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HomeMy WebLinkAbout1979-0228.Sukhu.87-02-14‘$ , : IN THE MATTER OF AX AR?ITFATIO:i - _ : Under Tk;Z CROWN E,WLOV~'ES COLLECTIVE 3ARGAINII:G ACT :. .: . - Before 3etween: -. ., : Eefore.i ?. : 1.~. YzcGrecor -I xemher ,. -. _, . . ,. -"or tte.,Grievor:.. Ri.&na#, @Znse& Cameron, Brewin i Scott'.' .i, .'. . _ I,. , ., ior the Enplo:&: M. Chitra; Co&ii ., ,, .., '3 I Legal-Services Branch. , Xinistry of Csrlecti5nal Ser.: ~FCSS 1. - . . ,. ..~ DA of searing: S&&)er 4 " "'Y 'L , 1531. -(LnLerim Award), _' ., Fe+ua~ry 18, March ll,.Xs:J.14, 1982 (Substantive Awarh) , ./~ . . : -2- AWARD This arbitration involves review of discipline which *as imposed some time ago, in 1979. On July 2, 1979, the, grievor, who was a Correctional Officer holding the rank of C.O. 3 (Corporal), was involved in an altercation that occured in the Head Shift Officer's Office/Control Room of the Ximico Correctional Centre. The discipline under review was based upon this altercation, which was between the grievor and the Head Shift Officer, Mr. R. Kennedy, and the events leading up to the altercation. On July 25,. 1979, the grievor was suspended without pay for 10 days. There were two grounds set forth by the Employer for imposing this level of discipline. One ground was that "You assaulted .Xr. R. Kennedy, Head Shift Officer". The second ground was that "Your conduct during this incident was not consistent with the expectations of an employee of this klinistry and especially of an employee holding your rank". .Xr. Carl C. DeGrandis~, the Superintendent of the Centre, added in a letter to the grievor with respect to this latter ground, "I am satisfied that, beginning with your receipt of orders from H.S.O. through the 12 Building Officer, you did exhibit, in front of subordinate officers, colleagues and superior officers, inappropriate conduct." - 3- The grievance leading to this arbitration followed in - due course..* _ At the end of the hearing, the Board notified counsel for the Union and &ployer that, based upon the evidence .that had been heard,in.t&e case,. the.Board was unprepared to sustain the imposition of any discipline upon the grievor on the basis of the first ground, i~.~e., assaulting ._ Mr. Kennedy, the Head Shift Officer. In addition, the Board indicated that it would not be prepared to sustain imposition of a penalty so severe as a 10 day susF:ension . upon-then second ground fork discipline,,which, for con- I. _. venience we,shall call conduct unbecoming an employee of .~ the grievor!s.rank. In accordance with ,these rulings, counsel limited their arguments to (1) whether any discipline_was-warranted on the second ground; and, (2) if so, what should,ha?re beenthe appropriate level of discipline imposed! .‘; For reasons which will become evident from what .fo.llows in this Award, we conclude that some discipline . i‘ l This Boardissued anInterim Award in response to a preliminary objection'made by the Union at~.the commencement of the hear- ing in this case on Sept. 4181. The objection was in the nature of a motion to strike the second ground for discipline, i.e., conduct inconsistent with the expectations of an employee holding the grievor's rank. The objecticn was based up failure to provide particulars.. For reasons set forth in the Interim Award, we denied this motion, and on Feb. 18/B? _ _ -n--.r.rr-d -_ hsi.r +hd er?hs+nntive case on both OrOunds for 1 - 4 - was warranted; however, the level of discipline should.be reduced to a written warning bearing a date of July 25, 1979, which was the date of the letter from Mr. DeGrandis in which the grievor was notified of his 10 day suspension. To this extent, the grievance is allowed. All of the~events involved in the imposition of the disciplineunder review occurred on July 2, 1979, which was being celebrated as Dominion Day in that year. Several witnesses testified at the hearing as to what they observed on that day regarding the matters leading to.this arbitration. We do not intend to undertake an extensive review of the evidence given by each of these,witbesses. As might be expected from the fact that almost three years have elapsed between the incident and the hearing, the testimony of these witnesses did not always agree on each and every detail. In these circumstances we believe that it is most appropriate to set forth 'in a narrative fashion the events as we apprehend them from our review of all this testimony. On July 2, 1979, the Mimic0 Correctional Cent&s was having a field day in celebration of the Dominion Day holiday. About 90% of the inmates were expected to take part in the activities of the field day, which included - 5 - .: .:.i .I . . games, races, etc., for which they might win prizes. The field day was to take place on the playing field of the institution,' which was a large L-shaped area r . outside the main gates. :_ Th,e Head Shift Officer on that day was Mr. R. Kennedy, a C.O. 4 (apparently equivalent to a.Sergeant). -:_ . He.was respon.sible for organizing, a, security _ to prevent any escape of inmates from the area of the .~' ,.s ., -playing field,, According to the usual practise in these r '_ situations, he decided to post several Correctional . I .: _~.,-~., Officers~ around the,,pqrimeter of the field and have I dthers roving about the field in order to direct the other officers,toward various areas of activity as the inmates shifted from place to place on-the 'field. This 'i : _~ '.' +kind of duty is,called "p,icket" duty. It is usually : .,. I. .: performed by officers holding a rank lower than CfO. 3. I . -I When the correcticnal facility is shorthanded, however, it is not uncommon for C.O. 3's and even hi~gher ranking Correctional Officers to go out'on picket duty. ,. '. ;; _ Recause ,this tias.a holiday, the institution was short staffed. Consideri,ng. that 90% of the inmates : would be out on the playing field, Mr. Kennedy-decided that it would be necessary to call upcn at least one of -6- the C.O. 3's to perform picket duty. He decided on the gri evor . He had Control call sumber 2 Unit, where the grievor was Unit Supervisor, to request the grievor to report for picket duty in the field. At this stage, it is necessary to go into the state of mind of the grievor when he received this message from Mr. Kennedy. Over a considerable period of time, there had been growing in the mind of the grievor considerable resentment toward Mr. Kennedy based upon a suspicion that Mr. Kennedy delighted in antagonizing and humiliating him. The grievor is slight of build, soft-spoken, and highly educated. He holds several-degrees. Mr. Xennedy is a large, military-set man, who tends to attempt to control situations by dint of his considerable presence and brash manner. It would be understatement to say that H.r. ,Kennedy am&act& himself as,= autocratic leader. He was used to shout- ing orders -- sometimes liberally peppered with epithets -- and having them obeyed without question. In the period of weeks immediately preceding the incident in question, it had been the grievor's impression that, for whatever reason, Mr. Xennedy was singling him out for more abuse than he directed toward fellow officers -7- ., in the course of pursuing his aggressive style.of managemept. It does. notappear to be necessary to - ,go into the details;of the.encounters which fostered this, belief in.the,mind of the grievor. It suffices to say that ,on several occasions when issuing a direct order to.the griev,or, Mr. Kennedy swore at him. At one point, not long before the incident in question, the grievor lodged a' comp1aintpgajns.t Mr.,Kennedy regarding, his.use of this kind of ,language in addressing . . .ighf+ grievor. This complaint.did not bear fruit because, ' ~_ . . eseentlallp, ~there were no-witnesses and,it became a que~stion of the,grievor's word against that of Mr. Kennedy. Nevertheless,~ the fact that the grievor had lodged this complaint probably gave the griever more : : _ reason then eve,r to fear,an incr,easing amount Of : . p,ersec,ution or harassment from Wr, Kennedy. . '.&: '.. -. \, ,'. i, When the griever-received -Xr., Fennedy's directive '_ ', ,to report to th, playing..field for picket d$Fy, he! felt :c _' that th.is, might be.more haras.sment in the formof an ,. attempt to humiliate him. His emotions became agitated, ,, . . .although,,.hemaintained .a surface appearan,c,e of calm. . 1 ., _ He decided ~to go to Mr. Kennedy's o.ffice~,in Unit 3. ~. The route he had to take from Unit 2 to Unit 3 brought ,- . I . him close to the gate through which the inmates had to. pass on their way out to the playing field. Standing at this gate was Mr.. John Fe:guson; the second in command of the shift and apparently a good friend of Mr. Kennedy. Mr. Ferguson had a walkie talkie to give to the grievor for use in his assignment as a picket. As the grlevor approached Mr. Ferguson, he felt that he detected a smug smile on Mr. Feguson's~face. This convinced hFm more then ever that the directive to go out on picket duty was part of a conspiracy between Mr. Rennedy and Mr. Ferguson to harass him. He became more agitated. He refused the walkie talkie and.headed _, for Mr. Rennedy's office. In order to get to Mr. Kennedy's office, the grievor first haa to be admitted. to the Control Room, which always was, locked. The junior officer on duty in Control, Linda Ashley, a C.C. 2, admitted the grievor. She then watched as the grlevor entered Mr. XeMedy’S office without knock- ing . The grievor closed the door behind him. Through the window in the door, Ms. Ashley saw the grievor pounding his fist on Mr. Kennedy's desk. He appeared angry. He was shouting. Because the door was closed, Ms. Ashley could not make out the specific words that were being used by the grievor. :’ - 9 - . We only>have the testimony of the grievor and Mr. ,Kennedy regarding the precise sequence of events in Mr. Kennedy's office. We conclude that the grievor went into Mr..Kennedy's office with the intention to confront 3. .: _ hi,m with his..suspicion,s and demand an explanation why, he, as opposed ,to..some ot+er officer, was being directed .* ~~ to god .out~on picket duty. When Mr. Kennedy replied, he '.. swore at, the grievgr , We accent the grievor's testimony . . .,,- that,.Mr. ~Kenne,dy said, _ "Take the fucking radio and go out -. . into the fucking .field." . ,. .~ ....~ . . . The grievor lost control of himself. He began ~banging his fisf on p:.Kennedy's desk while shouting, "Youcan't. speak to me_like, this!" Mr. Kennedy leaned a,_, ,. ~ . - fowara while attemp@nglto~arise from his chair, and .I ,. '!. :, ,. as he did.so his face was ,.brushed by. the grievor!s fist. -,, ,, He .stood up~&,and began to.move toward the griever, saying, 'IMe&, you are assaulting me." The grievor, a much smaller . , ., -. .man, wasCs,urprised.and.intimid,atid. He felt that he hadn't ._ ,:: -... ~~., .~ touched Mr. Kennedy. He backed toward the wall, replying, . "I am.assaulting you?" ., ) .a ..Mr. Kennqdy replied, "Yes." And with that he kicked . _! ! the grievor in the shin. The grievor bent forward. As he: I --c ., .,:‘. ‘,, i \’ - 10 - did so, Mr. Kennedy delivered an uppercut to the grievor's jaw, splitting his lip and loosening at least one front tooth. It is not necesary to go into the details of what happened after the grievor was struck by Mr. Kennedy. Our only concern is with whether the grievor's response to the direction to perform picket duty, beginning with his receipt of the order and ending with his pounding on Mr. Kennedy's desk, constituted misconduct for which discipline ought to have been impoked. Our answer to this question is, yes. At the time of this sequence of events, the grievor was a C.O. 3 (Corporal) in a paramilitary organization. In such an organization, it' does not seem unreasonable to expect a somewhat higher than ordinary level of discipline to be adhered to by personnel. It seems that the nature of their work would require observance of this kind of stricter disciplinary code. Otherwise, it might seem to be impossible for the individual correctional officers within the organization controlling this correctional facility to be secure in the knowledge that in the event of an emergency, a disciplined and - 11 - co-ordinated response would be forthcoming. For this reason, it would not seem to be appropriate,. to leave unchecked an instance where a legitimate -orderof a superior officer was ,challenged in the . way' in which the grievor-challenged Mr. Xennedy's . order in this case. At the hearing, the grievor conceded that the order to perform picket duty was proper. He stated that he did not challenge it on this ground, but rather on the~ground that he suspected the oraer to be part of a programof harassment .directed toward him by.Mr. Kennedy. His challenge of,tbe order was made in a violent and aggressive manner , within.fhe clear view and 'earshot of a.junior offic,er, Ms.:,Ashley. .._ ,,. ,' . .~.. The-question whether the,grievor's suspicions were justified, in the sense ;that they were based upon real . . . . or imagined grounds,, d~oes. note enter. into the dete~rmina- tion whether the grievor should have~been. disciplined. . He should have been. The reasonableness of the griever's belief that-he was being harassed,,.i.e., provocation, is .appropriately considered on the question of what level of discipline to impose. In this case, 1982. DATED AT London, Ontario this 14 P? of July - 12 - there seems to have been real provocation. The grievor's own belief that he was being singled out for harassment was confirmed as most probably correct by at least one other independent witness. Secause of the existence of this provocation, we conclude that the fault of the grievor is diminished to the point where the conduct ' warrants imposition of minor discipline. In our view, a written warning seems to be appropriate. The 10 day suspension cannot stand. The grievance is allowed in part. It is directed that the 10 day suspension be removed from the redord of the grievor and that he be compensated for all wages, etc., lost during the period of the suspension. We further direct that a written warning dated July 25, 1979, be substituted for the suspension. This warning should be limited to the ground that the conduct of the grievor during the incident was not consistent with the expecta- tions of the Ministry regarding an employee holding the rank of the grievor. - 13 - ADDENDUM While I concur with the Award of the Vice-Chairman, I wish to add that the events that transpired in Mr. Kennedy's office should be considered in the light of certain evidence that was heard but does not appear in the Award. Mr. Sukhu's evidence was that he proceeded to Control in order to get instructions as to where to place himself in the field. As the Griever approached Mr. FerCJUSOti near the gate, then qrievor asked him where he, the Grievor, was to place'himself in the field. Kr. Sukhu's evidence was that Mr. Ferguson arinned, shruqqed and said that he didn't know and told him to ask Mr. Kennedy. From .Mr: Ferauson's grin, shrug and resoonse, he took it that Mr. Ferguson and Mr. Kennedy were in league. He proceeded to the Control Room. Mr. Sukhu's evidence was that when he entered the H.S.O.'s office, he asked Mr. Kennedy where he wanted him in the field. It was to this question, according to the Grievor, that Mr. Kennedy -responded, "Take the fucking radio and go out into the fucking field", after which Mr. Sukhu responded by asserting that he could not be spoken to thatway. In all other respects DATED at Toronto this