HomeMy WebLinkAbout1977-0017.Lavigne.77-10-28CROWN EMPLOYEES
GRIEVANCESETTLEMENT
DQAAD
I-e.
416 964-6426 suite 405
77 BZoor Street West
TORGNTO, Cwturio (
MS.9 lM2
IN THE MATTER OF AN ARBITRATION
Under The
.
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
Between Mr. Michel Lavigne
The Ministry of Correctional
Services
Before: K. P. Swan
A. Fortier .
P. A. Sigurdson
THE GRIEVANCE SETTLEMENT BOARD
Vice-Chairman
Member
Member
(Grievor)
(Employer)
For the Grievor
M. Gagne - Staff Representative
Ontario Public Service Employees Union
For the Employer:
Hearing:
Mr. J. F. Benedict - Personnel Branch
Ministry of Correctional
Services
Scarborough, Ontario
Dalhousie Room, Holiday Inn, Ottawa, Ontario
- June 7th, 1977
2.
The grievance of Michel Lavigne, who is employed
as a Supervisor 3 in Champlain School in Alfred, Ontario is that a
suspension of ten days without pay imposed on him by letter dated
October 25, 1976 from Dr. H. C. Hutchison, Executive Director of
the Juvenile Division of the Ministry of Correctional Services, was
unjust and excessive. Mr. Lavigne does not dispute the basic facts
on which the discipline was based, and he is prepared to admit
wrongdoing; he asserts, however, that a written warning would have
been a more appropriate penalty.
There is little dispute as to the facts of this
case. The grievor was hired in September, 1971 at Alfred School,
then a privately-owned institution which was taken over by the
Ministry in January. Prior to joining the school in 1974, he had
been a teacher elsewhere. On June 1, 1974 he was promoted to House-
master (Supervisor of Juveniles 3). The present grievance a,rises.out
of certain events which took place on September 15, 1976 when, in
his capacity as Housemaster, he was in charge of the juvenile wards
in a "House" occupied entirely by females, adolescent girls who have
been made wards of the Ministry by. reason of involvement in offences
against the law. The presence of girls at Champlain School is a
recent phenomenon, the school having been limited to boys until March,
1976; it is fair to say that the special problems of handling female
wards were of considerable concern to all of the employees, including
the Superintendent, who gave evidence before the Board. The grievor
is responsible for the work of five other supervisors, who staff the
House on a shiftwork basis. On the morning in question, he was alone
with some 15 wards, although there normally would have been two
supervisors on the day shift. He had reported to work at 6:00 a.m.,
and the girls had been awakened and had eaten breakfast. Classes
begin at 9:OO a.m., and about five minutes before then, the grievor
had prepared to take the wards to the classroom area. Because of
the custodial nature of the school, it is usual for wards
to move from place to place only under the constant supervision
of a staff member. At this point one of the wards, whom we shall
refer to as L.G., began to argue about whether she should attend
classes or not.
L.G. is a 16 year old girl, of medium height but
strongly built, whom the Superintendent described as a "hard case."
She had arrived at Champlain School on July 26, 1976 after other
placements, and had not been a model ward. The evidence reveals
that she had been placed once in maximum security, that she was a
serious "absence without leave" risk, and that she had often
threatened and, on at least one occasion, executed violence to staff'
members.
There had been some discussion at the School's
Program Office about the possibility that she might attend the local
community school and, on the day in question, she insisted on going
to the Progam Office to enquire about this possibility. The grievor
had 14 other wards to supervise, and he was required to take them
past the Program Office and upstairs to the classroom area, and to
report their arrival. He thus persuaded L.G. to come along to the
classroom area. As soon as he opened the door to the House, however,
she ran past him and on to the Program Office. At this point she
encountered Brother Philippe Faucher, the Superintendent, whom she
told that she was to see the people in the Program Office.
The grievor brought the rest of his wards along the
4.
hallway, and sent them up the stairs to the classroom area. He
stopped to deal with L.G. at that point, and told her she should
accompany him up the stairs. To emphasize the order, he took her
by the arm. She resisted, and threw herself to the floor. He
raised her to her feet, and held one arm behind her back and grasped
the collar of her blouse to control her. Under this restraint,
she went up the stairs with him.
On the higher floor, the corridor was filled with perhaps
50 wards. At this point, L.G. agreed to co-operate and asked the
grievor to let her go; he did so. Although the evidence is somewhat
confused on this issue, she apparently threw hersel-f to the floor
again at this point. When the grievor attempted to get her to her
feet, she struck him in the face with her fist. lie pulled her up,
held her as before, and pushed her along the corridor until he was
assisted by another Supervisor to carry her into the living area at
the end of the corridor. There is evidence that the Superintendent
told the grievor to stop, but no evidence that the grievor heard him.
In the course of the struggle, the grievor pulled a
handful of hair from L.G.'s head. Nevertheless, none of the witnesses
saw the grievor deliberately pull her hair, and the assumption of all
of them is that he had caught her hair in'grasping her collar and it
had pulled loose during the struggle.
There are certain other matters which add context to
the incident. As we have noted above, there was considerable apprehen-
sion among the staff about the presence of female wards in the school.
** ..a.
5.
Local 401 of the Union had asked for training on approoriate
techniques for handling female wards, and had also asked that every
shift be covered by two employees; there had been no direct manage-
ment response to this request. The grievor, who had been placed in
charge of the girls' House, had specifically asked for special
training, but his indoctrination had been limited to a week spent
as an observer in a girls' school.
All of the witnesses who were asked, agreed that the use
of force is occasionally necessary to their jobs, and is not uncommon.
Specifically, restraint of the wards to prevent escape or improper
behaviour is required from time to time. Nevertheless, no training
in restraint techniques has ever been.given. 'On the other hand, the
employer has emphatically, and quite justifiably, insisted that
violence or corporal punishment is improper, and will be met with
disciplinary action, including immediate discharge. To this effect,
the grievor signed, on September 14, 1971 (soon after hiring) the
following document:
A QVI DE DROIT:-
Les r\eglements du Minis&e des Services
de Correction et cons&emnent de l'&ole St. Joseph
dIAlfred d&fendent l'emploi des punitions corporelles
dans notre travail de rehabilitation aupr& des
enfants. I1 est done def&du de les frapper, de les
contraindre soit 1 se tenir debout pendant de longues
pe'riodes de temps, soit 2 se lever avant les autres
ou h porter un costume qui les diffe'rencie de leurs
compagnons.
Egalement, il est absolument defendu de se
pre&ter au travail apr& avoir consomme'des boissons
alcooliques.
. A&S enque"te pre>lable, take de'rogation
a cesfir&lements e/tablis et connus de chacun,
entralnera n~cessairement une mise 2 pied imme/diate.
6.
Par la pr&.ente, je certifie con&&e et
comprendre parfaitment ces reqlements et je promets
d'y conformer en conduite.
The Ministry's position in respect of this matter is
set out in the suspension letter of October 25, 1376:
On September 15, 1976, a hearing was held into the
allegation that you engaged in unsatisfactory
supervisory behaviour by using excessive physical
force in your handling of ward IL.G.1. I have
reviewed the report of the hearing as submitted
by Mrs. B.A. Field, Executive Assistant to the
Regional Administrator, and I em satisfied that
the above allegation has been adequately sub-
stantiated. It is my decision, therefore, to
remove you from duty for a period of ten (10)
days, without pay. This suspension will be at the
convenience of your Superintendent. Also, your
Attendance Credit entitlement will be affected,
in accordance with the Employee Benefits Agreement.
It was suggested by the evidence that this serious
occuzzence was, for you, a single incident in an
otherwise good service record. It is because of
this that a more severe penalty was not imposed.
You are, however, a Supervisor and as such, are
expected to act as a model for other staff. In
addition, you indicated, by your signing, your
awareness of a Ministry policy prohibiting the
use of corporal punishment as a means of disciplin-
ing the controlling wards, and that failure to
abide by this regulation could result in dismissal.
You are cautioned that another incident of this
nature would most certainly result in a more
severe penalty, not excluding your dismissal.
In argument, Mr. Benedict took the position that the
Ministry is much concerned that no excessive or unnecessary force is
ever used in controlling wards, and that the conduct of the grievor
merited punishment. In meting out that punishment, the Ministry had
taken into account the grievor's previous good record. He referred to
a previous decision of the Public Service Grievance Board, me Kearney
and Department of Correctional Services; 497/69 and to a decision of
.m > ri-
7.
this Board, me Hopcraft, 4/75, in \!hich the Board spoke of the
uncompromising vigilance required of ministries of the government
responsible for custodial care. *
We agree, in principle, with the position taken by
the Ninistry, and we do not wish to detract in shy way from the
validity of the basic assertion that juvenile wards subjected to
custodial supervision ought to be protected from violence in any
form;
After careful reflection, however, and with the greatest
respect, we are unable to conclude that the Ministry has correctly
characterized the conduct of the grievor on the.occasion in question.
The letter of suspension quoted above calls the offence "using
excessive physical force", but it also refers to the Ministry policy,
also quoted above, prohibiting the use of corporal punishment. In
our view, these two offences are not of precisely the same order,
but that is immaterial in this case. We are unable to see any evidence
in the conduct of the grievor of any conscious or deliberate commission
of either of these offences. At most, the grievor is guilty of an
error of judgement in attemp‘ting to restrain a strong, violent ward
irlithout assistance; and that is precisely the offence to which he
admits.
The evidence is clear that the use of force to control
and restrain is a part of the Supervisor's job; it is the use of
force to punish or brutalize which is proscribed. Clearly, had the
ward L.G. obeyed the grievor's instructions and submitted to his
moderate restraint, no disciplinary action would ever have been
contemplated. Instead, she resisted and resisted violently, and it
is now impossible to tell whether the loss of her hair was due to
the grievor's restraint or her resistance.
The evidence is clear that the grievor has only ever
used force on two occasions in six years; that he was especially
selected for the female House because of his special qualities; that
he and many other employees were nervous and apprehensive about the
problems of handling female wards; that his only intention was to
restrain and contain L.G.'s tantrum, and that he did not respond
with violence even to the blow she struck him in the face. The
evidence is also clear that L.G. was a difficult ward; that she
seemed almost to enjoy violent confrontation; and that to leave her
alone and unsupervised was to run a serious risk that she might
abscond.
We consider that it is appropriate to characterize the
grievor's conduct as a misjudgement; he ought to have used other
techniques for containing the ward's behaviour. Having once mis-
judged the situation, however, he was trapped into an escalating
situation, and it is difficult to assign to him alone the blame for
all of the consequence of that sequence of events. The views of
this Board on the exercise under s.18(3) of the Crown Employees
Collective Bargaining Act of its powers to mitigate a penalty imposed
by the Employer have been set out in me Maw, l/75, and need not be
repeated here. In all the circumstances of this case, we find that
the penalty imposed here was too severe. The grievor had freely
admitted to an offence which we find to be a fa'ir and accurate
9.
characterization of his conduct, and we consider that his forthrightness,
his very good employment record and the nature of that offence deserve
a penalty which will recognize the problem without imposing an undue
financial burden on the grievor.
In the result, we award that the penalty should be reduced
to a formal written warning, and that the grievor should be compen-
sated for all salary and benefits lost during the period of the
suspension imposed. There is no need to actually issue such a warning;
this award may serve for that purpose. The grievance is thus allowed.
Dated at Toronto this 28th day of October, 1977.
K. P. Swan
Vice-Chairman ‘\
A. Fortier
Member
I concur
P. A. Sigurdson
Member