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HomeMy WebLinkAbout1988-1508.Rankin.90-02-06 , : r, \, , EMPLOYES DE LA COURONNE ONTARIO "' CROWN EMPLOYEES OEL'ONTARIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST TORONTO, ONTARIO. M5G 1Z8 SUITE 2100 TELEPHONE/TELEPHONE 180, RUE DUNDAS OUEST TORONTO. (ONTARIO) M5G lZ8 BUREAU 2100 (416) 598-0688 1508/88 IN THB MATTBR OF AN ARBITRATION under THB CROWN BKPLOYEBS COLLECTIVE BARGAINING ACT Betore THB GRIEVANCE SETTLBHBNT BOARD Between: OPSEU (Rankin) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer Before: R.L. Verity Vice-Chairperson I Thomson Member E Orsini Member For the Grievor: P. Lukasiewicz Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the EmDloyer: J. Thomson Counsel Hicks Morley Hamilton stewart storie Barristers & Solicitors Hearinas: June 23, 1989 November 27, 1989 November 28, 1989 ~ 2 DEe I s ION Rr,hprr R."lnl- n n r""'nr rect 1 ona I Offlcer 2 at the Metro Toronto West DetentIon Centre recelved a 23 day suspensIon as a result ot two seot'\rate a I (eqat Ions arislng from the same IncIdent that on or about. December t 2 , 1988J you used excessive force on an inmate J and further, that on or about December 12, 1988J you did not report the full circumstances surroundlng the use of force on the Inmate On January 20 1989, Metro West Deputy Superintendent 0 L MarKlnnon lmoosed a 20 day susoension for the alleged use of exceSS1ve force and a 3 day susoenSion for the failure to fIle ~ romoletp orcurrenre reoort The qrleVOr mainta1ns that he was unlllstl ,11 sr Ii 11 ned ~nd seeks tll \ I remedlal redress A hearlng before the Grlevance Settlement Board commenced on June 23, 1989 Subsequently, at the second day of hearlnl:; on November 27. the Employer withdrew the allegation of exceSSlve force and agreed to compensate the gr;evor wlth interest for the 20 day suspenSlon The Employer agreed to lssue an amended letter of dlscl0line deletIng any reference to the 20 day susoenSlon The Danel was requested to retain jurlsdlctlon unti 1 the oartles formallzed the withdrawal of the first -0 3 allegation The rema1ning lssue 1S the merits of the 3 day suspens10n The relevant facts can be br1efly summarized On the morn1nq ot December 12, 1988, the grievor and Correct1onal Offlrers ROhrmospr ~nd Lanqlev were asslgned to escort an 1nmate trnm METFuRS ~ p~'trhlatrlr un1t at the Queen Street Mental Health Centre back to the Metro West Detention Centre By all accounts, the inmate was abusive, belligerent, and Dotentially dangerous A scuffle ensued between the inmate and the three correctional off1cers in which the grievor used a Docket b111 y" for purposes of control The inmate was struck w1th the bllly some six or seven times at authorized body str1ke pOints He was restrained and placed in handcuffs and leg 1 rons Durlng the struggle the inmate injured h1S forehead 1n an 1ncident unrelated to the use of the billy The inmate. once restra1ned, was returned wlthout further inc1dent to the detent10n centre All three correctlonal off1cers were ordered to prepare lnCldent reports However none of the incident reports filed rnent10ned the use of the bl 11 y Subsequently, Correctional Offlcers Rohrmoser and Langley received written reprimands on account of fa1 lure to report the full circumstances surround1ng r ~ 4 the use of force on an inmate However, the grievor received a 3 day suspension for the same offence The grievor's incldent report, filed on December 12, reads as follows At approxlmately 1200 while on escort duty I was ordered to go to Metfors to escort Inmate T back to TOR IVEST On arriving at Matfers I was informed by sta1"f there that T had made a weapon out of his t-shlrt and threatened them On going to the ce 1 1 it was notlced Inmate T had assumed a threatening stance and started shoutlng obscenlties He jumped on thp. bp.d :'1nr1 retusRd to come out As I approached the bRd tn qat h 1 m Ollt he attacked me, hittlng me in the neck and breaklnq my glasses Co Langley and Co Rohrmoser asslsted me in restraining the lnmate who fe 11 to the floor, lnJuring hlS head We managed te put the cuffs and the leglrons on him and I asked the nurse t'or a bandage to wipe the blood off Inmate T's head Myself and Co Langley were all hit during the struggle The lnJurv to Inmate T's head was wiped by the nurse, she did not make any comment Afterwards we left w1thout further lncident, escorted 11M T west, placed in segregatlon The griever is alleged to have violated the lnstltution's Standinq Order # 7 entitled Use of force against an inmate" The standlng order sets out section 7 ( 1 ) and ( 2 ) of regulat10n 649 under The Correctional Services Act and reads as fa 11 ows 7 - ( 1 } No employee sha 11 use force against an inmate unless torce 1S reau1red in order to, .- . . 5 ( a ) enforce dlsclPline and malntain order within the lnstltutlon ( b) defend the employee or another employee or inmate from assault, ( c ) control a rebelllous or disturbed inmate, or ( d ) conduct a search, but where force is used agalnst an inmate, the amount of force used shall be reasonable and not excessive having regard to the nature of the threat posed by the inmate and all other Clrcumstances of the case ( 2 ) Where an employee uses force against an inmate, the employee sha 11 f lIe a written report wlth the Superintendent lndlcatlng the nature of the threat possed by the lnmate and a 11 other circumstances of the case Ms Gai 1 Solomon Securlty Officer at the Metro West Detentlon Centre. was assiqned by the Superintendent to conduct an investlQatlon to determlne 1 t 8"ceSSlve force had been used r\.qalnst tne lnmt'ltF< 1'l.nd 1 t ;:;,; I ,lrcumstances had been accurately documented Apparently, the lnv~st'gatlon arose from concerns expressed by Metfors staff that e'(ceSSlve force had been used On December 14, 1988 Ms Solomon was adVlsed by Metfors nurse, Bonnle Masson, that a bi 1 1 y had been used Ms Solomon noted that none of the incident reports fl led had mentloned that fact Subseauently, she Questioned the grlevor and was advised that he had orlginally referred to the b 1 I I y ln his first occurrence report but because of a wrong date that report was destroyed According to Ms Solomon, the grlevor felt that he was covered bv savinq the use of security eqUlpment in the second occurrence 0 I ~ 6 reoort Ms Solomon testlfied that the grievor readily aCknowledged hlS use of the bll1y including the number of tlmes lt was used and the areas struck In cross examination, Ms Solomon acknowled!=led that when she was a shift supervisor and had become ."I.W'9.rp ot !=lrjdlt:.l0nal lnformatlon her practice was to order correctlonal ottlcers to prepare addendums to occurrence reports already filed Correctional Offlcer Douglas Langley testified, under subpoena, on behalf of the Employer He stated that ln prepan ng hl$ occurrence report he (Langley) discussed with the grievor the necessltv of including the use of the billy According to Mr Langley's eVldence, the grievor responded that it was unnecessary as lt was part of the restraint procedure In his testimony, the grlevor stated that Suoerlntendent Philllpson spoke with him on December 13, 1988 and enquired whether or not a blllv had been used on the inmate The qrleVOr readl I y admlTted that. It had been used He also testified that he had mentloned that fact ln general conversatlon wlth Shift Supervlsor Huxtable on the day of the incident At the hearing, Mr Rankin offered a number of explanations for the omission of any reference to the use of a billy in the occurrence report submitted ~ - 7 1 That it had been mentloned in the initial report which was destroyed because of inappropriate language 2. That he thought it was covered by the reference to security equipment 3 That he was pressured to complete the report and return to his regular duties 4 That he should have been asked to submit an addendum to the report filed The Employer argued that the 3 day suspension was appropn ate for the grievor's failure to report the use of force contrary to the Institution's Standing Order # 7 and the prOV1S1ons of regulation 649 Ms Thomson contended that there was iustiflcation for a more serious penalty than the written repr1mand 1mposed upon Correctional Officers Rohrmoser and Langley In support, one authority was submitted Re G.9ve.rnm.ent of Province of British Columbia and British Columbia Government Emoloyees Un10n (Correctional Services Component) (1987), 27 LAC (3d) 311 (Hopel The Un10n acknowledged that Standing Order t 7 had not been camp 11 ed wlth However, Mr Lukasiewicz argued that manaqement had been Selp.ctlve 1n lmposing discipline for the omlSSlon of the use of the bl1lv when on the grievor's statement to Ms Solomon all other circumstances of the case had not been ~ 8 included 1n the wr1tten reoort The Union contended that the oenalty was exceSSlve 1n the presence of m1tigating factors namely. the absence of report1ng directlves in the use of a bi 11 y the pract1ce of f1l1ng addendums in lieu of discipline, and the inequity of discipline imposed on the grlevor 1n the circumstances Mr Lukasiewicz referred the Board to the fOllowing authorities Re United SteelWorkers of America. Local 3257 and The Steel Equipment Co. Ltd. (1964), 14 LAC 356 ( Rev i 11 e ) . Re Oshawa Group Ltd. (Ontario Produce Co.. Oshawa Foods Dlvision) and Teamsters Union. Local 419 (1988), 33 LAC (3d) 97 (Knopf) Re Goodyear Canada Inc. and United Rubber W.QTK~Lo~a to_.n 2 (19771. 14 LAC (2d) 340 (Burkett) and Re ~1:.-.9Q.l coke 53eJ1~I.a 1 lipspj ta 1 and. Ontario Nurses' Assoclatlon (1977) 15 LAC (2d) 172 <Brandt) Under both Standing Order # 7 and s 7 ( 1 ) and ( 2 ) of regulation 649 under the Act, a correctional officer is required to file with the Superintendent a written report where he or she uses force upon an inmate A written report 1S a mandatory requirement where any force is used against an inmate, regardless of the degree of force or whether or not an injury has occurred as the result of the use of force The report must contain the nature of the threat posed by the inmate and "a 11 other c1rcumstances of the case - .. 9 The Board is satisfied that the grievor Rankin violated the provis1ons of Stand1nQ Order. 7 and regulation 649 when he omitted any reference to the use of the billy in the control of the inmate We are also sat1sfied that as a long service employee Mr Rank1n was fu 11 y aware of the Standing Order and the orooer methods and procedures to complete an occurrence report Clearly, the report should have contained a reference to the use of the pOCket billy, the number of blows inflicted and the areas of body contact Had the grievor filed a complete report, it is unlikely that the Employer would have concluded in the long run that the grievor had used excessive force Similarly, had a proper report been submitted, it is unlikely that the grievor would have faced criminal charges In that regard, the Board was advised that criminal charges against the grievor were dismissed at a preliminary hearing in provincial Court on April 5, 1989 An occurrence report constitutes a permanent Ministry record which must be 1n suff1C1ent detail to provide a true and accurate account of what actually transpired The report must be free from personal bias and must contain a clear and concise description of what happened, who was involved, when and where the incident occurred and an account of the actions taken by a correctional officer It is the integrity of the reporting .. -;,;. 10 system which provides the crucial information to enable the Ministry to objectively assess an occurrence On all the evidence adduced, we find that there was just cause for the imposition of some form of discipline The real issue, we think, is the appropriateness of the penalty imposed There are factors 1n these particular circumstances Wh1Ch arque for a reduct10n 1n the oenalty The 3 day suspension was imposed 1n coniunction wlth the 20 day suspenS10n for alleged excessive use of force As 1nd1cated previously, the 20 suspension was subsequently wlthdrawn by the Employer The remaining offence is the gr1evor's failure to report all the circumstances of the case - the ldent1cal allegation made against Messrs Rohrmoser and Langley We accept the grievor's testimony that he recogn i .zes his error and made no attempt to del1cerately conceal the use of the bi lly In that regard, he made an error in judgment The grievor has already been subjected to the stress of criminal charges and the 20 day suspenS10n result1ng from the allegation of exceSSlve use of force In Vlew of the grievor's admission to Super1ntendent Phl11ipson and Ms Solomon that he used the billy, management might have permitted the grievor to file an addendum - ~" 11 to the occurn:mce reoort. as apparently it has done with employees. including the grlevor, ln the past However, the Employer chose not to do so ln this case, presumably because of the serious allegation, then outstanding, of the excessive use of force upon an lnmate The grievor is a long service employee with seniority dating back to 1977 Further, there was no evidence introduced of a prior disciplinary record As a general proposition the Employer must establish equality of treatment in the imposition of discipline The Board adopts the rationale of Arbitrator Brandt ln Re Etoblcoke Hosoital and QJltari 0 Nurses' Association, supra, where he states at pp 180-181 There are a number of cases which have established the proposltlon that, ln matters of discipline. the employer must exhibit equality of treatment ln its imposltion of discipline While the standard of equal treatment expected is not one of perfection, it is nevertheless the case that, where there are a number of employees implicated in a particular incident, the deg,ree of discipllne imposed on each should bear some reasonable relationship to the participation of each employee 1n that incident See Re U.S.W. and Aerocide Dispensers Ltd. (1965), 16 LAC 57 ( Las kin ) . Re United Textile Workers and Long Sault Yarns (1968) , 1 9 LAC 258 (Curtis), Re U.S.W. . Local 3292 and Sumar Industries (1971), 22 LAC 353, Re Ju 1 ius Resn1 ck Canada Ltd. and Int J 1 Leathergoods & Novelty Workers. Local 9 (1973), 3 LAC (2d) 247 (Carter) It cannot be said that Correctional Officers Rohrmoser and Langley are lmpllcated to the same degree as was the grlevor J .. 12 ln the lnCldent in Question While all three failed to report, lt was the grlevor who had the prime responsibility to document in wrlting his use of force in the control of the inmate In the result, the suspension shall be reduced from 3 days to 1 day The grlevor shall be compensated for the 2 remaining days with interest In addition, all references to the 20 day suspenSlon shall be removed from the grievor's personnel f i 1 e nA TED at 8rantford Ontar 10th 1 56th day of February , 19 QO ---- ... 1 _..-- "'- - ~ ~~ - ~ ~'7 R L VERITY, Q C - Vice-Chairperson ~ 'j . 1. ~O:ON - Member ~~ - Member