grievor en~ouraged P to fight G by saying "come on P, don't be such a pussy" Second, he alleged that as a result of his altercation with G he sustained "mild lnjuries to my right hand, two head injuries and some back pains" Mr QUlnn did not attempt to talk to the grievor or Mr Bradley, the two correctional officers who were present at the tlme of the incldent He decided that his lnvestigation was inconclusive and recommended to the superintendent that a further investigation be carrled out Mr Robert EWlng, Securlty Manager at MTWDC, was assigned to do this additlonal investlgation He was provided with all of the documentation that had been generated during Mr Quinn's lnvestigation In addition, on January 25, 1997, Mr Ewing separately interviewed Mr Bradley and the grievor in the presence of a union representative He also interviewed p and some of the other YOs who had earlier been interviewed by Nr - Quinn I .. 8 Mr Ewing issued hls Investigation Report on March 17, 1997 He testified that it was based solely on the interviews he had with P, Mr Bradley and the grievor He made factual findings, but made no recommendation on discipline Mr Ewing stated in cross-examination that he believed the grievor when he stated that he did not lntend to cause a fight, that he had only intended, by using a YO blgger than P as an example, to make a point that P should not pick on smaller cell mates, but hls good lntentioned plan had back fired He concluded that It was poor judgement on the grlevor's part Mr Ewing also acknowledged that from the outset the grlevor admitted that he had exercised poor judgement and apologized and expressed remorse The grievor's testimony as to what happened on January 21, 1997 is consistent with the account he made to Mr Ewing during his investigation, and hls explanation to Mr 0' RourJre during the disclplinary meeting His evidence was corroborated by his partner at the time, Mr Tim Bradley, in all material respects The grievor and Mr Bradley were the only witnesses to testify about the incident from first hand knowledge P, G, the little white kid, nor any of the other YOs who may have witnessed the incident testified In the circumstances I have no reason not to accept the grievor's account of what occurred over the hearsay of P presented to the Board The grievor testified In a straight forward and candid manner and In th_e absence of any direct evidence to the contrary I accept his account of what happened . 9 The incident occurred on the day shift on January 21, 1997 In the Admitting and Discharge Area, which included 4 holding cells At the time Mr Bradley and the grievor were staffing the area There were approximately 18 YOs in the 4 cells awalting transportation for court appearances The grievor observed P and another YO (the little white kid) scuffling inside cell no 4 He took both out and had them stand against the wall They were asked what the problem was They both said they were just engaging in horseplay The grlevor did not belleve them He examlned the 2 YOs for lnJuries P did not appear to have any injuries, but the other YO had red marks on hls chest The grievor believed that P was bullying the other YO who was much smaller bUllt He put the little white kld In the cell and went to cell no 1 which was occupied by several YOs, and asked G to step outside and stand against the wall He wanted to use G as an example to make the point to P that he should not bully llttle kids He told P "if you want to pick on someone, why don't you pick on someone your own size" G looked lnto the cell and saw the little white kid G said "So that's the little white guy - some tough guy" Then suddenly to hls surprlse, G and P came together No blows were exchanged No one swung According to the grlevor, ''It was more or less the two grabbing each other " Immediately the grievor and Mr Bradley stepped in and without any reslstance the two let go and they were returned to their cells The grievor did not consider an assault to have occurred and no lnjuries were ~oticed on either YO i , - .. 10 Mr Bradley testified that he also was surprised when G went at P because he knew that the grievor had not intended that He confirmed that no punches were thrown, that they just "grabbed shoulders" When he and the grievor stepped in between the two, they quickly separated No lnjuries resulted to elther YO There were two major conflicts between the testimony of the grievor and Mr Bradley on the one hand, and P's statement to the employer on the other The flrst relates to the degree of the physical contact between P and G Both Correctional Officers have malntalned that no blows were exchanged and no inJuries resulted The extent of the confrontation was a momentary grabbing of shoulders According to P's statement, G threw a punch at P, they went down on the floor and G klcked P on the head several times p also claimed that he suffered injuries during the scuffle Secondly, P clalmed that the grlevor encouraged a fight by stating to him "Come on P, don't be such a pussy" The grievor vehemently denled that I accept the grievor's testlmony where it conflicts wlth P's version of what occurred I do this not only because of the hearsay nature of P's account The grievor's testimony is more consistent with the rest of the evidence For example, if a serious physical altercation occurred resulting in an abrasion to P's cheek and injuries to his right hand, It lS strange that no one noticed it The evidence is that lmmediately after the inciden_t, o was transported for a court appearance If he had an abrasion on his cheek it is likely that the escorting officers, P's lawyer or any number of people who y 11 encountered P during the court visit would have notlced it There is no evidence that anyone saw any injury The injuries were first reported by P the following day It was then that Health Care examined and detected the injurles It lS significant to note that in his first Occurrence Report, Mr Quinn set out the information related orally to him by P That has no mention of any injury The evidence is that young offenders are regularly in the habit of "letting off stearn" by engaging In rough-houslng and horseplay It is more probable that P suffered hls injuries sometime after his return from Court I note also that Mr Ewing conceded that based on the eVldence he haD, he could not conclude that P suffered the injuries during hls altercation with G (b) The failure to report There is no dispute that neither Mr Bradley nor the grlevor filed any occurrence report or any other form of written report following the lncident on January 21, 1997 Mr Bradley was disclplined by way of a written reprimand for his failure to report and he did not grieve While the letter of discipline makes reference to "The MCS Act, Regulation 778, section 7(3)", at the hearing the employer did not place reliance on those provisions Instead, for purposes of allegations 2 and 3 relatlng to failure to report, the employer referred the Board to the Standing Orders of the MTWDC Standing Order no 20 on "Use of Force" -~ lncludes the following provision - DOCUMENTATION REQUIRED I ~ 12 Where an employee uses force against an offender, the employee and all employees present must submit written reports to the superintendent Written reports will describe the nature of the threat posed by th~ offender, the specific details as to how the force was applled, and all other circumstances pertaining to the incident All use-of-force situations are reported In writing to the reglonal office Standing Order no 21 on "Assaults" includes the following OFFENDER ALLEGATION OF ASSAULT BY OTHER OFFENDER(S) Whenever an employee lS advised by an offender of an assault, or is witness to an offender assault, by one OL more offenders, the following procedures are followed - The offender(s) is placed In a secure area after receiving medical attention, - Medical examination is required in all cases, includlng those where injuries are to visually apparent, - The staff member recelving the complaint will initiate an accident/injury report, whether or not an injury is apparent - Signed statements are requested from the offender(s) involved and witnessed by a staff member, - Occurrence reports covering relevant details, physical evidence and action taken are submitted by all employees involved, including the shift superVlsor, - The police are contacted if the offender wishes to pursue crimlnal charges If the offender does not wish the matter investigated and charges lald, he/she wlll sign a written statement to thls effect, -- - Misconduct/behaviour reports are submitted by the reporting offlcer, identifying in sepa.Fate reports the offender complainant and the name(s) of those alleged to have committed the assault, I , 13 - The shift supervisor discusses the need for protective custody with the offender (adults only) and records speciflcs In a report If it lS decided to place the adult offender In protective custody, a protective custody form is signed by the offender and witnessed by a correctional officer, - If the adult offender declines protective custody, the shift supervisor wlll determine the necessary level of offender safety and protection, e g , protective custody, segregation, or regular living unlt accommodation, - All reports are submitted to the shi ft supervisor for further investigation, if necessary, assessment and comments prior to the end of the shlft and - Upon completlon of the investigation, the shift supervlsor forwards all reports to the senlor assistant superintendent Mr Ewing testified In chlef that to his knowledge these standing orders were followed consistently at MTWDC He stated that even horseplay lnvolving physical contact lS considered to fall within the standing orders In cross-examination, unlon counsel asked Mr Ewing whether he was saYlng that every time there is horseplay between two YOs involving physical contact, an officer is required to follow the procedure set out the standing orders He replied that an officer need not necessarily do that He said, "it is a judgement call by the offlcer dependlng on whether there was contact and the seriousness of it" When asked whether a report is required every time there lS contact to any degree, Mr Ewing replied that an Occurrence Report was not compulsory, - but that whenever there lS any physical contact between YOs it should be documented In some form - perhaps on the YO's card, and the YO must be 14 examined by Health Care However, under cross-examination Mr Ewing conceded that while that was the policy as stated in the Standing Orders, he was not sure if in practlce that pollcy was strictly followed Mr Ewing also conceded that based on the information he had, he could not conclude that the . . . found on January 22 nd were suffered lnJurles by P during the scuffle with G the previous day However, his position was that Slnce the offlcers used force on the YOs, they were obllgated to file reports He agreed that the altercation between P and G was minor, but sald "All we say is, if you break up B fight and lay hands on an inmate you must do a report to show what you dld and why it lS justified It is to protect the staff and the government Whether it was mlnor or major, the pollcy requires a report" Mr O'Rourke, who made the decision on discipllne, also testified about the pollcy on the reporting requirement He testifled that In determlning whether discipline was warranted and the level of dlscipline, he considered the gravlty of the incident, the grievor's record of service and his appraisals on file He sald, "1 considered his conduct extremely serlOUS 1 didn't think Mr Beaulac understood his responsibillty then or subsequently 1 felt 1 had to somehow get his attention" Union counsel put to Mr O'Rourke Mr Ewing's testimony that based on the lnformation he did not believe that the grlevor intended to cause a fight, but that his good intentions had backfired and asked if Mr O'Rourke disagreed with that Mr O"Rourke"s response was that he 15 did not have to agree or disagree with Mr Ewing because it was a basic rule that an investigator should not make recommendations on discipline Counsel suggested that Mr Ewing had testified as to hls belief on what the facts were Mr O'Rourke responded "That's his belief I can't say if Mr Beaulac intended or not If When counsel put to Mr O'Rourke the evidence that the grievor had apologized and had been remorseful, Mr O'Rourke's response was, "But I wasn't there I cannot understand why he would apologize to Mr EWlnglf After further cross-examination, however, Mr O'Rourke reluctantly accepted that the grievor had not intended to cause an altercation and that he had apologized and shown remorse to Mr EWlng who was the employer's representatlve He also acknowledged that the grlevor had admitted In hindsight that he should have written a report about the incident Counsel asked Mr O'Rourke to confirm that according to strict policy, a written report was required for every minor altercation between YOs, including lncidents of horseplay Mr O'Rourke agreed When asked what the actual practlce was, he replied "In my experience, reports are written for minor or serious altercations between YOs There is obviously a certain amount of discretion, but if there is any physical contact, reports are normally written If Counsel put to Mr O'Rourke that both the grlevor and Mr Bradley had told Mr Ewing that they made no reports because they considered the altercatiQ..D between P and G to be minor Mr O'Rourke replied, "They may consider it to be minor I don't There was a physical altercation, force was used to separate them 16 and injuries were suffered The use of force by the officers itself requires a report If officers use force and no reports are done, its always followed up" When counsel put it to Mr O'Rourke that unlon witnesses will testify that thls type of breaking up of mlnor altercations happen often and are not reported, he agreed that not every such instance lS reported and that "it depends on the degree of physical contact " The grlevor testlfied that he did not write a report about the lncident because he did not feel at the time that anything significant had occurred to warrant one He said that written reports were not expected by the employer for every minor lncident, and that officers were allowed reasonable discretion Because there were no blows and no force was required to separate the YOs, he did not feel a report was required The grievor testified that it was rare to have a shift where there is no altercation or near altercation Young Offenders had endless energy and were constantly wrestling, play-fighting, kicklng and punching Arguments erupt constantly over things such as what TV channel to watch, about someone being on the telephone too long, and whlle plaYlng cards They often watch martial arts programs on TV, like the Power Rangers, and try to imitate them Any of these can result In physical contact According to the grievor, offlcers do not report every tlme there is a minor physical altercation, because this is si.mply "kids belng kids" He testified that if he had to literally follow the policy set out in the standlng orders, he would be spending most of his work tlme writing 17 reports So he had to distinguish between what is serious and what lS just "kids being kids" Under cross-examinatlon, the grlevor was asked to explain what the employer saw as a contradiction, because on the one hand he had stated that he had a discretion involving mlnor altercations and that he exercised it, and on the other hand he had admitted It was poor judgement and had apologized The grievor's response was, "Before thls incident I didn't feel I should report minor incidents, after thls I will report all incidents where any force is used" The grievor testifled that sometlme after this incldent, he was escorting an inmate The inmate stopped and started chattlng with an inmate in a cell The grievor directed the inmate to keep moving but he refused The grievor grabbed him by the arm and moved him along Having learned from the lncident that led to his dlscipline, he declded to do an Occurrence Report because he felt the employer may consider there was use of force He handed the report to his supervisor, Mr R Mothersole According to the grievor, Mr Mothersole told him, "almost In a chastising way", that a report was not necessary for that incldent When the grlevor informed him that he did the report because he had got into some serious trouble for not doing a report, Mr Mothersole advised him that the officer had a discretion and that this was a case where a report was not requlred The grievor testified that M~ Mothersole's advice was consistent with the understanding he had and his practice prior to the January 21, 1997 incident, as to when a report was required I 18 Mr Bradley was also asked by unlon counsel why he did not wrlte a report about the incident He explained that this type of incident happens very frequently He said "If we document every incident like this, we will be spending our entire time writing reports" In this case, a report was a non-issue for hlm, because the 2 YOs were merely "posturing" There were no blows and no assault had occurred Under cross-examination, Mr Bradley reiterated that the practlce was to allow officers the discretion to decide whether a report was required for minor physical altercations When asked whether he agreed now, that he should have done a report on the incident in question, he said "Yes Probably I should have - after all this hoopla " Mr Mort Todd, a correctional officer wlth 12 years experlence and for most of those years a unlon office holder, testified that he spent 5 years in the YO unlt at MTWDC He assisted In setting up the procedures and house rules for the YO unit, which had been set up at the MTWDC only recently He also periodically trained new staff joining the YO unit Mr Todd referred to the following provislon in the "Forward to the Standing Orders" INTERPRETATION AND APPLICATION Standing orders cannot address every situation which may arise Rather, they represent standards for and parameters of operatlon Therefore, they should be interpreted and enforced in a - reasonable manner reflecting common sense, sound judgement, tact and careful attention to detail . 19 Mr Todd testified that he served on a Management/Union JOlnt Standing Committee chaired by the Deputy Superintendent, which reviewed the standing orders He said that the purpose of including the above paragraph In the forward was to indicate that the Standing Orders were "not carved In stone" He testified that officers have been repeatedly told that standlng orders were only guidelines, which must be applied with some flexibllity although some provlslons of the standing orders are to be applied with more rigldity than others Mr Todd also referred to Standing Order no 22 on "Young Offender Discipllne", and particularly to the following preamble Young offenders are advised of instltution rules on admisslon and they are required to read and sign an assessment form to that effect Many problems can be resolved by staff exercising good communlcatlon skllls and providing constructive directlon He testifled that over the years the emphasls has significantly shifted from reporting and disciplining YOs, to counselling and coaching Segregation of YOs was much rarer now When there lS misbehaviour, the officer on duty has to declde, depending on the severity of the situation, whether to report the misconduct or try to counsel and educate the offender He referred the Board to the followlng provlslon of Standing Order no 22 -- CORRECTIVE ACTION - Correctional officers inltiating corrective action have the authority to use one, or an appropriate combination, of the following actions 20 - respond verbally, - bring attention to the action, - express disapproval, - discuss the incident and the officer's reason for disapproval, or counsel the young person, - set logical consequences related to the severlty of behaviour, e g , assign a brief (under two hours) work asslgnment that is not part of the normal routine, - remove the person temporarily from the sltuation or group, thereby allowing the young person a chance to cool off and resume the activity when he has calmed down, and - submlt a behavlour report provlding detalls of the breach of rules and the young person's behaviour Mr Todd testified, based on the above provision, that the submission of a behavioural report was only one of seven options an officer has In dealing with YO mlsconduct, to be used depending on the circumstances According to him, major factors to be considered in selecting the optlons included the severlty of the misconduct, whether the particular offender had previously been counselled without success, the offender's prior behavlour record, and the nature of the rapport and relationship between the particular offlcer and the offender He testified that in exercising the discretlon, in some cases the choices are obvious For example if there lS a serious flght or a stabbing, the officer has no discretion He must submit a report On the other hand, In the case of a verbal altercation the officer has all the discretioI} He explained that in between these extreme situations, there can be a range of behaviour involving physlcal contact such as horseplay and rough housing lnvolving I 21 punching and kicking Whl1e any physical contact may constitute an assault at law, it was impractical to put in a misconduct or behavioural report for every instance of physical contact because it happens on a regular basis among YOs In most cases both participants would lnslst that they were just engaging in horseplay, though there was physical contact According to him, that lS the reason the preamble to the Standing Orders states that the officer must use common sense and sound judgement He also reiterated that while the written policy in standing order no 20 requires a report every time there is any degree of physlcal contact, that was not the practlce followed He testified that management was definitely aware that in practlce the policy was not strictly followed The policy has been applied with flexibility He stated that on many occasions he has been told by managers that a report was not requlred, when he had decided to do one On other occasions when he had decided not to do a report, managers have requested a report He concluded by stating that if compliance with the letter of the policy as stated in the Standlng Orders is demanded by the employer - that a written report be submitted every time there is any physical contact - it would clog up the whole system There will be too many investigations going on and In the adult areas there will not be enough segregation cells to put the offenders in -- 2 The alleged threat on February 10, 1997 - ThlS relates to allegation no 4 in the letter of dlscipline As indicated In the letter, the employer concluded that "the words "soon 22 soon" were spoken by you, directed towards the offender and meant as a threat" 1 turn to the employer's eVldence in thls regard The following is not in dlspute Following the January 21, 1997 lncldent, for unrelated reasons, the grievor was reassigned from the YO unit, to the adult male unit of the MTWDC On February 10, 1997 Mr Ewing was interviewing P in an offlce Mr Ewing had to go to the washroom and he asked Correctional Officer Mr Anson Humphreys to supervise P until he returned P and Mr Humphreys were in the hallway outside the office. As Mr Ewing proceeded down the hallway he met the grievor escorting an adult male lnmate and going the other way Momentarily, the grievor and the inmate passed by the point in the hallway, where Mr Humphreys and P stood After this point the stories differ Mr Ewing testified that, knowing that P was In the hallway and that the grievor was about to walk by him, he was wondering whether there would be "a problem" So he turned around and watched as the grievor walked by P and Mr Humphreys He heard the grlevor say "soon soon" as he continued walking He said that at that time he was 50 to 60 feet away There was more emphasis put on the last part of the word "soon" He said "1 felt it was a kind of a threat to P - that if Mr Beaulac ever got back to the area he may take -- action " - [ 23 Mr Ewing testified that subsequently P confirmed to hlm that he too had heard the grievor say "soon soon" and that he too felt that it was a threat that if the grievor ever came back to the YO wing he would get back at P for having made a complaint against the grievor Mr EWlng asked for reports from Mr Humphreys and the grievor They both reported that the grievor said something directed at Mr Humphreys (and not P) but neither could remember what words were spoken Mr Ewing concluded that both officers were unwllling to admit what was stated by the grlevor because then they would have difficulty explaining what "soon soon" meant Under cross-examination, Mr Ewing stated that he also lnterviewed the male adult lnmate who was wlth the grlevor and he had stated that he could not recall hearing the grievor say anything He admitted that the hallway in question was curved like a hockey stlck and that he had turned the curve at the time he heard the comment However he insisted that he could see P, Mr Humphreys, the grievor and the male inmate because "its all glass windows" He agreed that at the time the grievor spoke, the grievor was walking away from him and therefore what he could see was the grievor's back Yet he insisted that he clearly heard the grievor utter the words "soon soon" He felt that it was a velled threat to P, but he was not concerned about any immediate problem So he went on his way -- Mr Ewing admitted that he did not know if the qrievor had addressed the comment to P or to Mr Humphreys, but he assumed he was talking to P 24 Counsel put to Mr Ewing that both the grievor and Mr Humphreys would testify that the grievor had directed the comment to Mr Humphreys and not to P, and further that the comment was not "soon soon" Mr Ewing's response was Then its very surprising they both couldn't remember what was sald" When counsel suggested that Mr Ewing had mlslnterpreted a comment the grlevor made to Mr Humphreys, Mr Ewing replied, "I doubt it " The grlevor reiterated during his testimony that he could recall maklng a comment to Mr Humphreys as be passed by, but could not recall what the comment was He was certain he did not say "soon soon" He said something to Mr Humphreys just to be polite - something like "hello what's up" or such general comment According to the grievor, Mr Ewing could not have been able to see him from where he was because his Vlew would have been obstructed by wide 6-8" support beams In between the glass wlndows Under cross-examination when asked whether he could recall what his comment was, the grievor said, "No, it was an insignlficant comment" Mr Humphreys testified that as the grievor passed by, he and the grievor made eye contact, and the grievor said, "llke eh Humph, what's up" When union counsel asked whether he recalled those exact words, Mr Humphreys said that he did not recall the exact words, but he recalled that In passlng the grlevor made a comment "to recognize that I was there " He had no doubt about the fact that the grlevor addressed the 25 comment to him, and not to P It was a greetlng addressed to him to recognize hls presence Mr Humphreys testlfied that he did not work in the YO side He was only watching P at Mr Ewing's request to enable Mr Ewing to go to the washroom He had no idea who the YO was He testified that had he heard the words "soon soon" from the grlevor, he would not have understood what he meant It would have been a strange comment He would have remembered that, and he would have asked the grievor what he meant DECISION Based on the foregoing evidence, has the employer established just cause for any discipline I have concluded that it has not On allegatlon no 1, the grievor, Mr Bradley and the employer's own investigator testified that the grlevor did not intend to cause any altercatlon Hls lntentlons were good but it did not turn out the way he had intended At the first opportunity he got, he acknowledged that he had exercised poor judgement He apologized and showed remorse Whlle Mr O'Rourke admitted under repeated cross-examination that the grlevor had not intended to cause an altercation and that he had apologized and expressed remorse, it was apparent that Mr O'Rourke was not prepared to accept some of Mr Ewing's f~ctual findings He had doubts about the grievor's intentions He appeared to accept P's verSlon of the nature of the altercation Even In the face of all of the ~ 26 contrary evidence, Mr O'Rourke stated that he considered the altercation to be not minor because P suffered inJuries There lS no evidence to support a finding that P suffered any injury during the altercation with G Indeed, Mr Ewing readily conceded that based on the information he had, the incident was minor and that he could not conclude that P's injuries were received during his altercation with G Similarly, contrary to all of the evidence, Mr O'Rourke testlfled that the grlevor had not understood hls responsibility "then or now" The evidence lS that at the flrst opportunity the grievor accepted responslbillty Based on the evidence, we are left with a grlevor, who has had no previous discipllne, no prlor instances of making bad judgements, and no record of counselling related to performance of duties, exercising bad judgement In the carrying out of his duties for the first time It resulted in a mlnor scuffle between 2 YOs, whlch was broken up with little effort The grievor immediately acknowledged his error In judgement and expressed remorse No discipline is warranted In these circumstances Wlth regard to allegation nos 2 and 3 relatlng to the failure to file reports, the evidence clearly establishes that there was a marked dlfference between the policy as wrltten, and how the policy was applied in practice While In the letter of discipline ,_ Mr O'Rourke states that "there is no discretion in reporting an altercation or use of force", the evidence leaves no doubt that In practlce officers were allowed a . , J 27 dlscretion in distinguishing between minor altercations and instances of offlcers maklng physlcal contact with YOs which do not warrant a written report and more serious occurrences which do call for a written report Where management disagreed wlth an officer's judgement, the practice was to request a report from the officer after the fact In the present case, there were no blows exchanged and no injuries resulted The extent of the altercation was a momentary grabbing of shoulders The grlevor and the other officer did not have to exert any force to end the altercatlon They stepped in between the two YOs and they were effortlessly separated In the circumstances, the grievor honestly concluded in the exercise of his discretion, that it was a mlnor incident which dld not require reportlng In the Board's Vlew, havlng given the officers a dlscretion to decide when to report, it is not appropriate for the employer to second-guess an officer's honest judgement in hindsight, and impose discipline on that basis If the employer wishes to have more control and direction over report-writing, it would at least have to give clearer criteria as to when a report is to be done, and what constitutes use of force In the present case, the grievor made an honest judgement that a report was not warranted because in his view the altercation was insigniflcant The practice was to request for a written report if the employer felt one was required Indeed in his occurrence report, Mr Quinn specifically noted that reports should be obtalned from the two officers involved It was never done - . , I 28 Considering the grievor's past record, the fact that this again was a case of first instance, and the fact that the grievor irrunedlately acknowledged that he should have written a report, I have concluded that no discipline was justified As the evidence indicates, managers have indlcated that they do not expect and do not want wrltten reports in every case of physical contact between offenders or between an officer and an offender That leaves a slgnificant "grey area" where offlcers are called upon to make a judgement as to what the employer's expectation may be The fact that a manager happens to disagree In hindsight wlth a judgement honestly made by an offlcer do.es not give cause for discipline Turning to allegation no 4, I have no doubt that Mr Ewing honestly believes that he heard the grlevor say "soon soon" However, I am not at all convinced that his bellef is well-founded or reliable There were 5 lndividuals who could have heard the corrunent by the grievor Of those, P and the male inmate who was with the grievor did not testify The grievor and Mr Humphrey were within a few feet of each other at the time The grievor very emphatically testifled that the only corrunent he made was addressed to Mr Humphreys and that it was an insignificant corrunent in the nature of a greeting He denied that he said "soon soon" Mr Humphreys similarly insi~ts that the only corrunent made by the grievor was directed to him He also says that it was an - insignlficant corrunent to acknowledge his presence that if the He states . I 29 grievor uttered the words soon soon", he would not have understood what that meant He would have remembered if such a strange comment had been made and he would have asked the grievor what he meant Against this evidence, we have Mr Ewing's testimony He was approximately 50 to 60 feet away If I accept his own testimony, he was observing the grievor through 2 glass partitlons at the time He was anticipating some trouble between the grievor and P At the tlme the grievor spoke, all Mr Ewing had at best was a rear view through 2 glass partltlons, of the grlevor walking away from hlm at a point 50 to 60 feet from where Mr Ewing was Mr Ewing stated that he heard clearly the words "soon soon" He assumes that the grlevor was talking to P and interpreted the words to be a veiled threat meaning "If I ever get back to working on the YO unit I will get back at you for making a complaint against me " On balance, the weight of evidence clearly supports the grievor's version of what was said Mr Ewing placed much reliance on the fact that both the grlevor nor Mr Humphreys had stated that they could not recall what exactly was said by the grlevor, if it was not "soon soon" However, in my view, their inability to recall is very much consistent with their eVldence that the comment was an insigniflcant general -- greeting It is not surprising that one would n~t recall the exact words of greeting uttered in passing I find credlble Mr Humphreys' evidence -. that he soon", because would have remembered If the grlevor said "soon I I '" 30 that would have been a strange comment In the ci rCUlTIS tance s, I find that the employer has not established that the grievor made a threat to p It follows from all of the foregoing findings, that the employer has falled to establish any wrong-doing by the grievor as would give rise to just cause for any discipline I am convinced that the events that preceded this arbitration have served to put the grievor on notice that hls judgement was not In accordance with the employer's expectations He has readily acknowledged that from the ou tse..t In the circumstances no dlscipllne was warranted or Justified The employer is hereby directed to rescind and strlke the dlscipline against the grievor from all records He is to be compensated for all losses resulting from the unjust suspension I remain seized with jurisdiction to deal with any disagreements about the implementatlon of this declsion Dated this 10th day of February 1999 at Hamilton, Ontarlo ~e/~-- Nimal V Dissanayake Vice-Chair