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HomeMy WebLinkAbout1982-0579.Lusis.83-06-23 Decision. ”.. ... .... .- *- __ .. . . . .... . . . -. 180 DUNDAS STREET WEST, TORONTO. ONTARIO. M5G 1Z8 -SUITE 2100 Between: Before: TELEPHONE: 416/598- 0688 579 / 82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Mr. G. Lusis) Grievor - And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer R.L, Verity, Q.C. Vice Chairman S. Kaufman Member A.M. McCuaig Member For the Grievor: M . Mercer-DeSant is Grievance Officer Ontario Public Service Employees Union For the Employer: J.F. Benedict Manager , Staff Relations Ministry of Correctional Services Hearings: February 11, 1983 April 7, 1983 May 30, 1983 -2- The Grievor, Gunars Lusis, was discharged on November 15, 1982 for his alleged negligence in the escape of a prisoner from St. Michael's Hospital in Toronto on the night of November 9. In a grievance dated November 15, the Grievor alleges dismissal without just cause and by way of settlement seeks reinstatement with no loss of benefits. The Grievor aged 56 was employed as a Correctional Officer 2 at the Toronto Jail and had been employed with the Ministry at that location since 1975. In a letter of termination to the Grievor, Superintendent C. C. DeGrandis concluded: "that the escape of inmate H. was aided by your obvious and self admitted negligence and I further conclude that if such negligence had not taken place, inmate H. would not have had the opportunity to escape as he did." The Superintendent's allegations of negligence against the Grievor were based upon the following findings of fact (Exhibit 2): "A) That an ex-inmate on November 8, 1982, was allowed to visit inmate H. for a period of one hour and thirty-five minutes, and that you were aware no ex-inmates are allowed to visit inmates of the Toronto Jail without the expressed permission of the Superintendent, and if such approval is granted, the visit will be for only twenty minutes, I must conclude you were negligent in the discharge of your duties as a Correctional Officer. B) That you did not inform the Shift Lieutenant either on November 8, 1982, or November 9, 1982, that an ex-inmate, known to you, had on success- ive days visited or attempted to visit inmate H., I must conclude you were negligent in the discharge of your duties as a Correctional Officer. C) That you removed the physical restraints from inmate H. (leg irons attached to one leg and the hospital bed), I must conclude you were negligent in the discharge of your duties as a Correctional Officer. D) That you allowed inmate H. to go into the washroom area to 'wash up' without maintaining constant and uninterrupted visual contact with him, I must conclude you were negligent in the discharge of your duties as a Correctional Officer.'' Mr. H. an inmate at the Toronto Jail was hospitalized on November 7, 1982 as a result of his having swallowed two spoons. On November 8, the Grievor was assigned to hospital duty to guard inmate H. on the 3:00 to 11:00 afternoon shift. He performed the same function on the same shift on November 9. Inmate H. was placed in a room shared with several other patients on the second floor of St. Michael's Hospital. The Grievor was experienced in performing Hospital assignments having done so approximately 10 to 12 times a year for a number of years. The Grievor's evidence was uncontested that he was provided with no information concerning the inmate by the Supervisor Mr. Swan. It was the Grievor's evidence that he was simply told the name of the patient and the location of the Hospital. The Grievor testified that he did not know inmate H. personally, but had heard "through the grapevine" that H. had swallowed two spoons and that he was a known homosexual. -4- The evidence is clear that the Grievor allowed ex-inmate M. and H.'s sister to visit inmate H. for 1 hour and 35 minutes during the afternoon of November 8. The log book records the fact that the ex-inmate identified himself by name and National Parole Board number. The Grievor did not seek the Superintendent's approval for that visit although he did record the particulars of the visit in the log book. Similarly, on November 9, the same ex-inmate and H.'s sister visited inmate H. briefly and in so doing left several packs of cigarettes and three oranges for the inmate. That visit (admittedly brief) was not recorded in the log book. It is standard practice that a log book is maintained by Correctional Officers in the Hospital in the same fashion as at the Jail. The sequence of events leading to the escape of inmate H. on the night of November 9 was a matter of some dispute. The Grievor offered three separate (and somewhat differing) explanations as to what transpired. In his Occurrence Report (Exhibit 7), the Grievor wrote a brief explanation as follows: "TO Supt. Mr. C. DeGrandis Toronto Jail; November 9/82; Time - 23.55 Subject: Escape of H. from St. Michael's Hospital Sir, On the above date I started my shift at 2.30 PM and at the entrance of the Hospital I met his sister A.H. and one M. who had visited H. on the previous day as per log book. I asked them how he was to-day. They replied OK. We just are going to get him some oranges and smokes. They came in for 3 minutes. I took over the shift in the prescribed manner and the evening -6- The Grievor testified at the Hearing that he deliberately left the inmate unattended in the washroom to avoid any potential complication which might arise from the Grievor's alleged sexual preference. The Grievor testified that inmate H. went into the washroom; came out again at 9:35 for soap and shampoo; re-entered the washroom and was allowed to remain unattended for another 7 minutes. The Grievor's testimony was that he entered the washroom at 9:42 and observed that inmate H. had escaped by the bathroom window. The escape was affected by the tying of sheets together which were attached to the washroom radiator. The evidence is clear that the Grievor was greatly distressed by the escape and had some considerable difficulty contacting the Jail on his two-way radio. The Institution was first advised of the escape shortly before 10:00 p.m. by means of a garbled message from the Grievor. Support Supervisor Anthony Walmesley testified that the Grievor was in a ''nervous state'' and "didn't look well" when Walmesely arrived at the Hospital later that evening. The Grievor's general condition was also observed in the same fashion by the Toronto Jail Assistant Superintendent Hugh Nicholson. Two Police Constables from the City's 52nd Division arrived on the scene promptly following the escape for the purposes of investigation. Inmate H. was subse- quently apprehended by the Police on November 30 which was some 20 days after the escape. -7- Superintendent DeGrandis assumed his present responsibilities at the Toronto Jail on August 30, 1982. The Superintendent was forth- right in his testimony that staff training was a continuing problem at the Jail. To his credit, the Superintendent has instituted a meaningful program to correct that problem. He candidly admitted that his decision to discharge the Grievor was made without resort to past disciplinary response for similar incidents at the Jail. The Superintendent testified that "custody is the heart of the Correctional Officer's job and when you fail at that there is not much left to fail at". On behalf of the Ministry, Mr. Benedict cited the relevant standing orders of the Toronto Jail and the several examples of the Grievor’s negligence in failure to follow those orders. He argued that there were no mitigating factors which would justify the reduction of the penalty. He also ably reviewed the relevant sections of the Ministry of Correctional Services Act, 1978 R.S.O. Chapter 37, and Regulations 515-78 and 243-79 as they relate to the Superintendent's responsibilities. For the Grievor, Ms. Mercer-DeSantis admitted that the Grievor had made errors in judgement which did support the imposition of some disciplinary penalty. However, the thrust of her argument was that the penalty of discharge was too severe in all the circum- stances. .. - - I -. _. ." . ." ... - . - -5- was quiet. At 9 PM H. asked the nurse if he could have a towel and clean pajamas for the night. At 9:30 PM I uncuffed Harris and let him in the washroom. At about 21.35 I went to check and found the window open and tied sheets hanging to the floor below. I radioed control and they received the message at approx 21.40. The Police arrived about 5 minutes later and started their investigation. I realize now it was my duty to be with him while he was in the- washroom, but since there was only one exit and I had checked the window and could not open it assumed the place escape proof. In conclusion I would like to ask for leniency when considering this occurrence as my life truly depends on my work at the Institution. G. Lusis, C.O.2" At a meeting on November 12 with Superintendent DeGrandis, the Grievor admitted that he had removed all physical restraints from inmate H. at approximately 9:30 p.m. for the purpose of allowing the inmate "to wash up". The Grievor admitted that he had not positioned himself to watch inmate H. In fact, the washroom door was closed. The Grievor also stated that inmate H. was in the washroom some 10 to 12 minutes unattended. In his evidence, the Superintendent testified that he got the impression from the Grievor's account during the meeting of November 12 that the Grievor had been watching television while the inmate was left unattended in the washroom. -8- By way of general background, it is clear that the Superintendent of each institution within the Ministry had the authority and the duty to issue directions to all staff which are commonly referred to as Standing Orders. The Standing Orders direct staff in the form of operational guidelines but cannot be considered as all encompassing. Clearly, the Standing Orders are designed to be interpreted and enforced by the staff in a reasonable and intelligent manner. In the instant Grievance, the relevant Standing Orders at the Toronto Jail were set out in Exhibits 5a, 5b, 5c and 6. In the forward to Exhibit 5a it stated: "It is the duty of all employees to read and understand the standing orders. On return to duty from vacation, sickness or days off, employees wi 11 acquaint themsel ves with newly published Standing Orders or amendments." Also, it is stated: "It is not the intention of these Standing Orders to deal with every situation that may arise; they are issued as a guide and should be interpreted and enforced in a reasonable and intelligent manner." In Exhibit 5a the relevant provisions of the Standing Orders bear repetition under the heading of "Reporting and Discharge of Duties by Officers": "8. Ensure the security of all inmates under his/her control, follow all instructions and procedures in regard to custody, and take all additional precautions to main- tain the security of the institution." -9- "10. Before completing his/her tour of duty the staff member shall make a written report to the Shift Supervisor of any unusual incidents which may have occurred during his tour." . "12. All staff members should display initiative and common sense when dealing with inmates. This sort of action can prevent problems for you and other staff members. I' The following provision is relevant under "Security Checks" in Exhibit 5a: "Security is one of the main tasks in our , Institutions, and if all staff are security conscious, then our problems will be minimized. Therefore, all officers must be alert and observant at all times for any unusual incidents or behaviour." Under "Visits by Ex-Inmates" Exhibit 5a states: "Visits by ex-inmates are not permitted without the approval of the Superintendent." In "Reporting Escapes'' it stated that: "The escort officer(s) will immediately report the escape to the Shift Supervisor and submit a report detailing who escaped, names of those in the party, area of escape and other informa- tion which could be of value." - 10 - Standard Order Number 29 entitled "Community Hospital Duties" is also part of Exhibit 5a. The following provisions of Order Number 29 are relevant: "29. a. 1. Only permanent Correctional Officers will carry out hospital duties. Staff class- ified as casual officers may be employed in the institution to replace officers carrying out hospital duties, but are not to carry out such duties themselves." "29. a. 3. As far as practical, all operational routines and institutional regulations that pertain to the jail, will be applied to hospitalized inmates." "29. a. 4. Visitors will be allowed as laid down in the Regulations made under the Ministry of Correctional Services Act, but subject to the requirements of the hospital medical staff and in conformity with the hospital visiting hours. As in the institution, no articles will be allowed to pass between the inmate and visitor." "29. b. 7. When the officer needs to be out of sight of the inmate for a short period of time, he should endeavour to have a hospital security officer, a police officer or an employee of the Toronto Jail replace him for that period. If these persons are not available, the escorting officer should radio the jail and explain the circumstances. In the event an emergent situation occurs and the officer must leave the inmate/patient unattended for any period of time, the handcuffs, leg irons will be used. When the officer returns to duty, the institution should be advised by radio and the facts entered in the Hospital Duty Log." - 11 - "29. b. 8. The Shift Supervisor will visit the hospital at least once in every shift to examine security/lcontrol , escorting staff's well being etc. and enter the appropriate obser- vations in the Hospital Duty Log Book and the Shift Supervisor's Duty Log on his return to the institution. In the event the Shift Supervisor is the officer in charge of the jail, he may designate a Senior Correctional Officer to carry out the hospital rounds." "29. c. In all cases where hospital duty is required, the Shift Supervisor will determine that the officers detailed for hospital duty are sui table for assignment, bearing in mind such considera- tion as the physique of the inmate, the charges against him or the sentence he is serving and other relevant issues. The Shift Supervisor should he deem it necessary assign two officers to an inmate/patient if his charges and behaviour warrant this action." The Standing Orders for Hospital Duty at the Toronto Jail were revised on July 30, 1982. The following Sections are rel evant (Exhibit 6) : "b) As far as practical, all operational routines and institutional regulations that normally pertain in the jail will be applied to a hospitalized inmate." 'I c ) Visiting will be allowed as laid down in the regulations, but also subject to the require- ments of the hospital medical staff and in conformity with the hospital visiting hours. Extra or special visits must be applied for in the normal manner. No articles will be allowed to pass between the inmate and his visitor(s), and the duty officer will remain within sight and hearing of the inmate." - 12 - 'm) If it is necessary to leave the inmate, for the purpose of using the washroom, etc., the staff member should attempt to have a hospital orderly or security officer watch the inmate in the staff member's absence. During this type of activity, both handcuffs and leg irons will be applied, with one bracelet of the leg iron affixed to the bed." "n) In the event you cannot carry out your duty, inform the institution as expeditiously as possible; i.e. by telephone or hand radio. Attempt to obtain hospital security officer or police officer assistance until such time as a replacement arrives from the institutuion." "p) If an inmate does escape your custody, first phone the police, give a description and any other details required from the documents in your possession, record the name of the police officer, and the time the information was given. Second, alert hospital security staff or ask other hospital staff to do so, and advise your s upervi sor immediately. I' The Board accepts the Grievor's evidence that he was not advised of nor did he receive a copy of the Institution's revised Hospital Duty Standing Orders of July 30, 1982. However, the fact remains that the Grievor was an experienced officer in Hospital Duty, was aware of the 1975 Standing Orders and accordingly knew the general Hospital routine. In assessing the evidence, the Board finds that the Grievor was honest in his testimony and that his brief Occurrence Report reflected his nervous condition following the escape. We are of the view that he was somewhat confused and disorientated by the ordeal. However, we find that the Grievor could have been - 13 - more explicit in his recollection of the events when he spoke with Superintendent DeGrandis on November 12. Nevertheless, the Grievor's responses leading to the escape of inmate H. establish beyond any doubt that he was negligent in the performance of his duties. There is no evidence that the Grievor was in any way involved in a criminal conspiracy to facilitate the escape. However, beginning with the unauthorized visit of ex-inmate M., the Grievor's actions did demonstrate negligence on his part. We accept the Grievor's evidence that he attempted to prevent the visit of ex-inmate M. and yet his own evidence indicates that he was not in control of the situation on November 8. Clearly, he was negligent in releasing the physical restraints from inmate H. and allowing him to remain in the washroom without constant visual contact. The Grievor's rationale for failure to keep the inmate under constant visual contact is totally inconsistent with his duties as a Correctional Officer. In that regard, the sexual orientation of an inmate is an irrelevant consideration. The duty of a Correctional Officer is to be alert and observant at all times which in turn necessitates constant and uninterrupted visual contact of an inmate. The privacy of an inmate is a secondary consideration to the primary and over- riding consideration of the custody of an inmate. In its presentation, the Union focused much attention to the issue of double escort for hospital duty. That issue has been - 14 - a constant concern to the Union, as indicated by the evidence, and has been the subject of lengthy negotiations between the Parties. Arbitrator Howard Brown recognized the merits of the issue in his interest Award affecting the Parties dated July 25, 1982 (See pages 11, 12 and 13 of the Brown Award). For the purposes of the instant Arbitration, the Board finds that the two patrol issue is not a relevant factor. We accept the evidence of Superintendent DeGrandis that the Grievor's Hospital assignment on November 8 and 9 of inmate H. was not of sufficient complexity to warrant the double escort. The more interesting aspect of the instant Grievance is the appropriateness of the penalty imposed. Relevant considerations affecting the mitigation of penalty were summarized by the late Arbitrator Judge R. W. Reville in his frequently quoted Award of Re United Steelworkers of America, Local 3257 and The Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356. The rationale of Arbitrator Reville bears repetition at pages 356 - 358. "It has been held, however, that where an arbitration board has the power to mitigate the penalty imposed on a grievor, the board should take into considera- tion in arriving at its decision the following factors: 1. The previous good record of the grievor - Re United Steelworkers of America, Local 5297, and Frontenac Floor & Wall Tile Ltd. (1957), 8 L.A.C. 105. - 15 - 2. The long service of the grievor - Re U.A.W., Local 28, and C.C.M. Co. (1954), 5 L.A.C. 1883. 3. Whether or not the offence was an isolated incident in the employment history of the grievor - Re Amalgamated Ass'n of Street, Electric Railway and Motor Coach Employees of Ameri ca and Sandwi ch , Wi ndsor & Amherstburg Railway Co. (1951), 2 L.A.C. 684. 4. Provocation - Re United Brotherhood of Carpenters, Local 2537, and KVP Co. Ltd. (1962), 12 L.A.C. 386. 5. Whether the offence was committed on the spur of the moment as a result of a momentary aberration, due to strong emotional impulses, or whether the offence was premeditated - Re U.A.W., Local 112 and DeHavilland Aircraft of Canada Ltd., being an award of Professor Bora Laskin dated March 13, 1959 (unreported). 6. Whether the penalty imposed has created a special economic hardship for the grievor in the light of his particular circumstances - Re U.A.W., local 127, and Ontario Steel Products Ltd. (1962), 13 L.A.C. 197. either unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination - Re Retail , Wholesale & Department Store Union, Local 414, and Dominion Sotres Ltd. (1961), 12 L.A.C. 164. 7. Evidence that the company rules of conduct, 8. Circumstances negativing intent, e.g., likelihood that the grievor misunderstood the nature or intent of an order given to him, and as a result disobeyed it - Re United Electrical Workers , Local 524, and Canadian General Electric Co. (1957), 8 L.A.C. 132. 9. The seriousness of the offence in terms of company policy and company obligations - Re Mine, Mill and Smelter Workers , Local 598, and Falconbridge Nickel Mines Ltd. (1956), 7 L.A.C. 130. 10. Any other circumstances which the board should properly take into consideration, e.g., (a) failure to the grievor to apologize and settle the matter after being given an opportunity to do so - Re U.A.W., Local 456, and Mueller Ltd. - 16 - (1958), 8 L.A.C. 144; (b) where a grievor was discharged for improper driving of company equipment and the company, for the first time, issued rules governing the conduct of drivers after the discharge, this was held to be a mitigating circumstances - Re Int'l Brotherhood of Teamsters and Riverside Construction Co. (1961), 12 L.A.C. 145; (c) failure of the company to permit the grievor to explain or deny the alleged offence - Re Int'l Brotherhood of Teamsters, Local 979, and Leamington Transport (Western) Ltd. .(1961), 12 L.A.C. 147." Admittedly, the Reville Award related to the industrial setting; however, the rationale of that Award has had general acceptability throughout the field of Arbitration. The Board is of the opinion that some of the considerations summarized in the Reville Award apply to the instant Grievance. The Grievor's work record is generally satisfactory. The reference made in the letter of termination to a similar incident involving the Grievor in 1978 was an improper consideration for the implementation of the penalty of discharge, having regard to a memorandum of agreement signed between the Parties effective May 1, 1981 (Exhibit 16). In addition, the Grievor was co-operative in the investigation of the escape, and candidly admitted his numerous errors in judgement. The Grievor was described by Assistant Superintendent Hugh Nicholson as ''one of the most co-operative people I have ever dealt with - he is a proper gentleman". In our opinion, it is unlikely that the Grievor would repeat his mistakes in the future. At the Hearing, he was forthright in his admission that he would never again remove physical restraints from a hospitalized inmate nor would he permit a hospitalized inmate to remain in a washroom unattended. . ... . ~. . - 17 - The Grievor's seniority dates back to January 23, 1975. It cannot be said that the Grievor has accumulated a lengthy tenure with the Ministry; however, seven years of continuous employment is a significant period and accordingly should not be disregarded. The Grievor's actions leading to the escape of inmate H. appear to be an isolated incident. Mr. Benedict properly admitted that fact in his reply argument. The Board finds that the penalty of discharge does create an economic hardship on the Grievor bearing in mind his age, the unlikely prospect of alternate employment with Government in view of this dismissal, and his unsuccessful attempts to seek alternate employment. The Standing Orders of the Toronto Jail as they pertain to Hospital duty are outdated and are badly in need of revision. That fact was apparent through much of the evidence and was acknowledged by both the Superintendent and the Assistant Superin- tendent. The Board was encouraged to be advised that the Standing Orders are presently being revised. Hopefully many of the current problems associated with Hospital attendance by Correctional Officers will be eliminated. One of the issues that must be addressed is the acceptable duration of Hospital visits to inmates. - 18 - In the event that reliance is to be placed upon the wording of Standing Orders, common sense would dictate that each staff member must be provided with written copies of all Standing Orders and revisions to those Orders. The past practice at the Toronto Jail of posting or reading Standing Orders is an in- adequate method of the dissemination of those Orders. One aspect of this grievance that merits comment is the adequacy of information given to Correctional Officers assigned to Hospital duty. As indicated previously, the Grievor was told only the name of the inmate/patient and the location of the Hospital. That paucity of information was grossly inadequate in the circum- stances. Security will always be a problem when an inmate is admitted to a community Hospital in facilities shared with regular patients. Recognizing that fact, for a Correctional Officer to be effective in the discharge of his duties, that Officer must be provided with all information deemed relevant by the Superintendent, concerning a hospitalized inmate. In the instant grievance, the evidence is clear that the Grievor was unaware of the essential fact that inmate H. had been sentenced to a 15 year term for the offence of break and enter. At the time of the escape, he was awaiting transfer to the appropriate institution. The escape of an inmate is always a serious matter which sets in motion a series of potential consequences. The cost factor in the apprehension of an inmate who has escaped, the possibility of criminal activity while that inmate is at large, and the future - 19 - relationship between the institution and a community Hospital, are but a few of those consequences. In our view, it is commendable that Superintendent DeGrandis did not wish to be constrained by the* disciplinary responses of his predecessors for similar offences. However, it is somewhat unrealistic to totally ignore those past responses. To do so inevitably leads to the charge of harsh and arbitrary action and inconsistency in disciplinary approach. Several examples of past disciplinary responses, and lack of discipline for similar violations of Standing Orders at the Toronto Jail were presented in evidence. No evidence was presented of a dismissal of a Correctional Officer as a result of the escape of an inmate. The responsibility for the administration of discipline falls within the jurisdiction of the Superintendent of any institution, subject to arbitral review. Clearly, each case must be determined on its own particular set of facts. In our opinion the penalty of discharge imposed upon the Grievor was unduly harsh. Accordingly, we exercise our authority by virtue of Section 19(e) of the Crown Employees Collective Bargaining Act. The Board considered the following Awards in its deliberations as to the appropriate penalty - Ibbitson, (Public Service Staff Relations Board June 9, 1981); Johnston, 14/83 (Verity); Hopcraft, 4/75 (Beatty); - Foy, 99/79 (Swinton); and McQueen, 430/80 (Delisle). Having regard to these cases and to - 20 - the rationale of the Re United Steelworkers of America case cited above, the Grievor's departure from the Standing Orders, but also having regard to the employer's indirect and possibly incomplete communication of these Standing Orders as well as its failure to provide the Grievor with adequate information about the inmate, the Board is of the opinion that the Grievor must bear some financial penalty. Following the final day of Hearing on May 30, 1983, the Board reinstated the Grievor to his position as a Correctional Officer 2 at the Toronto Jail without loss of seniority. In lieu of discharge, the Board shall substitute a penalty of a three month suspension without pay upon the Grievor. The Grievor shall be compensated for loss of wages and benefits at his regular salary (no overtime entitlement) subsequent to the three month suspension to and including the date of his reinstatement, minus any U.I.C. benefits received by the Grievor in the interim. We shall retain jurisdiction in the event the Parties are unable to determine the appropriate compensation. - 21 - DATED at Brantford, Ontario this 23rd day of June, 1983. R.L. Verity, Q.C. Vice Chairman - S. Kaufman memb e r A.M. McCuaig Member 4: 1500 7: 3000 7: 3610 7 : 4000 7: 4300 7 : 4400