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HomeMy WebLinkAbout1980-0430.McQueen.82-04-02CROWN tMPLoittS GRIEVANCE SETTLEMENT :i BOARD .430/80 IN THE MATTER OF AN ARBITRATION I Under THE CR&N EMPLOYEES COLLECTIVE BARGAINING ACT Between: ! Before: For the Grievoi: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (A. T. McQueen) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R. J. Delisle Vice Chairman I. Thomson Member A. G. Stapleton Member I. Rolland, Counsel. Cameron, Brewin & Scott For the Employ+r: P. Van Horne, Staff Relations Officer / Personnel Branch Ministry of Correctional Services Hearing: February 22, 1982 The qrievor complains that he has been unjustly :.. disciplined for an incident that occurred on April 7, 1380. The discipline involved a reprimand and a'removal from duty without pay for a period of three days. The allegation pursuant to which the discipline was imposed was that on Monday; April 7, 1980 while on duty at the Toronto Jail the qrievor entered a security corridor without a Correctional Officer cover and in so doing was negligent in his duty and jeopardized the safe custody of keys. The griever- testified that on the evening of April 7, 1980 at 2300 hours he was the officer in charge of the second floor and while patrdxlinq Corridor 2C South observed some cells which were in total darkness. In order to perform his duty..@ ensuring the presence of the inmates and their safe condition the grievor entered the corridor and ordered the occupants to remove the obstruction over their night lights. The 9rievo.r admits that the performed this manoeuvre while in possession of the keys and also without any cover. He justifies his action on the basis that at that time in the evening the deadbolt was in place, he had ensured the same by checking the panel lights; outside the corridor, and that therefore no inmate could escape from his cell even if he was in possession of a key. The grievor noted that he remained at all times out of arms reach of the cells and 'therefore submits that he was never in any danger from the inmate population. The grievor Eurther justifies his actions by insisting that his Supervisor, Doherty, authorized such a manoeuvre a week previously. The Supervisor, Doherty, t,he Assistant Superintendent, Nicholson, and the Superintendent of the Toronto Jail Starkie, all testified, .t and were consistent throughout, that it is of the first importance thatno Correctional Officer shall ever enter such a security corridor without cover nor shall he enter such corridor without first turning over all keys in his possession, _~- .:. except those required in the corridor, to the officer at the grille. This second requirement is seen in the Standing Orders and Regulations of the Ministry, specifically Paragraph 8, Item 4 under General Rules for Control of Keys. All three management witnesses recognize that there. is no express statement within the Standing Orders and Regulations with regard to the first command, that an officer not go unobserved into such a corridor, but each maintain that it is, while an unwritten rule, a firmrule. In addition the Supervisor, Doherty, was emphatic in his denial of any authorization flowing from him to the qrievor for such a manoeuvre. We accept Doherty's evidence that he would never give such an instruction. The management witnesses were consistent in their opinion that even though there was an indication from the panel lights that the deadbolt was in position it has been known for such a panel to give an aberrant reading and for an inmate to be able to effect an escape should the keys come into his possession. - -Further, their expert evidence was to the effect that any ~officer entering the corridor exposed himself to the danger .of being hurtby flying.objects from the cells and that her would be in a most vulnerable position if there were no Correctional Officer witnesses to his movements. We accept this opinion. The, inmates normally kept in Corridor 2C are prisoners who are regarded by the institution as their more dangerous type of inmate, those inmates who they feel are destined, should a conviction be forthcoming, to serve time in the penitentiary. All management witnesses described the orientation courses and training programs to which Correctional Officers are subject and note th,at the qrievor has received' the same instruction. It is their consistent view that during such courses a Correctional Officer is advised never to enter such a security corridor without cover. The cover isregarded as part of the security system within the institution since the cover performs the role of witness and it is not normal for inmates to misbehave if :~!:they are being viewed by such a witness. A most troublesome point occurred during the course of t!he hearing relating to a note in the Corridor Log Dook purportedly entered at 0630 hours on April 3, 1980 which entry reads: "Verbal conversation with Doherty. Permitted to qo into corridors, deadlocks on, no cover. Signed McQueen." It was suggested in argument that this entry was made after the incident.on April 7, 1980 and was actually an attempt on the grievor's part to cover himself and at the same time implicate a senior officer. It was suggested that this indicated a full awareness on the grievor's part that his behaviour on the evening of April 7th was against all the rules -and regulations of the institution., 'We have had a good deal of difficulty with this accusation since the circumstances are such as to cause a good deal of suspicion that the entry may have indeed been so made. At the hearing the grievor described the exchange with Doherty as something less than a conversation. In fact he described it as a question coming from himself to Doherty with regard to whether it was proper for a Correctional Officer to enter a corridor, deadlocks on, without cover, and such question was addressed to Doherty in a casual way some distance from .I Doherty with an impression formed by the grievor that Doherty's response was in the affirmative.. Considering the ‘lous nature of the accusation we are not prepared, most ser in spite that the of the suspicious circumstances, to make a finding grievor was.lying in his evidence before us and guilty of falsifying records within the 'institution. Tie are prepared to give the grievor the benefit of the doubt; considering the personality ,observed by us during the course of the hearing and the grievor's extreme taciturnity it is possible that the grievor really believed that he was permitted to go into the corridor, deadlocks on, no cover. Some support for that possibility rests in the fact that his report to the Superintendent dated April 7, 1980 refers to his entry into the corridor for ~the purpose of checking on the inmates; this indicates some bona fides on the Dart of the grievor in that the evidence of the Superintendent was that he would not expect a guard to go into the security corridor in such circumstances, but that rather he would expect the guard to use a flashlight from the walkway provided. '< Although we~are prepared to make this finding in the ,grievor's favour with regard to his bona fides that does notend the matter. ._. We ares satisfied that the rule, that correctional staff are not to enter a security corridor without cover and most particularly not while they are in the possession of keys .is a rule enforced within the institution and that all correctional staff are expected to know and abide.that rule. We'are certainly not prepared to say nor do we have the jurisdiction to say that the precautions being taken are an over-reaction. It is not for us to determine the appropriate security measures to be taken in such a situation but rather for the experts. It may appear to outsiders to be an over-reaction but the security procedures are there to ensure over-all protection in case other security checks do not come up tom their full measure. We would expect an officer of NcQueen's experience, some five year's service, and with his training to clearly understand this rule and we find him to be negligent in relying on the "conversation" with Doherty to \ relieve himself from this requirement and to violate this cardinal rule on the described minimal reaction from his Supervisor to his request for information. The question for us is whether such negligence deserves the discipline awarded in this case. We were most impressed with the evidence of Superintendent Starkie in his description of how he came to conclude a three day suspension was an appr0priat.e penalty.~ :ie noted that in determining a penalty he would normally take into account first the previous record of the grievor, second the seriousness of the incident, and third what previous penalties had been given for similar misconduct. 'de was properly concerned with how other Correctional Officers would perceive the incident and the appropriateness of the penalty. He noted that the grievor's previous record is not event free and that there is one instance of a two day penalty for failing to make sufficient entries into a log book. He also notes that over the past few years there has been some concern with regard to the grievor's suitability for his present position and some effort made to retrain the grievor. With regard to the seriousness of the incident the Superintendent regards it as-a standing rule in all maximum security institutions that unless there is an absolute emergency no Correctional Officer should enter a security corridor without cover and that the grievor's conduct *was a direct contravention of the rules capable of glacing many lives in jeopardy. Finally, he noted for us that with regard to previous penalties he recalls +, L#o previous similar incidents where in the first incident there was a one day's loss of pay and in the second incident ten da.y's loss of 9ay. Unfortunately, we know little more about those previous incidents to:-assist us in drawing comparisons. The Superintendent also formed the view that the grievor was : lying about his conversation with,the Supervisor and took that into account as well in assessing penalty. It is with a great deal of hesitancy that we move to alter the discipline imposed since it appears to us that the Superintendent is obviously in the best position to know the. total impact on his officers of too lenient a discipline for such a security problem. We respect the thought:'that the Superintendent imposed the discipline as a corrective measure ashe seeks to communicate to this officer just how serious was the breach of security. Nevertheless we conclude that a written reprimand, along the lines of the letter by Superintendent Starkie dated Hay 15, 1980, should appear on the grievor's record with the deletion of the liability of three day's away from d-uty without pay. We do this primarily because of our different view regarding the grievor's good faith; negligent conduct deserves less of a penalty than deliberate wrongdoing. We hope that the hearing before us together with the written reprimand will sufficiently communicate to the griever the need for a change by hxn in hLs approach to the position of Correctional officer. DATED at Xingston this 2nd day of April, 1982. Vice-Chairman L- Mr. I. Thomson,~ Member Yr. A. G. S/tapleton, Member