HomeMy WebLinkAbout2023-00049.Patterson.23-06-15 Decision
GSB# 2023-00049
UNION# 2023-0368-0022
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Patterson) Union
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The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Brian P. Sheehan Arbitrator
FOR THE UNION Gregg Gray
Ontario Public Service Employees Union
Grievance Officers
FOR THE EMPLOYER Michael Kuk
Treasury Board Secretariat
Employee Relations Advisor
HEARING May 10, 2023
Crown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
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Decision
[1] The Employer and the Union at the Central East Correctional Centre agreed to
participate in the Expedited Mediation/Arbitration process in accordance with the
negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to
say, that the parties have agreed to a True Mediation/Arbitration process wherein
each party provides the Arbitrator with their submissions setting out the facts and
the authorities they respectively will rely upon. This decision is issued in
accordance with the Protocol and with Article 22.16 of the collective agreement,
and it is without prejudice or precedent.
[2] Stephen Patterson (the "Grievor") is a Correctional Officer 2 employed at the
Central East Correctional Centre.
[3] On February 27, 2023, the Grievor received a one-day suspension for failing to
provide sufficient detail in a Use of Force Occurrence Report he completed. In
particular, the Employer alleges that the Grievor engaged in "Code of Silence"
behaviour with respect to a use of force incident involving an inmate.
[4] The use of force incident, which took place on September 6, 2022, involved an
inmate who was running outside of his cell. A number of Correctional Officers
responded and apprehended the inmate under a set of stairs. The inmate was
taken to the ground and was non-compliant while the Officers attempted to place
him under control and apply handcuffs.
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[5] The Grievor arrived on the scene and proceeded to observe what was transpiring.
[6] Based on a video of the incident, the Employer asserted that a female Officer who
was standing and observing the scene placed her foot on the back of the inmate.
The Employer further asserted that the Grievor, given his close proximity to the
female Officer (he was standing directly behind the female Officer), would have
noticed her alleged inappropriate use of force; and yet, knowingly, failed to
reference her inappropriate behaviour in his Use of Force Occurrence Report
pertaining to the incident.
[7] While no issue whatsoever would be taken with the imposed quantum of penalty if
it were to be established that the Grievor acted in the manner alleged; it is my
determination that the Employer did not satisfy the onus of establishing it had just
cause to discipline the Grievor.
[8] To suggest that the video of the incident fails to fully capture the actions involved is
an understatement; and yet, it served as the sole basis for the Employer's decision
to issue the one-day suspension. The view of the inmate while he was on the
ground being placed under control by the Officers is entirely blocked by the set of
stairs where the incident took place. The video does show the female Officer in
question raising her right foot up and forward towards where the inmate is lying
while he is being placed under control. It also shows the Officer moving her foot
back to the ground in response to the inmate being raised from the ground and
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being pulled forward. Accordingly, the Employer’s suspicion that the female
Officer may have used inappropriate force in relation to the inmate, and that the
Grievor may have knowingly failed to report the purported inappropriate use of
force is understandable. A justified suspicion, however, is not, in itself, a sufficient
basis to establish that the Employer had just cause to take disciplinary action. The
submitted evidence must establish that the alleged misconduct, in fact, took place.
The lack of clarity associated with the video suggests that it is quite difficult to
necessarily conclude on a balance of probabilities test that the female Officer had
her foot on the inmate's back as alleged. In this regard, it is far from clear whether
the Officer’s foot was merely raised in a defensive posture—not resting on
anything at all—never mind determining that it was necessarily resting on the
inmate. It is noted that the lack of clarity associated with the video is arguably
borne out by the Employer’s own description of the event. At the Allegations
Meeting and in the February 27, 2023, Disciplinary Action letter issued to the
Grievor, it is alleged that the female Officer had placed her foot on the back of the
inmate. At the Med/Arb session, the Employer suggested, however, that the
inmate’s head was the point of contact. With respect to the original alleged point of
contact, the position of the inmate when he was brought to his feet suggests that
he was lying on the ground with the top of his head in front of the female Officer's
feet, which suggests that given the limited nature of the movement of her leg
forward, it would have been impossible for her foot to have extended over his head
and onto his back.
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[9] It is further noted that if the female Officer's foot was on the back (or the head for
that matter) of the inmate as alleged, it would be highly improbable that the
Officers on the ground restraining the inmate would not have also observed the
placement of her foot. Yet, none of these Officers were disciplined for failing to
report any alleged inappropriate conduct of the female Officer. This fact, in
combination with the lack of clarity associated with the video, suggests that the
Employer did not have just cause to discipline the Grievor.
[10] In light of the above determination, the grievance is, hereby, upheld. The one-day
suspension is rescinded, and the Grievor should be made whole with respect to
any lost wages and benefits.
Dated at Toronto, Ontario, 15th day of June 2023.
“Brian P. Sheehan”
Brian P. Sheehan, Arbitrator