HomeMy WebLinkAbout1979-0090.Bickerstaff.80-05-29SUPPLEMENTARY AWARD
Mr. George Bickerstaff
Mr. Harold Turner (alternative)
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The Crown in Right of Ontario
The Ministry of Government Services
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, This is an award supplementary to one issued February 12, 1980
in which the Board held that the grievors were entitled to termination
pay calculated according to Article 14.3 of the Benefits Agreement
because they had been appointed to the civil service after January
lst, 1970. We retained jurisdiction to detennine,any problems of
compensation arising out of the implementation of the award and
were subsequently informed that difficulties had arisen. On February
29, 1980, the parties were asked to submit written argument on this
issue, which they did. The union also requested further oral argument
in a letter dated March 25, 1980 to which the Ministry objected.
The Board does not feel that further oral argument is needed
on this issue. The union, in a letter dated March 14, 1980, has
stated its claim, requesting termination pay calculated from the date
of appointment to the unclassified service (1957 for Mr. Turner and
1958 for Mr. Bickerstaff).. The Ministry has filed a detailed submis-
sion, dated March 19, 1980, which canvassed the history of the termina-
tion payment practices in the Ontario Public Service since 1969, tracing
their history through various interest arbitration awards, regulations,
and government directives. The Ministry has asked that the grievors
be denied any severance pay for a period prior to January lst, 1970.
The information filed by the Ministry is interesting and informa-
tive, and it might well have facilitated the Board's earlier deliberation
on the merits of the case. However, it must be regarded as largely
irrelevant for purposes of the present dispute, which is one solely over
compensation. Many of the arguments raised are, in effect, an appeal
to change our earlier decision. We have no jurisdiction to do so,
being fun&us officio with regard to the merits of the case, nor do we
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have reason to reconsider the validity of the decision given earlier.
We can, however, discuss the problem of proper compensation.
In doing so, it may be appropriate to mention some particular difficu-
lties with Article 14 of the Benefits Agreement which the present
grievances and the Ministry's written submission bring to light.
That particular article is one which, in light of the result in these
grievances, might well be considered for redrafting. In its present
state, the article is capable of interpretations which may well lead
.to inequities in the termination payments available to similarly
situated civil servants and to interference with other employees'
expectations as to the sum to which they feel that they are entitled.
First, with regard to compensation, we would repeat that the
grievors are entitled to a termination payment calculated under
Article 14.3 of the Agreement. The union has argued that they are
entitled to credit for one week's salary for each year of "continuous
service," dating back to 1957 and 1958. The employer has pointed out
that the grievances filed by the employees request relief only back to
the date of appointment, which here is 1972; and has argued that the
employees can be awarded no greater relief than that sought in these
grievances.
This Board does not have inherent jurisdiction to do what it feels
is just in the circumstances. It is limited to deciding the dispute
before it and awarding the relief sought in the particular case, and it
cannot raise matters for resolution which have not been presented by
the parties. However, this limited jurisdiction does not require the
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Board to act in an unduly legalistic manner. While it cannot decide
a dispute that is not before it (for example, transforming a dispute
over hours of work into a classification grievance), the Board need
not be and should not'be overly technical in its "pleadings'!: A .
grievance should be in sufficient detail to give notice as to the
nature of the dispute to the employer and to the Board. It need not
in all cases specify exact particulars of the dispute and the precise
articles relied upon, if the employer is aware of the facts of the
dispute.
In this case, the grievors have claimed compensation under
Article 14.3 only from the date of appointment in 1972. It may be
that they could have claimed compensation for service prior to that
date. The union now so claims. Should the grievors be allowed to
alter the compensation claim dated from 1972 which was raised in the
grievances (and reiterated in oral argument)? A technical response . .
would be that the grievors can not amend the grievances now, and that
the Board should award no more than what is claimed. In the circumstances
of these cases, that~technical response seems also to be the most sensible
one. The grievors have asked for no more than severance pay from 1972, and
in light of the problems inherent in the wording of Article 14 which will
be mentioned below, that may be the fairest resolution of this dispute.
Therefore, in this case, we would accept the employer's submission and
hold that the termination payment is to be calculated, as requested,
from April 1, 1972.
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That decision leaves open the issue whether, in another grievance,
a claim under Article 14.3 which is framed in different words may seek
a calculation which takes pre - 1972 service into account. If an
inclusive calculation would be the result of such a grievance, because
of the definition of "continuous service" in Article 14.3, the
Board is concerned that the parties will be faced directly with a
situation in which the language of Article 14 is.found to be invoked
in a manner contrary to the spirit of the article. It would appear,
according to the employer, that the present language, as interpreted,
could lead to inequities in application, as'many employees previously
in the unclassified service and appointed to the classified service
after 1970 may be precluded from taking credit for accumulated
attendance credits which they banked in their period of unclassified
service. The parties might well be concerned as to whether the language
of Article 14 is sufficiently refined to take into account the many
different categories of employees who will seek termination payments.
For example, the categories include groups like the grievors who were
paid premium'rates for several years while unclassified employees (and,
were therefore, unable to accumulate attendance credits), as well as
other groups of employees in the unclassified service who were paid at
lower rates and allowed to claim attendance credits, which they now hope
to use in the calculation of termination payments.
The problem in drafting language to take into account the
inter-relationships of classified and unclassified service and pre-bargaining
unit and bargaining unit status are many and complex. The Board has
neither the information nor, more importantly, the jurisdiction to refine
the language for the parties. We can only point to the potential problems
which may be found in the present language and hope that the parties can
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ensure that their language captures the spirt of what they hoped to
achieve in guaranteeing termination payments to employees.
Therefore, the grievors in this case are entitlted to termina-
tion payment under Article 14.3 with credit for service subsequent
to their date of appointment to the classified service in April, 1972.
Should the parties have any further difficulties in calculating
compensation, the Board will retain jurisdiction to deal with such
problems.
Dated at Toronto, Ontario,
this 16th day of April,1980
ak2f&AA
Professor Katherine Swinton - Vice Chairman
I concur
Gerald Griffin - Member
I concur
Henry Weisbach - Member
': IN THE MATTER OF AN ARBITRATION
Under The
.,. ,, '.Y ~.$C@JWN EMPLOYE~S.'COLLECTIVE EARGAiN$G~:ACT : ~:
;yt; ,,!:::,:;i;.l;-.; .' : .: ,h.'.~:,. ,. .~.;;:~,':r-,~,' -;:.:,,. : Before I,
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.+?..:THE GRIEVANCE SETTLEMENT BOARO
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Between:. ,." '., :'Mr. David Travers
and
+,The Crown in Right of Ontario
'.>Ministry of Correctional Services ,,;; 1
Before: ;-Professor Katherine Swinton Vice-Chairman
'..I@-.: E. R: O'Kelly Member.
.~., ~. +Jr.; "an Anders'on Member'
i'r:s;;,; .:; : 1 g,,,: ,Y
For the.Grievor:,Mrs;: Lillian Stevens '. ? '/
','Ontario Public Service Employees Union 1'
,7j’:1901’~Yonge St
':,.Toronto, Ontario
For the EmployeriaMr. J. Benedict
., ;$anager, Staff.Rel&ions and Compensation.
: .;$Human:Resources IManagement,:., :
:,~Ministry .of Correctional Services' ' '?'
:%Ol'Eglinton Ave. E.
Scarborough; Ontario
Hearings: ,:February 6th,.l980
'February. 15th; 1980
.: ~February 16th, 1980
:$!a& 12th,’ 1980
March Xth, 1980
March 29th, 1980
'Suite 2100, 180 Dundas St. II., Toronto
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This case involves three grievances by the grievor, David Travers,
against the Ministry of Correctional Services. They include a written
reprimand for horseplay (dated September 19, 1978 - Ex.6); a two-day
suspension for tearing up an inmate request form (September 6, 1978 -
Ex. 4); and discharge for use of excessive force against an inmate
(March 5 1979 - Ex. 5). At the request of the union, the evidence with
regard to these grievances was presented in the order set out above, as
the union's case turned in part on allegations of harassment, which, it was
argued, required presentation of each grievance separately.
This award will also deal with the three grievances separately.
Extensive evidence was presented in this case over several days of hearings.
In several key areas, that evidence is contradictory and requires the Board to make
find~ings'of facts-based on assessments of the credibility of the witnesses. We will
first set out the chronology of events in the case, and the conflicting stories,
before determining the facts influencing our decision in the case.
David Travers was hired by the Ministry of Correctional Services on
April 18, 1977 and first worked as a Correctional Officer at the Don Jail.
On September 26, 1977, he transferred to the Niagara Detention Centre in
Thorold, and he was employed there until his discharge on March 5, 1979.
At the time of his discharge, he was classified as a Correctional Officer 2.
The Horseplay Incident
The first incident,involving horseplay, resulted in a written reprimand.
It occurred on September 5, 1978 durihg the afternoon shift (3:OO p.m. to
11:OO p.m.). The griever was assigned to the maximum security area of the
institution, along with Mrs. Anne Wilson and Mr. Steven Long. Long, who was a
probationary employee and had been at the Centre eight months, was assigned
to the "Maximum Module". This is a windowed office from which the officer
can watch all inmate and guard movement in four wings. The officer controls
the alan panel, incoming telephone calls, and issuance of keys for corridors
and Cells. Wilson Was the Maximum officer and Travers the Segr,egation officer.
It was Long who complained about Travers' conduct during that shift.
One incident involved a walkie/talkie. When Long returned frcm supper
break at about 6:00 p.m. one of two walkie/talkies in the module was
missing. Travers, who bad been relieving Long, denied knowledge of its
whereabouts. Walkie/talkies were then used to supervise inmates during
recreation periods and by some guards on rounds. They were also a link
to the Visiting Officer at the front of the building.
Long subsequently heard a low grumbling noise on the remaining walkie/
talkie, which he had switched on in order to be in contact with the
Visiting Officer.~ The Visiting Officer complained to Long, who looked
outside the module and saw Travers with the walkie/talkie. He asked for
it, and it was returned.
The second incident that night involved the "green phone" on the
side of the module, by which guards outside the module contact the officer
inside. Mrs. Wilson was trying to speak with ]long, but he could hear
nothing over the'telephone. He then saw Travers hold up the microphone from
the telephone, which, when replaced, allowed communication to occur.
Finally, Long observed Travers by the desk outside the module, crouching
dcwn and whistling as if he had a dog. This lasted a few minutes.
Long testified that he was increasingly upset with Travers, for he
disliked the module assignment. He complained to Corporal James .Miller
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'about the incident that night, although asked him not to speak to Travers.
He also talked to Travers himself,on the advice of other officers. Travers
apologized, and all seemed to be worked out in Long's estimation.
Two days later, Long was called into the office of Assistant
Superintendent Cameron and asked to write a report on the incident, which
he did. Subsequently, Travers was reprimanded for his conduct.
There is really no dispute as to what occurred in this incident.
Rather, the grievor protests the penalty as excessive and discriminatory.
The validity of these protests will be discussed later in the award.
The Request Form Incident
This incident occurred on August 18, 1978 and involved destruction of
an inmate request form by the grievor. Inmate requests to contact people
outside the institution [family, a lawyer, a justice of the peace) are
normally taken each day before 9:00 a.m. The request is written up on a
printed form by a correctional officer, signed by the inmate, and taken
to the Sergeant's.Office. There, the forms are vetted (for example, for
repetitive requests),initialled,and sent to another office, where the
calls are made. ,On completion of the'call, the reply is noted and the
request is returned to the inmate area for signing by the inmate. It
is then filed in the inmate's file.
Extensive discussion occurred .in the hearing with regard to the
proper procedure for taking requests. We were presented with a statement.
(Ex.13) from the Centre's Manual of Procedures which purported to cover
the procedure for taking requests: Among the steps for taking requests
are found the following:
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(41 These forms are-numbered, therefore, all must be accounted
for including any that become damaged or spoiled.
(5) Part 1 of every form must be filed on completion. The
c&rent method for completing the form by staff is as
follo"s:
(a) On receipt of an inmate's request, the staff member
will complete the form down to and including "type
of request". The two parts will then be separated,
with past 2 being sent to the Control point for
filing in its numerical order.
In evidence, it became clear that the procedures followed at
'Niagara Detention Centre did not comport with rules (4) and (5) above.
All of the officers testified that the numbering system was meaningless,
and that they took no account of it. Several mentioned that they had
destroyed forms, for example, when an inmate changed his mind about making
a call during the time that the officer was completing the form. Furthermore,
Part 2 of the request form had never been used, albeit Rule 5 speaks
of filing Part 2. The practice had'always been to destroy Part 2, a
carbon copy.
In light of this evidence, the breach of the rules in Ex. 13 cannot
Er se be grounds for discipline. Nevertheless, the destruction of a
request form may or may not be grounds for disciplinary action, depending
on the circumstances in which this occurs..
The grievor is alleged to have ripped up a special request form from
inmate Larry Langhor to see a Justice of the Peace. The special request
form had been taken outside the regular request period on the orders of
Assistant Superintendent Cameron. He had seen Langhor. at about lo:30
a.m. on August 18. Langhor,wished to see a Justice of the Peace to
lay a charge of assault against the arresting police officers. Cameron
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ordered Correctional Officer Kevin King, who was on duty, to fill out
the special request form. King did so, but failed to file the request
at that time because, he testified, he could not leave the area. In a
report to Cameron dated August 28 (Ex. 14), he states that he turned it
in at the end of his shift; 'which.would have been 3:00 p.m. This cannot
be true, however, for the request form was discovered on the desk in the
Minimum area by the grievor after he came on duty at 3:00 p.m. It
would appear that King's report is false, perhaps in orderto protect
himself from disciplinary action. In evidence he, admitted that he was not
sure that he took the form to the office. No disciplinary action was
taken against him, however, a fact which will be discussed later in this
award.
The sequence of events with regard to the Special Request form
is not clear. The grievor's evidence conflicts with that of Sergeant
Charette, and both will be set out. Travers said that he found the
request at about 3:15 p.m. He mentioned the requestand its contents
to Charette during a break,~at about 7:00 p.m;, and Charette then told
him to rip it up. He returned to the Minimum area, called inmate Langhor
out of his dormitory at about 8:30 p.m., and told him that the request
could not be made then, but must wait until the next day. Travers then
ripped up the request in front of the inmate. There is evidence from
Correctional Officer Straitenfeld that the grievor was smiling or
laughing at the time. Langhor became quite upsetand demanded to see
the Sergeant and Charette was called. After talking to Langhor, he
ordered Travers to complete another request form, and this was done.
The divergence in testimony is with regard,to the order to rip up .,
the request form. Charette denies ever giving such order. He testified
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that after consulting inmate Langhor he asked Travers why the request form
had been destroyed. Travers supposedly replied that the request was out of
time and thatkangbor, being a chronic complainer, could have no valid
reason for making such a request. Charette counselled Travers against
ripping up such forms again.
Ten days later (August 28), after Langhor. complained to Assistant
Superintendent Cameron, Charette wrote a report on the incident.
Discipline occurred September 5, 1978.
The Assault Incident
The third grievance, leading to discharge, occurred on February 28,
1979 and involved inmate,John Colquhoun: Travers was working the
night shift (11:OO p.m. to 7:00 a.m.) in the Minimum area. At about
6:25 a.m. he was making a second:Wakeup call for inmates when Colquhoun
swore at him, calling him a "fucking goof." Travers called Co~lquhoun out
of ~the dormitory in which this occurred. There was continued swearing, so
Travers instructed Colquhoun to sit on a bench in, the Minimum area hallway
and Sergeant Charette was called. It was necessary to do so, if the
inmate was to be removed from the area, as only the Sergeant could order
the inmate removed to the segregation area.
At this point, the evidence diverges. Travers said that he was trying
to counsel Colquhoun, who was verbally abusive. Apparently, the inmate
calmed down briefly while Charette was present.
Charette testified that when he arrived, the inmate was calm, but Travers
was "quite upset". Charette said that he started to question Colquhoun,
and Travers constantly interrupted, saying to Colquhoun, "Tell the
Sergeant why you called.me a fucking goof." Colquhoun became angry and
said that'"if you insist I called you a fucking goof, then you are a
fucking goof." Charette then intervened and told Colquhoun that he would
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be placed in segregation pending an invest,igation.
Travers denied that he was upset at this time orthat he interrupted
Charette's interview with Colquhoun.
Charette and Travers then proceeded to escort Colquhoun to segregation.
The walk to that area took about one and a half to three minutes depending
on Travers' or Charette's evidence. During the walk; Charette said
that all seemed calm. Officer Albert Sohuit met the group at Door 18,
which leads to a stairway to the second floor segregation area. Since all
seemed calm, Charette left them at the door and returned to his office for
shift change. It is customary for a sergeant to accompany the inmate to
segregation, although this was not rule at the time of this incident.
Travers' story of the procession to Doorway 18 differs from Charette's.
He said that Colquhoun was upset, Travers feared that the inmate might
strike him, for Colquhoun kept raising and lowering his fists aIT the
way down the .hall.
Schuit led the way up the stairs to segregation with Colquhoun and
,Travers following in single file, each a few steps behind. Again, the
stories of what occurred are different. Colquhoun was heard to be muttering
something as he went up the stairs. Schuit could not clearly hear what
was said. Travers said that there were threats and obscenities. At one
point, Travers called out to ask Schuit.:,if he could hear the comments.
Schuit said no and that they should just get the inmate into the cell.
At the top of the stairs is a landing about nine feet in length, a
doorway into the segregation area, and two cells. Schuit proceeded into the
segregation area and proceeded to open a cell. Colquhoun was In the
doorway to the area, which~ Sch! uit said was about 6 to 8 feet away. The
area is only 7l4" wide (Ex.7) and the door three feet wide so the distance
must have been no more than about four feet. Travers was still on the
landing outside the door. Schyiitt, said that Colquhoun said to Travers, "I
will get you", raised his fists and stepped back. Travers "lunged"
through the doorway and grabded Colquhoun, placing him in a headlock and
punching him four to five times in the head and face area. He then threw
the inmate to the floor and kicked him with full kicks three to four times
in the rib and kidney area on his side and pulled his hair two to three
times. Schuit did not intervene. He told Travers to stop several times and
then helped Travers drag,the inmate into the cell. Travers then began to
bang the inmate's head on the edge of a steel cot. SchUit told him to stop
and then ran to a green phone and sounded an emergency (Code 1). Help
came quickly and Travers stopped the assault as feet were heard on the stairs.
When Charette, Miller and Long arrived, the inmate was pinned against the
bed. Charette told Travers to release him and told Colquhoun to sit on the
bed. The door was then locked and Sch.Uit left the area.
Travers' story is quite different. He said that he was still on the .
'top step when Colquhoun raised his right fist and said "I'll get you"
Travers said that he.believed the inmate was very angry and Schuit's back
was turned at the time. In self-defence, he grabbed Colquhoun and started
to struggle. He said that he scuffled with him and that the inmate was
struggling hard. He called on Schuit for help, who gave a few kicks.
When he got control of Colquhoun, he dragged him.t.0 the cell and held him
until help arrived. Then he released Colquhoun and went to the Programme
Office with Sergeant Charette,.
Colquhoun was not strip-searched, as is customary when an inmate is
placed in segregation, nor was he taken to see a nurse or doctor at that
time. When the new shift came on duty, Correctional Officer Barry McDonnell
checked Colquhoun at about 6:50a.m. The inmate was lying ,on the bed, and
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nothing seemed to be wrong. ,He was served breakfast and it was not until
about 9:00 a.m. that Colquhwn ,asked to see the Superintendent to complain
about Travers. He first met with Sergeant Miller and McDonnell and
explained his complaint about being assaulted by Travers. No complaint
about injury was made.
Shortly thereafter he was examined by Dr. Preston Zuliani, a doctor
who'visits the Centre twice a week. Zuliani .testified that he found
several very trivial bruises (a 1 x 1 centimeter bruise near the left
eye; a small bruise over the left nipple, a small abrasion on the chin
and two mild tender spots on the scalp). There was no tenderness elsewhere
on the body. Zuliani testified that if-someone had been kicked several
times, he would expect to find bruises, abrasions or tenderness, and if
his head had been beaten on a steel bed, he would expect to find bruises
at least. There was evidences of neither and in his opinion, there was no physical
evidence of excessive force.
The grievor was subsequently discharged on March 5, 1979. He was
later convicted of assault in Provincial Court on charges pressed by.
Colquhoun and given a conditional discharge in July, 1979. He did not
appeal, according to his testimony, because of financial problems.
Decision
There are three grievances to be discussed. .The~ first is the horseplay
incident. There is no conflict in the evidence as to what occurred.
Rather, it is the significance of that conduct which is the subject of
debate. The union argues that the griever's conduct was blameless - just
an example of the joking which often occurs in the institution, particularly
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on night shifts, to reduce tension and to keep up morale. Furthermore,
it was suggested,penalization of~the grievor~would be.discriminatory
here, as other officers had been involved in comparable incidents
(e.g. making noises over the intercoms; dressing up in riot equipment
for picture sessions) and they had not been disciplined. .According
to the principle established in Re united !rextile workers of'America
and Long Sault Yarns Ltd. (1968). 19 L.A.C. 257 (Curtis), '-~
disciplinary action which is,jmposed ln~adiscriminatory fashion. &discipline
without just cause.
After considering the evidence, we cannot agree that the reprimand
for the horseplay incidents was unjustified. While other guards may have
been engaged in joking behaviour, and ,while there were several examples in
evidence, these.other incidents are not of the same significance as
that which occurred in thi; case. The grievor intentionally interfered
with two of the comnunication systems in the Maximum area. While there were
other cotraunication systems available if one should fail (e.g. a panic
button, intercom and telephone), this does not excuse his conduct. It was
irresponsible and thoughtless conduct, and the employer can well be concerned
about the tampering with equipment. The~grievor's conduct was' particularly
inappropriate .in light of the inexperience of his co-workers Wilson and Long, and
in light of the fact that he had voiced concerns about possible trouble with
inmates in the area to Corporal Miller earlier,in that shift. Overall,
he showed a lack of judgement, and the penalty assigned for the conduct
was the minimum available, and justified in the circumstances.
The second incident involves the request form, and here we have two
divergent stories. .Travers says that he was ordered to destroy the form;
Charette denies giving such order. The decision as to whether'the act
of ripping up the forin justified disciplinary action turns on a finding
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of credibility between the two witnesses. If the grievor was not ordered
to destroy the form, then the conduct must be regarded as just cause for
disciplinary action. Completed request forms are important documents,
for they provide the inmate with the major'method by which he can
contact people outside the institution.. The fate of an inmate complaint
to aJustice of the Peace regarding police conduct is not to be decided
by a correctional officer's assessment of the validity of the complaint.
That is for the-Justice of the Paace to decide. All of the correctional
officers who. gH‘ve~evidence with>regard to request forms agreed that
completed forms should be forwarded to the Sergeant's Office for action.
Even though several of these officers testified that they had ripped
up request forms and not beendisciplined for doing so, this cannot alter
the gravity of the alleged conduct in this case. It is a very different
matter to rip up a form because an inmate has changed his mind about the
request or because a duplicate request has been madeThan to destroy a
sincere request, which the inmate wishes to press. Intentional destruction of
such~ a request form cannot be excused.
Therefore, it must be decided whether Charette gave the order to
destroy the form. Immediately, one must ask why he would give such an
order. It was suggested by the union that Charette was trying to cover
up for himself by denying the order, yet it must be asked why an experienced
supervisory officer would give such an order in the first place.
It was suggested that certain members of staff, includingi:Charette,
were out to "get" the griever. It should perhaps be mentioned at this
point that Charette was also involved in the third incident involving
the assault, and the union argued that the three grievances showed a
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pattern ,of'harassment. The union also squght to show a lack of morale and a
cleavage between different groups among the staff of the Niagara Detention
Centre:
An examination of the conflicting evidence in the third incident,
which will be discussed.below,‘has assisted in the disposition of the second
grievance and led the Board to accept Charette's evidence over Travers' story
in this particular incident. The Sergeant does not appear to have any
reason to lie here. Travers, in contrast, has experienced difficulties with
inmates and did find Langhor a complainer.
That leaves us with the question of the appropriate penalty for
the destruction of,the request. awhile we are reluctant to interfere with
management's assessment of an appropriate penalty, ~there are two reasons to
be concerned about the penalty here. First, it.must be asked why Travers
was disciplined so severely (two days suspension) when the original officer
who took the special request on the Assistant Superintendent's orders and
then failed to process it, was not disciplined. Surely, his conduct was
equally serious. Secondly, why was there a delay in taking disciplinary
action? Charette said that he felt the whole incident was~over with his
counselling Travers. Then ten days later,on August 28, he was asked to
write a report, as was King. Eight days after that a suspension.occurred.
It was suggested that the Ombudsman's involvement triggered the action.
That was not proven, but the delay and the selective action do cause concern,
and as a result, the two-day suspension seems excessive in the circumstances.
Pursuant to s.la(3) of The Crown Einployees Collective Bargaining Act, S.O. 1972,
c.67, as amended, we would substitute a written warning for the suspension. The
grievor should be reimbursed for~the two days without pay.
Finally, we turn to the third incident, the assault. In'this incident,
too, we have very contradictory evidence, some involving Charette and Travers
and some involving Schuit and Travers. The problems start with the interview
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between Charette, Travers and Colquhoun in the Minimum hallway. Travers claimed
to be calm; Clmrette claimed that he was upset and Interrupting. It is
difficult to know which story to believe, yet it is important to do so, in order
to assess the significance of subsequent events. It might be asked why Colquhoun
was sent to segregation if he was calm, as Charette stated, and Travers upset.
The explanation may lie in the need to cool things off and the best way
to do this would be to separate Colquhoun .and Travers, who both appear to have
been somewhat short-fused that morning.. If ~this is the explanation, however,
one must then question Charette's wisdom in allowing Travers to escort the
inmate to segregation, both when Charette was present and when he left Travers
with Schuit. Charette said that both Travers and Colquhoun were calm at the
Doorway to the segregation area when Schuit met them. Travers again contradicts
this evidence, and says that Colquhoun was upset.
We have concluded that things were indeed calm at that moment, for it
would be extremely unlikely that an experienced officer with supervisory
obligations, such as Charette, would leave the two alone if Colquhoun was still
visibly upset. Therefore, we reject Travers' account of this part of the
occurrence, which must be regarded, understandably, as somewhat self-serving.
Nevertheless, even if things appeared.under control, it is most
disturbing that Charette left the scene at this moment. Several officers
stated that it is customary for the sergeant to accompany an inmate and the
other officer or officers to segregation. He.can provide a steadying influence,
plus act as a witness if further difficulties occur. At present, there is a
rule that the sergeant accompany the inmate for these reasons. Therefore, the
wisdom of Charette's decision to leave at the doorway leading up to the segregation
area must be questioned. This is especially true in this fact situation, where
one of the officers involved in the original incident leading to the decision
to send the inmate to segregation is an escorting officer. Charette testified
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that the grievor had been very upset only a very few minutes earlier. Why, then,
would he allow the grievor to stay with the inmate? His decision to do so must
be regarded as an error in judgement, influenced perhaps by his desire to complete
the shift change and leave work. However, to accompany the group upstairs would
have taken approximately ten more minutes, and subsequent incidents and
(this arbitration) might have been avoided. This error in judgment does not
excuse the subsequent conduct. However, it is relevant to an assessment of the
penalty in the case.
Returning to the assault evidence, we have,conflicting evidence, again,
about what occurred on' the second floor. Schuit's evidence would lead one to
believe that there was a violent and brutal attack on Colquhoun, with many
blows and kicks. Travers, on the other hand, would have us~believe that he
feared for his safety and acted in self-defence and at% apparently excessive
force could be explained by the failure of Schuit to assist in subduing the
inmate.
After reviewing the,evidence, we have concluded that neither Schuit's
nor Travers' story accurately portrays what occurred on February 5, 1979.
Travers would have us be1ieve.tha.t Schuit is totally fabricating his story
as to what occurred. It is difficult to accept this proposition. What would
Schuit have to gain by lying about the incident? He initially filed a report
(Ex.16), which covered up any excessive use of force. Subsequently, later
that day and after some thought, he decided to submit a further report, in a
markedly different tone (Ex.17), which accused Travers of using excessive
force. One suspects that the tone of the initial report was motivated
by peer group pressure, that is, a feeling that one should
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not inform on a fellow officer. Subsequently conscience appears to have influenced
Schuit, and he revised the report. The result has been marked distrust by several
officers who testified, and that would likely be a strong deterrent to informing
on another officer.
In addition, aside from motive, if one compares Travers' evidence to
Schuit's, the grievor's evidence is less convincing: For example, the grievor
stated that he was on the stairs when Colquhoun raised his fists and that Schuit's
back was turned. Yet Schuit was.inside a door and would be outside the grievor's
field of vision if he was indeed on the stairs at that time (Ex.7): Furthermore,
the grievor~.would be at least eight feet from Colquhoun if still on the stairs,
which would surely lessen the immediacy of any threatening gesture from a
raised fist.
But even if Schuit does not appear to have a motive for lying, the
grievor's interpretation of the evidence must be examined, for it raises
important considerations with regard to the precise degree of veracity of Schuit's
evidence: Even if Schuit appears to have'no motive for lying, events occurred
very quickly and the atmosphere was very tense, to say the least, thus causing
problems of perception. We have concluded that, for whatever reason, Schuit
appears to have exaggerated the degree of violence which occurred. .From the
medical evidence of Or. Zuliani, plus the almost perfunctory way in which
Colquhoun was locked up and left after the incident, it is difficult to accept
Schuit's evidence about the number and severity of the blows. If he was correct,
one would expect some type of injury to have occurred. Furthermore, if the
inmate was struggling, as Travers testified and as we believe, it would be
difficult to get in full kicks and blows. Finally, if there was that degree of
violence which Schuit described, i,t is surprising, even shocking, that Schuit
would not try to intervene to stop the altercation.
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As a result, while the evidence is not as clear as one might wish, the
following conclusions appear to be justified by the evidence. It appears that
the grievor did use excessive force against Colquhoun, although not to the degree
described by Schuit. It seems that Colquhoun's raised fists proved to be the
final straw in the series of encounters between Travers and Colquhoun which
started.with the wakeup call. As another panel of this Board has stated in
Thomson and The Ministry of Correctional Services, ,128/78,it iS unwise to try
to define the precise degree of acceptable and unacceptable use of force (p.26).
In a tense situation, one must'take into account the fact that it may be unfair
to second-guess a person in a position of danger as to the threat faced. Several
correctional officers testified that they would subdue an inmate who raised his
fists at them, although in cross-examination, the likelihood of doing so was
qualified and reference was made to the distance of the fist, the physical
area in which the threat occurred, and the inmate's history.
Here, we are dealing with an incident in a confined area. The inmate
had been in the Centre several times for a variety of charges, including theft
and breaking and entering.' He had been sent to segregation several times for
incidents involving throwing~water, refusing to clean his area and assault on
another inmate. He is about 5'8" and 160 pounds in weight. Several officers
testified that he was a problem inmate.
Even with these facts in mind, however, it is difficult to believe that
the grievor needed to use physical force to subdue Colquhoun. The grievor appears
to have been at'a sufficient distance from the inmate to make it difficult to.
believe that he felt seriously threatened. He could not have been on the stairs
as he testified. He is a tall, husky man, so that Colquhoun's size would be no
threat. Overall, he appears to have over-reacted to the raised fist. To
interpret the evidence in the manner most favourable to the griever, he may have
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erred in his judgment in assessing the threat posed by Colquhoun's raised fists.
Even so, the use.of force to subdue the inmate appears to have been unnecessary
or at least premature, if the circumstances are viewed objectively. .However
even if the use of force was unnecessary in the circumstances, we are not prepared
to accept Schuit's evidence in total as to the degree of violence which occurred,
for the evidence does not support him.
With that conclusion, the next question to be addressed is the proper
penalty to be assessed. The grievor has a chequered work record: a reprimand
of December 19, 1977 (Ex.18) regarding inmate treatment; a reprimand of
September 5, 1978 regarding horseplay; and the two-day suspension under consideration
here, which we have reduced to a written reprimand. He has a relatively short period
of seniority (just less than two years at discharge). His work record is not
the best, and he has had problems dealing with inmates before.
On the other hand, he did complete his probationary period. The
testimony of 'officers like Miller and Charette indicated that part of their
rating of him as an average or below average employee derived from a dislike
of the grievor personally. Furthermore we must give consideration to the facts
of the case and to the behaviour of Schuit and Charette here. Their conduct
may not excuse the grievor's behaviour, but it did contribute to the unhappy state
of events and.is.relevant to the penalty. Charette made a serious'error in judgment
in not accompanying the grievor to segregation or in not sending another
officer in his place. Schuit, while not informed of the prior incidents,
made an errar in proceeding into the cell area and unlocking the door without
waiting for Colquhoun and Travers to enter. He knew that both Travers and
Colquhoun were keyed up while mounting the stairs and he should have been
alert to trouble. Furthermore, he should have intervened in the aitercation
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iC he truly believed that force was unnecessary or excessive. An officer has a
duty to protect inmates and if Colquhoun was being abused, he should have intervened.
While arbitrators are reluctant to secondkguess management as to the
appropriateness of corrective discipline, it is sometimes necessary to revise
the penalty assessed in order to take into account certain factors which may have
been insufficiently considered. In this case, although we are concerned about
Travers' ability as an employee and his prior record, and his short period of
seniority, we are not prepared to find that discharge is warranted. The grievor
has made an error in judgement in the Colquhoun incident and acted to subdue
the inmate without needing to do so. This excessive use of force warrants
disciplinary action. However, we feel that discharge is excessive here. The
assault incident, while very serious, was provoked in part by others' errors
in judgment. The grievor has already been punished in the criminal'courts
for his action, and a lengthy period of suspension will emphasize the gravity
of this conduct, both to the grievor and other employees. While the excessive
use of force against inmates cannot be tolerated, and such conduct must be
deterred, at the same time, one must look at what happened in each case.
Here the use of excessive force seems to have occurred because of an error in
judgment, rather than,a malicious attack, and it,was caused, in part, because
the grievor was placed in a vulnerable position by his fellow employees.
Finally, even if the assault is'regarded as a.culminating incident, the
reque~st formand horseplay incidents are not so closely related as to show an
inability on the part of the employee to conform to acceptable standards of
behaviour in the future, particularly when the assault incident is characterized
as the evidence appears to indicate.
The final question is the appropriate penalty. By s..18(3) of the
crown .n@oyees' collective Bargaining act, S.O. 1972, c.67 as amended 1974,
c. 135; 1978, c.79,'this board can substitute a "just and reasonable penalty
for discipline or dismissal which appears to be excessive". By s.~8(3a) .ad
/3b), that discretion is limited in cases such as the present, where excessive
force is used in a correctional facility:
(3aJ Where, in exercising its authority under subsection 3,
the Grievance Settlement Board finds that an employee who
works in a facility,
(a) has applied force to a resident in the facility,
except the minimum force necessary for self-defence
or the deface of another person o.r necessary to
restrain the resident; or
(b) has sexually molested a resident in the facility,
the Grievance Settl+ment Board shell not provide
for the employment of the employee in a position
that involves direct responsibility for or that
provides an opportunity for cootact with residents
in a facility, but the Board may provide for the
employment of the employee in another substantially
equivalent position.
(3b) In subsection 3a,
(a) "facility' means...
(vi) a correctional institution under The Ministry of
Correctional services Act, 1978...
(b) "resident" means a person who is an inmate, patient, pupil
or resident in or is detained or caredJfor tie-facility.
That section prevents us from reinstating the grievor to a
position where he would have inmate contact. In light of the
griever's serious error in judgment and his difficulties in
handling inmates, we would be loath to do so, even absent that
statutory provision. We are concerned about the grievor's
ability to deal with inmates, particularly his judgment in
handling them. However, we are not convinced that the
griever cannot provide the Ministry with acceptable service
in another job in which he does not have inmate contact.
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Therefore, in compliance with the statute's instructions, we would allow the
grievance regarding the assault and order that the. griever be reinstated forth"?
in another substantially equivalent position in the Ministry which he is
qualified to fill. Because the grievor was at fault in the incident and
because he did use excessfve force and in order to emphasize the gravity
of such conduct, we are not prepared to award backpay or accrual of
seniority credits since the discharge. This amounts to a very lengthy
period of suspension in the circumstances, but it will emphasize the
gravity of the conduct.
The Board will retain jurisdiction to deal with problems in implementing
this award i,ncluding determining what c~onstitutes'a "substantially equivalent
position," should any arise.
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Katherine Swinton, Vice-Chairman
"E. R. O'Kelly"
E. R. O'Kelly, Member
(partial dissent to follow)
Dan Anderson, Member
Toronto, Ontario
May 29th 1980
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